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« Private mischief must be borne with patience, for preventing a national calamity.”—Where is this maxim in law and good policy to be found ? And how can that be a maxim which is not consistent with common sense ? If the maxim had been, that private mischiefs, which prevent a national calamity, ought to be generously compensated by the nation, one might understand it: but that such private mischiefs are only to be borne with patience, is absurd !
V. “ The expedient, &c. And, &c.” (Paragraphs 2 and 3.)-Twenty ineffectual or inconvenient schemes will not justify one that is unjust.
Ib. “Upon the foot of, &c."-Your reasoning, indeed, like a lie, stands but upon one foot; truth upon two,
Page 160. “ Full wages.”—Probably the same they had in the merchant's service.
Page 174. “I hardly admit, &c." (Paragraph 5.) When this author speaks of impressing, page 158, he diminishes the horror of the practice as much as possible, by presenting to the mind one sailor only suffering hardship (as he tenderly calls it) in some particular cases only: and he places against this private mischief the inconvenience to the trade of the kingdom. But if, as he supposes is often the case, the sailor who is pressed, and obliged to serve for the defence of trade, at the rate of twenty-five shillings a month, could get three pounds fifteen shillings in the merchant's seryice, you take from him fifty shillings a month ; and if you have a 100,000 in your service, you rob this honest industrious part of society, and their poor families, of 250,0001. per month, or three millions a year, and at the same time oblige them to hazard their lives in lighting for the defence of your trade ; to the defence of which all ought indeed to contribute (and sailors among the rest) in proportion to their profits by it; but this three millions is more than their share, if they
did not pay with their persons; but when you force that, methinks you should excuse the other.
But it may be said, to give the king's seamen merchant's wages would cost the nation too much, and call for more taxes. The question then will amount to this : whether it be just in a community, that the richer part should compel the poorer to fight in defence of them and their properties, for such wages as they think fit to allow, and punish them if they refuse ? Our author tells us that it is “ legal." I have not law enough to dispute his authorities, but I cannot persuade myself that it is equitable. I will, however, own for the present, that it may be lawful when necessary; but then I contend that it may be used so as to produce the same good effects the public security, without doing so much intolerable injustice as attends the impressing common seamen. In order to be better understood, I would premise two things ; First, that voluntary seamen may be had for the service, if they were sufficiently paid. The proof is, that to serve in the same ship, and incur the same danger, you have no occasion to impress captains, lieutenants, second lieutenants, midshipmen, pursers, nor many other officers. Why, but that the profits of their places, or the emoluments expected, are sufficient inducements ? The business then is, to find money, by impressing, sufficient to make the sailors all volunteers, as well as their officers; and this without any fresh burthen upon trade. The second of my premises is, that twentyfive shillings a month, with his share of salt beef, pork, and pease pudding, being found sufficient for the subsistence of a hard working seaman, it will certainly be so for a sedentary scholar or gentleman. I would then propose to form a treasury, out of which encouragements to seamen should be paid. To fill this treasury, I would impress a number of civil officers, who at present have great salaries, oblige them to serve in their respective offices for twenty-five shillings a
month, with their shares of mess provisions, and throw the rest of their salaries into the seamen's treasury. If such a press-warrant were given me to execute, the first I would press should be a Recorder of Bristol, or a Mr. Justice Foster, because I might have need of his edifying example, to show how much impressing ought to be borne with; for he would certainly find, that though to be reduced to twenty-five shillings a month might be a private mischief, yet that, agreeably to his maxim of law and good policy, it ought to be borne with patience, for preventing a national
calamity. Then I would press the rest of the Judges; and, opening the red book, I would press every civil officer of government from 501. a year salary, up to 50,0001. which would throw an immense sum into our treasury; and these gentlemen could not complain, since they would receive twenty-five shillings a month, and their rations : and this without being obliged to fight. Lastly, I think I would impress ****
ON THE CRIMINAL LAWS, AND THE PRACTICE
LETTER TO BENJAMIN VAUGHAN, ESQ.
March 14th, 1785.
MY DEAR FRIEND,
Among the pamphlets you lately sent me, was one entitled Thoughts on Executive Justice. In return for that, I send you one on the same subject, Observations concernant l'Execution de l’ Article II. de la Declaration sur le Vol. They are both addressed to the Judges, and written, as you will see, in a very different spirit. The English author is for hanging all thieves. The Frenchman is for proportioning punishments to offences.
If we really believe, as we profess to believe, that the law of Moses was the law of God, the dictates of divine wisdom, infinitely superior to human ; on what principles do we ordain death as the punishment of an offence, which according to that law, was only to be punished by a restitution of four-fold ?-To put a man to death for an offence which does not deserve death, is it not a murder? And as the French writer says, Doit-on pueir un delit contre la societe par un crime contre la nature ?
Superfluous property is the creature of society. Simple and mild laws were sufficient to guard the property that was merely necessary. The savages
' bow, his hatchet, and his coat of skins, were sufficiently secured, without law, by the fear of personal resentment and retaliation. When, by virtue of the first laws, part of the society accumulated wealth, and grew powerful, they enacted others more severe, and would protect their property at the expense of humanity. This was abusing their power, and commencing a tyranny. If a savage, before he entered into society, had been told—“ Your neighbour by this means, may become owner of an hundred deer; but if your brother, or your son, or yourself, having no deer of your own, and being hungry, should kill one, an infamous death must be the consequence:” he would probably have prefered his liberty, and his common right of killing any deer, to all the advantages of society that might be proposed to him.
That it is better a hundred guilty persons should escape, than that one innocent person should suffer, is a maxim that has been long and generally approved ; never, that I know of, controverted. Even the san. guinary author of the thoughts agrees to it, adding well, that the very thought of injured innocence, and much more that of suffering innocence, must awaken all our tenderest and most compassionate feelings, and at the same time raise our highest indignation against
the instruments of it. But,” he adds,
" there is no danger of either from a strict adherence to the laws."! -Really!-Is it then impossible to make an unjust law ? and if the law itself be unjust, may it not be the very “ instrument” which ought“ to raise the author's and every body's highest indignation ?" I see in the last newspapers from London, that a woman is capitally convicted at the Old Bailey, for privately stealing out of a shop some gauze, value fourteen shillings and three-pence : Is there any proportion between the injury done by a theft, value fourteen shillings and three-pence, and the punishment of a human creature by death on a gibbet ? Might not that woman, by her labour have made the reparation ordained by God, in paying fourfold? Is not all punishment inflicted beyond the merit of the offence, so much punishment of innocence ? In this light, how vast is the annual quantity, of not only injured but suffering innocence, in almost all the civilized states of Europe !
But it seems to have been thought that this kind of innocence may be punished by way of preventing crimes. I have read, indeed, of a cruel Turk in Barbary, who, whenever he bought a new Christian slave ordered him immediately to be hung up by the legs, and to receive a hundred blows of a cudgel on the soles of his feet, that the severe sense of the punishment, and fear of incurring it thereafter, might prevent the faults that should merit it. Our author himself would hardly approve entirely of this Turk’s conduct in the government of slaves ; and yet he appears to recommend something like it for the government of English subjects, when he applauds the reply of Judge Barnet to the convict horse-stealer ; who being asked what he had to say why judgment of death should not pass against him, and answered that it was hard to hang a man for only stealing a horse, was told by the judge,
Man, thou art not to be hanged only for stealing a horse, but that horses may not be stolen.” The man's answer, if candidly examined, will, I imagine, appear