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LETTER FROM DR. BENJAMIN FRANKLIN TO BENJAMIN VAUGHAN, ESQ. ON THE CRIMINAL LAWS, AND THE PRACTICE OF PRIVATEERING.
My Dear FRIEND,
March 14, 1785. Among the pamphlets you lately sent me, was one entitled,
Thoughts on Executive Justice.” In return for that, I send you a French one on the same subject, entitled, “ Observations concernant l'Execution de l’Article 2. de la declaration sur le vol.” They are both addressed to the judges, but 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 is the law of God, and 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 fourfold ? To put a man to death for a crime which does not deserve death, is it not murder ? And as the French writer says, “ Doit-on punir un délit contre la société par un crime contre la nature 2"
Superfluous property is the creature of society. Simple and mild laws were sufficient to guard the property which was merely necessary. The savage's 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 expence 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 should be the consequence;" he would probably have preferred 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 an hundred guilty persons escape, than that one innocent person should suffer, is a maxim that has been long and generally approved, and never, that I know of, controverted. Even the sanguinary author of the " Thoughts, &c.” agrees to it, observing, “ 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 news-papers 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, and the punishment of an human creature for this offence is by death on a gibbet! Might not that woman, by her own labour and industry, 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 heels, and to receive an 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.
He applauds the reply of judge Burnet to the convicted horse-stealer, who being asked what he had to say, why judgment of death should not be passed against him? 'and answering, that it was hard to hang a man for only stealing a lorse, was told by the judge,“ man, thou art not to be hanged only for stealing a horse, but that horses may not be stolen.”
But the man's answer, if candidly examined, will, I imagine, appear reasonable, as being founded upon the eternal principles of justice and equity, that punishments should be proportioned to offences, and the judge's reply brutal and unreasonable, though the writer “ wishes all judges to carry it with them whenever they go the circuits, and to bear it in their minds, as containing a wise reason fir all the penal sta. tutes which they are called upon to put in execution.”
“It at once illustrates (says he) the true grounds and reacone of all capital punishments whatsoever, namely, that crery man's property, as well as his life, may be held sacred an inviolate.”
Is there then no differeuce in value between property and life? If I think it right that the crime of murder be punished with death, not only as an equal punishment of the crime, but to prevent other murders, does it follow that I must approve of inflicting the same punishment for a little invasion of my property by theft? if I am not myself so barbarous, so bloody-minded, and revengeful, as to kill a fellow creature for stealing from me fourteen shillings, and three peace, how can I approve of a law that does it ?
Montesquieu, who was himself a judge, endeavours to impress other maxims. He must have known how humane judges feel on such occasions, and what the effects of those feelings are; and so far from thinking that severe and excessive punishments prevent crimes, he asserts, as quoted by our French writer, that
“L'alrocité des loix en empêche l'exécution.”
“ Lorsque la peine est sans mesure on est souvent obligé de lui préférer l'impunité.”
“ La cause de tous les relâchemens vient de l'impunité des crimes, et non de la moderation des peines.”
It is said, by those who know Europe generally, that there are more thefts committed and punished annually in England than in all other nations pụt together. If this be so, there must be a cause or causes for such great depravity in the connnon people.
I am, &c.
I next attended the Sheriff's officers to the prison, which had been formerly built for the purposes of war, and consisted of one large apartment, strongly grated, and paved with stone, common to both felons and debtors at certain hours in the four and twenty. Besides this, every prisoner had a separate cell, where he was locked in for the night.
I expected, upon my entrance, to find nothing but lamentations, and various sounds of misery ; but it was very different. The prisoners seemed all employed in one common design, that of forgetting thought in merriment or clamour. I was apprised of the usual perquisite required upon these occasions, and immediately complied with the demand, though the little money I had was very near being all exhausted. This was im. mediately sent away for liquor, and the whole prison was soon filled with riot, laughter, and profaneness.
“How!” cried I to myself, “sball men so very wicked be cheerful, and shall I be melancholy? I feel only the same confinement with them, and I think I have more reason to be happy.”
With such reflections I laboured to become cheerful ; but cheerfulness was never yet produced by effort, which is itself painful. As I was sitting, therefore, in a corner of the gaol, in a pensive posture, one of my fellow prisoners' came up, and sitting by me, entered into conversation. It was my constant rule in life never to avoid the conversation of any man who