Works of the late Doctor Benjamin Franklin/On the Criminal Laws, and the Practice of Privateering
ON THE CRIMINAL LAWS, AND THE PRACTICE OF PRIVATEERING.
LETTER TO BENJAMIN VAUGHAN, ESQ.
MY DEAR FRIEND,
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 fame ſubject, Obſervations concernant l'Exécution de l’Article II. de la Declaration fur 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 dlit contre la ſocieté 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 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 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!—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 four-fold? 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 almoft 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 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 are 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 beheld 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 three-pence, 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 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 empéche l’exécution.
"Lorſque la peìne 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"
It is laid 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 our common people. May not one be the deficiency of juſtice and morality in our national government, manifeſted in bur oppreſſive conduct to ſubjects, and unjuſt wars on our neighbours? View the long-perſiſted in, unjuſt, monopolizing treatment of Ireland, at length acknowledged! View the plundering government exerciſed by our 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 neighbour nations as between neighbour citizens. A highway-man 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, "is it ſtrange that, being put out of that employ by peace, they ſtill continue robbing, and rob one another? Piraterie, as the French call it, or privateering, is the univerſal bent of the Engliſh nation, at home and abroad, wherever ſettled. No leſs than ſeven hundred privateers were, it is ſaid, commiſſioned in the laſt war! Theſe were fitted out by merchants, to prey upon other merchants, who had never done them any injury. Is there probably any one of thoſe privateering merchants of London, who were ſo ready to rob the merchants of Amſterdam, that would not as readily plunder another London merchant of the next ſtreet, if he could do it with the ſame impunity! The avidity, the alieni appetens is the ſame; it is the fear alone of the gallows that makes the difference. How then can a nation, which, among the honeſteſt of its people, has ſo many thieves by inclination, and whoſe government encouraged and commiſſioned no leſs than ſeven hundred gangs of robbers; how can ſuch a nation have the face to condemn the crime in individuals, and hang up twenty of them in a morning! It naturally puts one in mind of a Newgate anecdote. One of the priſoners complained, that in the night ſomebody had taken his buckles out of his ſhoes. "What the devil!" ſays another, "have we then thieves amongſt us? It muſt not be ſuffered. Let us ſearch out the rogue, and pump him to death."
There is, however, one late inſtance of an Engliſh merchant who will net profit by ſuch ill-gotten gain. He was, it ſeems, part-owner of a ſhip, which the other owners thought fit to employ as a letter of marque, and which took a number of French prizes. The booty being ſhared, he has now an agent here enquiring, by an advertiſement in the Gazette, for thoſe who ſuffered the loſs, in order to make them, as far as in him lies, reſtitution. This conſcientious man is a quaker. The Scotch preſbyterians were formerly as tender; for there is ſtill extant an ordinance of the town-council of Edinburgh, made ſoon after the Reformation, "forbidding the purchaſe of prize goods, under pain of loſing the freedom of the burgh for ever, with other puniſhment at the will of the magiſtrate; the practice of making prizes being contrary to good conſcience, and the rule of treating Chriſtian brethren as we would wiſh to be treated and ſuch goods are not to be ſold by any godly men within this burgh." The race of theſe godly men in Scotland is, probably extinct, or their principles are abandoned ſince, as far as that nation had a hand in promoting the war againſt the colonies, prizes and confiſcations are believed to have been a conſiderable motive.
It has been for ſome time a generally-received opinion, that a military man is not to enquire whether a war be juſt or unjuſt; he is to execute his orders. All princes who are diſpoſed to become tyrants, muſt probably approve of this opinion, and be willing to eſtabliſh it; but is it not a dangerous one? ſince, on that principle, if the tyrant commands his army to attack and deſtroy, not only an unoffending neighbour nation, but even his own ſubjects, the army is bound to obey. A negro ſlave, in our colonies, being commanded by his maſter to rob or murder a neighbour, or do any other immoral act, may refuſe; and the magiſtrate will protect him in his refuſal. The ſlavery then of a ſoldier is worſe than that of a negro! A conſcientious officer, if not reſtrained by the apprehenſion of its being imputed to another cauſe, may indeed reſign, rather than be employed in an unjuſt war; but the private men are ſlaves for life; and they are perhaps incapable of judging for themſelves. We can only lament their fate, and ſtill more that of a ſailor, who is often dragged by force from his honeſt occupation, and compelled to imbrue his hands in perhaps innocent blood. But methinks it well behoves merchants (men more enlightened by their education, and perfectly free from any ſuch force or obligation) to conſider well of the juſtice of a war, before they voluntarily engage a gang of ruffians to attack their fellow-merchants of a neighbouring nation, to plunder them of their property, and perhaps ruin them and their families, if they yield it; or to wound, maim, and murder them, if they endeavour to defend it. Yet theſe things are done by Chriſtian merchants, whether a war be juſt or unjuſt; and it can hardly be juſt on both ſides. They are done by Engliſh and American merchants, who, nevertheleſs, complain of private theft, and hang by dozens the thieves they have taught by their own example.
It is high time, for the ſake of humanity, that a ſtop were put to this enormity. The United States of America, though better ſituated than any European nation to make profit by privateering (moſt of the trade of Europe, with the Weſt Indies, paſſing before their doors), are, as far as in them lies, endeavouring to aboliſh the practice, by offering, in all their treaties with other powers, an article, engaging ſolemnly, that, in caſe of future war, no privateer ſhall be commiſſioned on either ſide; and that unarmed merchant-ſhips, on both ſides, ſhall purſue their voyages unmoleſted[1]. This will be a happy improvement of the law of nations. The humane and the juſt cannot but wiſh general ſucceſs to the propoſition.
With unchangeable eſteem and affection,
I am, my dear friend,
Ever yours.
- ↑ This offer having been accepted by the late king of Pruſſia, a treaty of amity and commerce was concluded between that monarch and the United States, containing the
following humane, philanthropic article; in the formation of which Dr. Franklin, as one of the American plenipotentiaries, was principally concerned, viz.
ART. XXIII.
If war ſhould ariſe between the two contracting parties, the merchants of either country, then reſiding in the other, ſhall be allowed to remain nine months to collect their debts and ſettle their affairs, and may depart freely, carrying off all their effects without moleſtation or hindrance: and all women and children, ſcholars of every faculty, cultivators of the earth, artiſans, manufacturers, and fiſhermen, unarmed and inhabiting unfortified towns, villages, or places, and in general all others whoſe occupations are for the common ſubſiſtence and benefit of mankind, ſhall be allowed to continue their reſpective employments, and ſhall not be moleſted in their perſons, nor ſhall their houſes or goods be burnt, or otherwiſe deſtroyed, nor their fields waſted, by the armed force of the enemy into whoſe power, by the events of war, they may happen to fall; but if any thing is neceſſary to be taken from them for the uſe of ſuch armed force, the ſame ſhall be paid for at a reasonable price. And all merchant and trading veſſels employed in exchanging the products of different places, and thereby rendering the neceſſaries, conveniences, and comforts of human life more eaſy to be obtained, and more general, ſhall be allowed to paſs free and unmoleſted; and neither of the contraſting powers ſhall grant or iſſue any commiſſion to any private armed veſſels, empowering them to take or deſtroy ſuch trading veſſels, or interrupt ſuch commerce.