Turkeys 171
Walter"s and Stoddart"s Paragraphs 152
Walter Scott"s Poems 152
Want, the Parent of Crime 18
Wakefield, Mr. Edward 78, 99
Wilberforce"s Potatoe-Diet 152
Winchelsea, Lord. 144
Woodhouse, Miss 213
Yeast 203
COBBETT"S POOR MAN"S FRIEND;
A DEFENCE OF THE RIGHTS OF THOSE WHO DO THE WORK, AND FIGHT THE BATTLES.
COBBETT"S POOR MAN"S FRIEND.
NUMBER I.
TO THE WORKING CLa.s.sES OF PRESTON.
_Burghclere, Hampshire, 22d August, 1826._
MY EXCELLENT FRIENDS,
1. Amongst all the new, the strange, the unnatural, the monstrous things that mark the present times, or, rather, that have grown out of the present system of governing this country, there is, in my opinion, hardly any thing more monstrous, or even so monstrous, as the language that is now become fashionable, relative to the condition and the treatment of that part of the community which are usually denominated the POOR; by which word I mean to designate the persons who, from age, infirmity, helplessness, or from want of the means of gaining anything by labour, become dest.i.tute of a sufficiency of food or of raiment, and are in danger of perishing if they be not relieved. Such are the persons that we mean when we talk of THE POOR; and, I repeat, that amongst all the monstrous things of these monstrous days, nothing is, in my opinion, so monstrous as the language which we now constantly hear relative to the condition and treatment of this part of the community.
2. Nothing can be more common than to read, in the newspapers, descriptions the most horrible of the sufferings of _the Poor_, in various parts of England, but particularly in the North. It is related of them, that they eat horse-flesh, grains, and have been detected in eating out of pig-troughs. In short, they are represented as being far worse fed and worse lodged than the greater part of the pigs. These statements of the _newspapers_ may be false, or, at least, only partially true; but, at a public meeting of rate-payers, at Manchester, on the 17th of August, Mr.
BAXTER, the Chairman, said, that some of the POOR had been _starved to death_, and that _tens of thousands were upon the point of starving_; and, at the same meeting, Mr. POTTER gave a detail, which showed that Mr.
BAXTER"S general description was true. Other accounts, very nearly official, and, at any rate, being of unquestionable authenticity, concur so fully with the statements made at the Manchester Meeting, that it is impossible not to believe, that a great number of thousands of persons are now on the point of perishing for want of food, and _that many have actually perished from that cause_; and that this has taken place, and is taking place, IN ENGLAND.
3. There is, then, no doubt of the existence of the disgraceful and horrid facts; but that which is as horrid as are the facts themselves, and even more horrid than those facts, is the cool and _unresentful_ language and manner in which the facts are usually spoken of. Those who write about the misery and starvation in Lancashire and Yorkshire, never appear to think _that any body is to blame_, even when the poor die with hunger. The Ministers ascribe the calamity to "_over-trading_;" the cotton and cloth and other master-manufacturers ascribe it to "_a want of paper-money_," or to the _Corn-Bill_; others ascribe the calamity to the _taxes_. These last are right; but what have these things to do with the treatment of the poor? What have these things to do with the horrid facts relative to the condition and starvation of English people? It is very true, that the enormous taxes which we pay on account of loans made to carry on the late unjust wars, on account of a great standing army in time of peace, on account of pensions, sinecures and grants, and on account of _a Church_, which, besides, swallows up so large a part of the produce of the land and the labour; it is very true, that these enormous taxes, co-operating with the paper-money and its innumerable monopolies; it is very true, that _these enormous taxes_, thus a.s.sociated, have produced the ruin in trade, manufactures and commerce, and have, of course, produced the _low wages_ and the _want of employment_; this is very true; but it is not less true, that, be wages or employment as they may, the poor are not to perish with hunger, or with cold, while the rest of the community have food and raiment more than the latter want for their own sustenance. The LAW OF ENGLAND says, that there shall be no person to suffer from want of food and raiment. It has placed _officers_ in every parish to see that no person suffer from this sort of want; and lest these officers should not do their duty, _it commands all the magistrates_ to hear the complaints of the poor, and to compel the officers to do their duty. The LAW OF ENGLAND has provided ample means of relief for the poor; for, it has authorized the officers, or overseers, to get from the rich inhabitants of the parish as much money as _is wanted_ for the purpose, without any limit as to amount; and, in order that the overseers may have no excuse of inability to make people pay, the law has armed them with powers of a nature the most efficacious and the most efficient and most prompt in their operation. In short, the language of the LAW, to the overseer, is this: "Take care that no person suffer from hunger, or from cold; and that you may be sure not to fail of the means of obeying this my command, I give you, as far as shall be necessary for this purpose, full power over all the lands, all the houses, all the goods, and all the cattle, in your parish." To the Justices of the Peace the LAW says: "Lest the overseer should neglect his duty; lest, in spite of my command to him, any one should suffer from hunger or cold, I command you to be ready to hear the complaint of every sufferer from such neglect; I command you to summon the offending overseer, and to compel him to do his duty."
4. Such being the language of the LAW, is it not a monstrous state of things, when we hear it commonly and coolly stated, that many thousands of persons in England are _upon the point of starvation_; that _thousands will die of hunger and cold next winter_; that many have _already died of hunger_; and when we hear all this, unaccompanied with one word of _complaint against any overseer_, or any _justice of the peace_! Is not this state of things perfectly monstrous? A state of things in which it appears to be taken for granted, that the LAW is nothing, when it is intended to operate as a protection to the poor! Law is always law: if one part of the law may be, with impunity, set at defiance, why not another and every other part of the law? If the law which provides for the succour of the poor, for the preservation of their lives, may be, with impunity, set at defiance, why should there not be impunity for setting at defiance the law which provides for the security of the property and the lives of the rich? If you, in Lancashire, were to read, in an account of a meeting in Hampshire, that, here, the farmers and gentlemen were constantly and openly robbed; that the poor were daily breaking into their houses, and knocking their brains out; and that it was expected that great part of them would be killed very soon: if you, in Lancashire were to hear this said of the state of Hampshire, what would you say? Say! Why, you would say, to be sure, "Where is the LAW; where are the constables, the justices, the juries, the judges, the sheriffs, and the hangmen? Where can that _Hampshire_ be? It, surely, never can be in Old England. It must be some savage country, where such enormities can be committed, and where even those, who talk and who _lament_ the evils, never utter one word in the way of _blame_ of the perpetrators." And if you were called upon to pay taxes, or to make subscriptions in money, to furnish the means of protection to the unfortunate rich people in Hampshire, would you not say, and with good reason, "No: what should we do this for? The people of Hampshire have the SAME LAW that we have; they are under the same Government; _let them duly enforce that law_; and then they will stand in no need of money from us to provide for their protection."
5. This is what common sense says would be _your_ language in such a case; and does not common sense say, that the people of Hampshire, and of every other part of England, will thus think, when they are told of the sufferings, and the starvation, in Lancashire and Yorkshire! The report of the Manchester ley-payers, which took place on the 17th of August, reached me in a friend"s house in this little village; and when another friend, who was present, read, in the speeches of Mr. BAXTER and Mr. POTTER, that tens of thousands of Lancashire people were _on the point of starvation_, and that many had already _actually died from starvation_; and when he perceived, that even those gentlemen uttered not a word of _complaint_ against either overseer or justices of the peace, he exclaimed: "What! are there _no poor-laws_ in Lancashire? Where, amidst all this starvation, is the overseer? Where is the justice of the peace? Surely that Lancashire can never be _in England_?"
6. The observations of this gentleman are those which occur to every man of sense; when he hears the horrid accounts of the sufferings in the manufacturing districts; for, though we are all well aware, that the burden of the poor-rates presses, at this time, with peculiar weight on the land-owners and occupiers, and on owners and occupiers of other real property, in those districts, we are equally well aware, that those owners and occupiers _have derived great benefits_ from that vast population that now presses upon them. There is _land_ in the parish in which I am now writing, and belonging to the farm in the house of which I am, which land would not let for 20_s._ a statute acre; while land, not so good, would let, in any part of Lancashire, near to the manufactories, at 60_s._ or 80_s._ a statute acre. The same may be said with regard to _houses_. And, pray, are the owners and occupiers, who have gained so largely by the manufacturing works being near their lands and houses; are they, _now_, to complain, if the vicinage of these same works causes a charge of rates _there_, heavier than exists _here_? Are the owners and occupiers of Lancashire to enjoy _an age of advantages_ from the labours of the spinners and the weavers; and are they, when a reverse comes, _to bear none of the disadvantages_? Are they to make no sacrifices, in order to save from perishing those industrious and ever-toiling creatures, by the labours of whom their land and houses have been augmented in value, three, five, or perhaps tenfold? None but the most unjust of mankind can answer these questions in the affirmative.
7. But as _greediness_ is never at a loss for excuses for the hard-heartedness that it is always ready to practise, it is said, that _the whole of the rents_ of the land and the houses would not suffice for the purpose; that is to say, that if the poor rates were to be made so high as to leave the tenant no means of paying rent, even then some of the poor must go without a sufficiency of food. I have no doubt that, in particular instances, this would be the case. But for cases like this the LAW has amply provided; for, in every case of this sort, _adjoining parishes_ may be made to _a.s.sist_ the hard pressed parish; and if the pressure becomes severe on these adjoining parishes, those _next adjoining them_ may be made to a.s.sist; and thus the call upon adjoining parishes maybe extended till it reach _all over the county_. So good, so benignant, so wise, so foreseeing, and so effectual, is this, the very best of all our good old laws! This law or rather code of laws, distinguishes England from all the other countries in the world, _except the United States of America_, where, while hundreds of other English statutes have been abolished, this law has always remained in full force, this great law of mercy and humanity, which says, that _no human being that treads English ground shall perish for want of food and raiment_. For such poor persons as are _unable to work_, the law provides food and clothing; and it commands that _work_ shall be provided for such as are able to work, and _cannot otherwise get employment_. This law was pa.s.sed more than _two hundred years_ ago. Many attempts have been made to _chip it away_, and some have been made to destroy it altogether; but it still exists, and every man who does not wish to see general desolation take place, will do his best to cause it to be duly and conscientiously executed.
8. Having now, my friends of Preston, stated what the law is, and also the reasons for its honest enforcement in the particular case immediately before us, I will next endeavour to show you that it is founded in the law of nature, and that, were it not for the provisions of this law, people would, according to the opinions of the greatest lawyers, have _a right_ to _take_ food and raiment sufficient to preserve them from perishing; and that _such taking_ would be neither _felony_ nor _larceny_. This is a matter of the greatest importance; it is a most momentous question; for if it be settled in the affirmative--if it be settled that it is _not felony, nor larceny,_ to take other men"s goods without their a.s.sent, and even against their will, when such taking is absolutely necessary to the preservation of life, how great, how imperative, is the duty of affording, if possible, _that relief which will prevent such necessity_! In other words, how imperative it is on all overseers and justices to obey the law with alacrity; and how weak are those persons who look to "_grants_" and "_subscriptions_," to supply the place of the execution of this, the most important of all the laws that const.i.tute the basis of English society!
And if this question be settled in the affirmative; if we find the most learned of lawyers and most wise of men, maintaining the affirmative of this proposition; if we find them maintaining, that it is neither _felony_ nor _larceny_ to take food, in case of _extreme necessity_, though without the a.s.sent, and even against the will of the owner, what are we to think of those (and they are not few in number nor weak in power) who, animated with the savage soul of the Scotch _feelosophers_, would wholly abolish the poor-laws, or, at least, render them of little effect, and thereby constantly keep thousands exposed to this dire necessity!
9. In order to do justice to this great subject; in order to treat it with perfect fairness, and in a manner becoming of me and of you, I must take the authorities _on both sides_. There are some great lawyers who have contended that the starving man is still guilty of felony or larceny, if he take food to satisfy his hunger; but there are a greater number of other, and still greater, lawyers, who maintain the contrary. The general doctrine of those who maintain the right to take, is founded on the law of nature; and it is a saying as old as the hills, a saying in every language in the world, that "_self-preservation_ is the _first law_ of nature." The law of nature teaches every creature to prefer the preservation of its own life to all other things. But, in order to have a fair view of the matter before us, we ought to inquire how it came to pa.s.s, that the laws were ever made to punish men as criminals, for taking the victuals, drink, or clothing, that they might stand in need of. We must recollect, then, that there was a time when no such laws existed; when men, like the wild animals in the fields, took what they were able to take, if they wanted it. In this state of things, all the land and all the produce belonged to all the people _in common_. Thus were men situated, when they lived under what is called the _law of nature_; when every one provided, as he could, for his self-preservation.
10. At length this state of things became changed: men entered into society; they made laws to restrain individuals from following, in certain cases, the dictates of their own will; they protected the weak against the strong; the laws secured men in possession of lands, houses, and goods, that were called THEIRS; the words MINE and THINE, which mean _my own_ and _thy own_, were invented to designate what we now call _a property_ in things. The law necessarily made it criminal in one man to take away, or to injure, the property of another man. It was, you will observe, even in this state of nature, always _a crime_ to do certain things against our neighbour. To kill him, to wound him, to slander him, to expose him to suffer from the want of food or raiment, or shelter. These, and many others, were crimes in the eye of the law of nature; but, to take share of a man"s victuals or clothing; to go and insist upon sharing a part of any of the good things that he happened to have in his possession, could be _no crime_, because there was _no property_ in anything, except in man"s body itself. Now, civil society was formed for the _benefit_ of the whole.
The whole gave up their natural rights, in order that every one might, for the future, enjoy his life in greater security. This civil society was intended to change the state of man _for the better_. Before this state of civil society, the starving, the hungry, the naked man, had a right to go and provide himself with necessaries wherever he could find them. There would be sure to be some such necessitous persons in a state of civil society. Therefore, when civil society was established, it is impossible to believe that it _had not in view some provision for these dest.i.tute persons_. It would be monstrous to suppose the contrary. The contrary supposition would argue, that fraud was committed upon the ma.s.s of the people in forming this civil society; for, as the sparks fly upwards, so will there always be dest.i.tute persons to some extent or other, in _every community_, and such there are to now a considerable extent, even in the UNITED STATES OF AMERICA; therefore, the formation of the civil society must have been fraudulent or tyrannical upon any other supposition than that it made provision, in some way or other, for dest.i.tute persons; that is to say, for persons unable, from some cause or other, to provide for themselves the food and raiment sufficient to preserve them from perishing. Indeed, a provision for the dest.i.tute seems _essential to the lawfulness_ of civil society; and this appears to have been the opinion of BLACKSTONE, when, in the first Book and first Chapter of his Commentaries on the Laws of England, he says, "the law not only regards _life_ and _member_, and protects every man in the enjoyment of them, but also _furnishes him with every thing necessary for their support_. For there is no man so indigent or wretched, but he may _demand_ a supply _sufficient for all the necessaries of life_ from the more opulent part of the community, by means of the several statutes enacted for the relief of the poor; a humane provision _dictated_ by the _principles of society_."
11. No man will contend, that the main body of the people in any country upon earth, and of course in England, would have consented to abandon the rights of nature; to give up their right to enjoy all things in common; no man will believe, that the main body of the people would ever have given their a.s.sent to the establishing of a state of things which should make all the lands, and all the trees, and all the goods and cattle of every sort, private property; which should have shut out a large part of the people from having such property, and which should, at the same time, not have provided the means of preventing those of them, who might fall into indigence, from being _actually starved to death_! It is impossible to believe this. Men never gave their a.s.sent to enter into society on terms like these. One part of the condition upon which men entered into society was, that care should be taken that no human being should perish from want. When they agreed to enter into that state of things, which would necessarily cause some men to be rich and some men to be poor; when they gave up that right, which G.o.d had given them, to live as well as they could, and to take the means wherever they found them, the condition clearly was, the "_principle of society_;" clearly was, as BLACKSTONE defines it, that the indigent and wretched should have a right to "_demand_ from the rich a supply _sufficient_ for all the _necessities_ of life."
12. If the society did not take care to act upon this principle; if it neglected to secure the legal means, of preserving the life of the indigent and wretched; then the society itself, in so far as that wretched person was concerned, ceased to have a legal existence. It had, as far as related to him, forfeited its character of legality. It had no longer any claim to his submission to its laws. His rights of nature returned: as far as related to him, the law of Nature revived in all its force: that state of things in which all men enjoyed all things _in common_ was revived with regard to him; and he took, and he had a right to take, food and raiment, or, as Blackstone expresses it, "a supply sufficient for all the necessities of life." For, if it be true, as laid down by this English lawyer, that the _principles_ of society; if it be true, that the very principles, or _foundations_ of society dictate, that the dest.i.tute person shall have a legal demand for a supply from the rich, sufficient for all the necessities of life; if this be true, and true it certainly is, it follows of course that the principles, that is, the base, or _foundation_, of society, is subverted, is gone; and that society is, in fact, no longer what it was intended to be, when the indigent, when the person in a state of extreme necessity, cannot, at once, obtain from the rich such sufficient supply: in short, we need go no further than this pa.s.sage of BLACKSTONE, to show, that civil society is subverted, and that there is, in fact, nothing legitimate in it, when the dest.i.tute and wretched have no certain and legal resource.
13. But this is so important a matter, and there have been such monstrous doctrines and projects put forth by MALTHUS, by the EDINBURGH REVIEWERS, by LAWYER SCARLETT, by LAWYER NOLAN, by STURGES BOURNE, and by an innumerable swarm of persons who have been giving before the House of Commons what they call "_evidence_:" there have been such monstrous doctrines and projects put forward by these and other persons; and there seems to be such a lurking desire to carry the hostility to the working cla.s.ses still further, that I think it necessary in order to show, that these English poor-laws, which have been so much calumniated by so many greedy proprietors of land; I think it necessary to show, that these poor-laws are the things which men of property, above all others, _ought to wish to see maintained_, seeing that, according to the opinions of the greatest and the wisest of men, they must suffer most in consequence of the abolition of those laws; because, by the abolition of those laws, the right given by the laws of nature would revive, and the dest.i.tute would _take_, where they now simply _demand_ (as BLACKSTONE expresses it) in the name of the law. There has been some difference of opinion, as to the question, whether it be _theft_ or _no theft_; or, rather, whether it be a _criminal act_, or _not a criminal act_, for a person, in a case of extreme necessity from want of food, to take food without the a.s.sent and even against the will, of the owner. We have, amongst our great lawyers, SIR MATTHEW HALE and SIR WILLIAM BLACKSTONE, who contend (though as we shall see, with much feebleness, hesitation, and reservation,) that it _is theft_, notwithstanding the extremity of the want; but there are many, and much higher authorities, foreign as well as English, on the other side.
Before, however, I proceed to the hearing of these authorities, let me take a short view of _the origin of the poor laws in England_; for that view will convince us, that, though the present law was pa.s.sed but a little more than two hundred years ago, there had been something to effect the same purpose ever since England had been called England.
14. According to the Common Law of England, as recorded in the MIRROUR OF JUSTICES, a book which was written before the Norman Conquest; a book in as high reputation, as a law-book, as any one in England; according to this book, CHAPTER 1st, SECTION 3d, which treats of the "First const.i.tutions made by the antient kings;" According to this work, provision was made for the sustenance of the poor. The words are these: "It was ordained, that the poor should be sustained by _parsons_, by _rectors_ of the church, and by the _parishioners_, so that _none of them die for want of sustenance_." Several hundred years later, the canons of the church show, that when the church had become rich, it took upon itself the whole of the care and expense attending the relieving of the poor.
These canons, in setting forth the manner in which the t.i.thes should be disposed of, say, "Let the priests set apart the first share for the building and ornaments of the church; let them distribute the _second to the poor and strangers, with their own hands, in mercy and humility_; and let them reserve the third part for themselves." This pa.s.sage is taken from the canons of ELFRIC, canon 24th. At a later period, when the t.i.thes had, in some places, been appropriated to convents, acts of Parliament were pa.s.sed, compelling the impropriators to leave, in the hands of their vicar, a sufficiency for the maintenance of the poor. There were two or three acts of this sort pa.s.sed, one particularly in the twelfth year of RICHARD the Second, chapter 7th. So that here we have the most ancient book on the Common Law; we have the canons of the church at a later period; we have acts of Parliament at a time when the power and glory of England were at their very highest point; we have all these to tell us, that in England, from the very time that the country took the name, _there was always a legal and secure provision for the poor, so that no person, however aged, infirm, unfortunate, or dest.i.tute, should suffer from want_.
15. But, my friends, a time came when the provision made by the Common Law, by the Canons of the Church, and by the Acts of the Parliament coming in aid of those canons; a time arrived, when all these were rendered null by what is called the PROTESTANT REFORMATION. This "Reformation," As it is called, sweeped away the convents, gave a large part of the t.i.thes to greedy courtiers, put parsons with wives and children into the livings, and left the poor without any resource whatsoever. This terrible event, which deprived England of the last of her possessions on the continent of Europe, reduced the people of England to the most horrible misery; from the happiest and best fed and best clad people in the world, it made them the most miserable, the most wretched and ragged of creatures. At last it was seen that, in spite of the most horrible tyranny that ever was exercised in the world, in spite of the racks and the gibbets and the martial law of QUEEN ELIZABETH, those who had ama.s.sed to themselves the property out of which the poor had been formerly fed, were compelled to _pa.s.s a law to raise money, by way of tax, for relieving the necessities of the poor_. They had pa.s.sed many acts before the FORTY-THIRD year of the reign of this Queen Elizabeth; but these acts were all found to be ineffectual, till, at last, in the forty-third year of the reign: of this tyrannical Queen, and in the year of our Lord 1601, that famous act was pa.s.sed, which has been in force until this day; and which, as I said before, is still in force, notwithstanding all the various attempts of folly and cruelty to get rid of it.
16. Thus, then, the present poor-laws are _no new thing_. They are no _gift_ to the working people. You hear the greedy landowners everlastingly complaining against this law of QUEEN ELIZABETH. They pretend that it was _an unfortunate_ law. They affect to regard it as a great INNOVATION, seeing that no such law existed before; but, as I have shown, a better law existed before, having the same object in view. I have shown, that the "Reformation," as it is called, had sweeped away that which had been secured to the poor by the Common Law, by the Canons of the Church, and by ancient Acts of Parliament. There was _nothing new_, then, in the way of benevolence towards the people, in this celebrated Act of Parliament of the reign of QUEEN ELIZABETH; and the landowners would act wisely by holding their tongues upon the subject; or, if they be too noisy, one may look into their GRANTS, and see if we cannot find something THERE to keep out the present parochial a.s.sessments.
17. Having now seen _the origin_ of the present poor-laws, and the justice of their due execution, let us return to those authorities of which I was speaking but now, and an examination into which will show the extreme danger of listening to those projectors who would abolish the poor-laws; that is to say, who would sweep away that provision which was established in the reign of QUEEN ELIZABETH, from a conviction that it was absolutely necessary to preserve the peace of the country and the lives of the people. I observed before that there has been some difference of opinion amongst lawyers as to the question, whether it be, or be not, _theft_, to take without his consent and against his will, the victuals of another, in order to prevent the taker from starving. SIR MATTHEW HALE and SIR WILLIAM BLACKSTONE say that it _is theft_. I am now going to quote the several authorities on both sides, and it will be necessary for me to indicate the works which I quote from by the words, letters, and figures which are usually made use of in quoting from these works. Some part of what I shall quote will be in Latin: but I shall put nothing in that language of which I will not give you the translation. I beg you to read these quotations with the greatest attention; for you will find, at the end of your reading, that you have obtained great knowledge upon the subject, and knowledge, too, which will not soon depart from your minds.
18. I begin with SIR MATTHEW HALE, (a Chief Justice of the Court of King"s Bench in the reign of Charles the Second,) who, in his PLEAS OF THE CROWN, CHAP. IX., has the following pa.s.sage, which I put in distinct paragraphs, and mark A, B, and C.
19. A. "Some of the casuists, and particularly COVARRUVIUS, Tom. I. _De furti et rapinae rest.i.tutione_, -- 3, 4, p. 473; and GROTIUS, _de jure belli, ac pacis_; lib. II. cap. 2. -- 6, tell us, that in case of extreme necessity, either of hunger or clothing, the _civil distributions of property cease_, and by a kind of tacit condition the _first community doth return_, and upon this those common a.s.sertions are grounded: "_Quicquid necessitas cogit, defendit._" [Whatever necessity calls for, it justifies.] "_Necessitas est lex temporis et loci._" [Necessity is the law of time and place.] "_In casu extremae necessitatis omnia sunt communia._"
[In case of extreme necessity, all things are _in common_;] and, therefore, in such case _theft is no theft_, or at least not punishable as theft; and some even of our own lawyers have a.s.serted the same; and very bad use hath been made of this concession by some of the _Jesuitical_ casuists of _France_, who have thereupon advised apprentices and servants to rob their masters, where they have been indeed themselves in want of necessaries, of clothes or victuals; whereof, they tell them, they themselves are the competent judges; and by this means let loose, as much as they can, by their doctrine of probability, all the ligaments of property and civil society."
20. B. "I do, therefore, _take it_, that, where persons live under the same civil government, _as here in England_, that rule, at least by the laws of _England_, is false; and, therefore, if a person being _under necessity for want of victuals_, or clothes, shall, upon that account, clandestinely, and "_animo furandi_," [with intent to steal,] steal another man"s goods, it is felony, and a crime, by the laws of _England_, punishable with death; although, the judge before whom the trial is, in this case (as in other cases of extremity) be by the laws of _England_ intrusted with a power to reprieve the offender, before or after judgment, in order to the obtaining the King"s mercy. For, 1st, Men"s properties would be under a strange insecurity, being laid open to other men"s necessities, whereof no man can possibly judge, but the party himself.
And, 2nd, Because by the laws of this kingdom [here he refers to the 43 Eliz. cap. 2] sufficient provision is made for the supply of such necessities by collections for the poor, and by the power of the civil magistrate. Consonant hereunto seems to be the law even among the Jews; if we may believe the wisest of kings. Proverbs vi. 30, 31. "_Men do not despise a thief, if he steal to satisfy his soul when he is hungry, but if he be found, he shall restore seven-fold, he shall give all the substance of his house._" It is true, _death_ among them was not the penalty of theft, yet his necessity gave him _no exception_ from the ordinary punishment inflicted by their law upon that offence."
21. C. "Indeed this rule, "_in casu extremae necessitatis omnia sunt communia_," does hold, in some measure, in some particular cases, where, by the tacit consent of nations, or of some particular countries or societies, it hath obtained. First, among the _Jews_, it was lawful in case of hunger to pull ears of standing corn, and eat, (Matt. xii. 1;) and for one to pa.s.s through a vineyard, or olive-yard, to gather and eat without carrying away. Deut. xxiii. 24, 25. SECOND, By the _Rhodian_ law, and the common-maritime custom, if the common provision for the ship"s company fail, the master may, under certain temperaments, _break open the private chests of the mariners or pa.s.sengers_, and _make a distribution_ of that particular and private provision for the _preservation of the ship"s company_." Vide CONSOLATO DEL MARE, cap. 256. LE CUSTOMES DE LA MERE, p. 77.
22. SIR WILLIAM BLACKSTONE agrees, in substance, with HALE; but he is, as we shall presently see, much more eager to establish his doctrine; and, we shall see besides, that he has not scrupled to be guilty of misquoting, and of very shamefully _garbling_, _the Scripture_, in order to establish his point. We shall find him flatly contradicting the laws of England; but, he might have spared the Holy Scriptures, which, however, he has not done.
23. To return to HALE, you see he is compelled to begin with acknowledging that there are great authorities against him; and he could not say that GROTIUS was not one of the most virtuous as well as one of the most learned of mankind. HALE does not know very well what to do with those old sayings about the justification which hard necessity gives: he does not know what to do with the maxim, that, "in case of extreme necessity all things _are owned in common_." He is exceedingly puzzled with these ancient authorities, and flies off into prattle rather than argument, and tells us a story about "_jesuitical_" casuists in France, who advised apprentices and servants to rob their masters, and that they thus "let loose the ligaments of property and civil society." I fancy that it would require a pretty large portion of that sort of faith which induced this Protestant judge to send witches and wizards to the gallows; a pretty large portion of this sort of faith, to make us believe, that the "_casuists_ of France," who, doubtless, _had servants of their own_, would teach servants to rob their masters! In short, this prattle of the judge seems to have been nothing more than one of those Protestant effusions which were too much in fashion at the time when he wrote.
24. He begins his second paragraph, or paragraph B., by saying, that he "_takes it_" to be so and so; and then comes another qualified expression; he talks of civil government "_as here in England_." Then he says, that the rule of GROTIUS and others, against which he has been contending, "he takes _to be false_, at _least_," says he, "_by the laws of England_."
After he has made all these qualifications, he then proceeds to say that _such taking is theft_; that it is _felony_; and it is a crime which the laws of England punish with _death_! But, as if stricken with remorse at putting the frightful words upon paper; as if feeling shame for the law and for England itself, he instantly begins to tell us, that the judge who presides at the trial is intrusted, "_by the laws of England_," with power to _reprieve_ the offender, in order to the obtaining of the _King"s mercy_! Thus he softens it down. He will have it to be LAW to put a man to death in such a case; but he is ashamed to leave his readers to believe, that an English judge and an English king WOULD OBEY THIS LAW!