other hand, that every restraint upon natural liberty is not eo nomine illegal, or at all inconsistent with the principles of civil liberty. And if the restraint, be it to what degree soever, appeareth to be necessary to the good and welfare of the whole, and to be warranted by statute law, as well as immemorial usage, it cannot be complained of otherwise than as a private mischief;' which, as I said at the beginning, must under all governments whatsoever be submitted to for avoiding a public inconvenience.*

I

"It cannot be complained of otherwise than as a PRIVATE MISCHIEF, which MUST be submitted to for avoiding a public inconvenience."-I do not see the propriety of this must. The private mischief is the loss of liberty and hazard of life, with only half wages, to a great number of honest men. The public inconvenience is merely a higher rate of seamen's wages. He who thinks such private injustice must be done to avoid public inconvenience, may understand law, but seems imperfect in his knowledge of equity. Let us apply this author's doctrine to his own case. It is for the public service that courts should be had and judges appointed to administer the laws. The judges should be bred to the law and skilled in it, but their great salaries are a public inconvenience. To remove the inconvenience, let press warrants issue to arrest and apprehend the best lawyers, and compel them to serve as judges for half the money they would have made at the bar. Then tell them, that though this is to them a private mischief, it must be submitted to for avoiding a public inconvenience. Would the learned judge approve such use of his doctrine?

* When the 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 a 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 I suppose is often the case, the sailor who is pressed and obliged to serve for the defence of this trade at the rate of 25s. a month, could have 31. 15s. in the merchant's service, you take from him 50s. a month; and if you have 100,000 in your service, you rob that honest part of society and their poor families of 250,000l. per month, or three millions a year, and at the same time oblige them to hazard their lives in fighting 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; and 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 for them and their properties, for such wages as they think fit to allow, and punish them if they refuse? Our author tells us it is legal. I have not law enough to dispute his authorities, but I cannot persuade myself it is equitable. I will however own for the present, that pressing may be lawful when necessary; but then I contend that it may be used so as to produce the same good effect, the public security, without doing so much horrible injustice as attends the impressing common seamen. In order to be better understood, I would premise two things. 1st. That voluntary seamen might be had for the service, if they were suffi,

Page 177. For I freely declare, that ancient precedents alone, unless supported by modern practice, weigh very little with me in questions of this nature.' Page 179. I make no apology for the length of my argument, because I hope the importance of the question will be thought a sufficient excuse for me in this respect.

ciently paid. The proof of this is, that to serve in the same ships, and incur the same dangers, you have no occasion to impress captains, lieutenants, second lieutenants, midshipmen, pursers, nor any other officers. Why, but that the profit of their places, or the emoluments expected, are sufficient inducements? The business then is by impressing to find money sufficient to make the sailors all volunteers, as well as their officers; and this without any fresh burthen upon trade. The 2nd of my premises is, that 25s. a month with his share of the salt beef, pork and peas-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 encouragement 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 25s. per month, with their share of the mess provisions, and throw the rest of their salaries into the seaman's treasury. If such a press-warrant was given me to execute, the first person I would press should be a recorder of Bristol, or a Mr. Justice Forster, because I might have need of his edifying example to show how such impressing ought to be borne with; for he would certainly find, that though to be reduced to 258. per 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 50l. a year up to 50,000l. which would throw an immense sum into our treasury; and these gentlemen could not well complain, since they would receive their 258. a month and their rations, and that too without being obliged to fight. Lastly, I think I would impress the king, and confiscate his salary; but from an ancient prejudice I have in favor of that title, I would allow him the gentleman merchant's pay.. I could not well go farther in his favor; for to say the truth, I am not quite satisfied of the necessity or utility of that office in Great Britain, as I see many florishing states in the world governed well and happily without it.

1

The modern practice supported by ancient precedents, weighs as little with me. Both the one and the other only show that the constitution is yet imperfect, since in so general a case it doth not secure liberty but destroys it; and the parliaments are unjust, conniving at oppression of the poor, where the rich are to be gainers or savers by such oppression.

2

The author could not well have made his argument shorter. It required a long discourse to throw dust in the eyes of common sense, confound all our ideas of right and wrong, make black seem white, and the worse appear the better opinion.

ON THE CRIMINAL LAWS, AND THE PRACTICE OF

PRIVATEERING.

To B. VAUGHAN, ESQ.

66

MY DEAR FRIEND,

March 14, 1785.

AMONG the pamphlets you lately sent me, was one intitled, Thoughts on Executive Justice." In return for that, I send you a French one on the same subject, "Observations concernant l'Exécution de l'Article II. de la Déclaration 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 was the law of God, the dictate 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 an offence which does not deserve death, is it not a murder? And, as the French writer says, "Doit-on punir un délit contre la société, 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 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 expense of humanity. This was abusing their power, and commencing a tyranny. If a savage, before he entered into society, had been told,-" Your neighbor 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 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 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 sanguinary 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! It is 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 threepence: is there any proportion between the injury done by a theft, value fourteen shillings and threepence, and the punishment of a human creature, by death, on a gibbet? Might not that woman, by her labor, 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 civilised 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 Burnet to the convict horse-stealer, who, being asked what he had to say why judgment of death should not pass against him, and answering, 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 reasonable, as being founded on the eternal principle 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 circuit, and to bear it in their minds as containing a wise reason for all the penal statutes, which they are called upon to put in execution. It at once

illustrates," says he, "the true grounds and reasons of all capital punishments whatsoever, namely, that every man's property as well as his life, may be held sacred and inviolate." Is there then no difference in value between property and life? If I think it right, that the crime of murder should 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 on 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 threepence, how can I approve of a law that does it? Montesquieu, who was himself a judge, endeavors to impress other maxims.

He must have known what humane judges feel on such occasions, and what the effects of those feelings; and so far from thinking that severe and excessive punishments prevent crimes, he asserts, as quoted by our French writer, that "L'atrocité des loix en empêche l'exécution.

66

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 modération des peines."

in

It is said by those who know Europe generally, that there are more thefts committed and punished annually in England than in all the other nations put together. If this be so, there must be a cause or causes for such depravity in your common people. May not one be the deficiency of justice and morality your national government, manifested in your oppressive conduct to your subjects, and unjust wars on your neighbors? View the long-persisted in, unjust monopolising treatment of Ireland at length acknowledged! View the plundering government exercised by your merchants in the Indies; the confiscating war made upon the American colonies; and, to say nothing of those upon France and Spain, view the late war upon Holland, which was seen by impartial Europe in no other light than that of a war of rapine and pillage; the hopes of an immense and easy prey being its only apparent and probably its true and real motive and encouragement. Justice is as strictly due between neighbor nations as between neighbor citizens. A highwayman is as much a robber when he plunders in a gang as when single; and a nation that makes an unjust war, is only a great gang. After employing your people in robbing the Dutch, strange is it, that being put out of that employ by peace, they still continue robbing and rob one another! Piraterie, as the French call it, or