Memoirs of Benjamin Franklin · Benjamin Franklin
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 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 principle 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?_[8] [8] Ought we to punish a crime against society by a crime against 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 neighbour, by this means, may become owner of a 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 everybody'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 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 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 horsestealer; 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."
"L'atrocité 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 modération des peines."[9] [9] The extreme severity of the laws prevents their execution. Where the punishment is excessive, it is frequently necessary to prefer impunity. It is the exemption from punishment, and not its moderation which is the cause of crime. 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 our common people. May not one be the deficiency of justice and morality in our national government, manifested in our 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 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, it is 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 easily plunder another London merchant of the next street, if he could do it with the same impunity? The avidity, the _alieni appetens_[10] is the same; it is the fear 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_ among us? It must not be suffered. Let us search out the rogue and pump him to death."
It has been for some time a generally received opinion, that a military man is not to inquire 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 and 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 behooves 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.
Text from Project Gutenberg, public domain in the United States.