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ON THE CRIMINAL LAWS AND THE PRACTICE OF PRIVATEERING

Letter to Benjamin Vaughan, Esq

March 14, 1785.

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

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." 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, 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 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

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 appetens¹⁰ 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."

There is, however, one late instance of an English merchant who will not 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, which took a number of French prizes. The booty being shared, he has now an agent here inquiring, by an advertisement in the Gazette, for those who have 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 man within this burgh." The race of these Godly men in Scotland are probably extinct, or their principles 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 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.

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.¹¹ 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.

LETTER FROM ANTHONY AFTERWIT

Mr. Gazetteer,

I am an honest tradesman, who never meant harm to anybody. My affairs went on smoothly while a bachelor; but of late I have met with some difficulties, of which I take the freedom to give you an account.

About the time I first addressed my present spouse, her father gave out in speeches that, if she married a man he liked, he would give with her two hundred pounds in cash on the day of marriage. He never said so much to me, it is true; but he always received me very kindly at his house, and openly countenanced my courtship. I formed several fine schemes what to do with this same two hundred pounds, and in some measure neglected my business on that account; but, unluckily, it came to pass, that, when the old gentleman saw I was pretty well engaged, and that the match was too far gone to be easily broke off, he, without any reason given, grew very angry, forbid me the house, and told his daughter that if she married me he would not give her a farthing. However (as he thought), we were not to be disappointed in that manner, but, having stole a wedding, I took her home to my house, where we were not quite in so poor a condition as the couple described in the Scotch song, who had for I had a house tolerably well furnished for a poor man before. No thanks to Dad, who, I understand, was very much pleased with his politic management; and I have since learned that there are other old curmudgeons (so called) besides him, who have this trick to marry their daughters, and yet keep what they might well spare till they can keep it no longer. But this by way of digression; a word to the wise is enough.

 
"Neither pot nor pan,
But four bare legs together,"
 

I soon saw that with care and industry we might live tolerably easy and in credit with our neighbours; but my wife had a strong inclination to be a gentlewoman. In consequence of this, my oldfashioned looking-glass was one day broke, as she said, no one could tell which way. However, since we could not be without a glass in the room, "My dear," saith she, "we may as well buy a large fashionable one, that Mr. Such-a-one has to sell. It will cost but little more than a common glass, and will look much handsomer and more creditable." Accordingly, the glass was bought and hung against the wall; but in a week's time I was made sensible, by little and little, that the table was by no means suitable to such a glass; and, a more proper table being procured, some time after, my spouse, who was an excellent contriver, informed me where we might have very handsome chairs in the way; and thus, by degrees, I found all my old furniture stowed up in the garret, and everything below altered for the better.

Had we stopped here, it might have done well enough. But my wife being entertained with tea by the good woman she visited, we could do no less than the like when they visited us; so we got a teatable, with all its appurtenances of China and silver. Then my spouse unfortunately overworked herself in washing the house, so that we could do no longer without a maid. Besides this, it happened frequently that when I came home at one, the dinner was but just put in the pot, and my dear thought really it had been but eleven. At other times, when I came at the same hour, she wondered I would stay so long, for dinner was ready about one, and had waited for me these two hours. These irregularities, occasioned by mistaking the time, convinced me that it was absolutely necessary to buy a clock, which my spouse observed was a great ornament to the room. And lastly, to my grief, she was troubled with some ailment or other, and nothing did her so much good as riding, and these hackney-horses were such wretched ugly creatures that– I bought a very fine pacing mare, which cost twenty pounds; and hereabouts affairs have stood for about a twelvemonth past.

I could see all along that this did not at all suit with my circumstances, but had not resolution enough to help it, till lately, receiving a very severe dun, which mentioned the next court, I began in earnest to project relief. Last Monday, my dear went over the river to see a relation and stay a fortnight, because she could not bear the heat of the town air. In the interim I have taken my turn to make alterations; namely, I have turned away the maid, bag and baggage (for what should we do with a maid, who, besides our boy, have none but ourselves?) I have sold the pacing mare, and bought a good milch-cow with three pounds of the money. I have disposed of the table, and put a good spinning-wheel in its place, which, methinks, looks very pretty; nine empty canisters I have stuffed with flax, and with some of the money of the tea-furniture I have bought a set of knitting-needles, for, to tell you the truth, I begin to want stockings. The fine clock I have transformed into an hourglass, by which I have gained a good round sum; and one of the pieces of the old looking-glass, squared and framed, supplies the place of the great one, which I have conveyed into a closet, where it may possibly remain some years. In short, the face of things is quite changed, and methinks you would smile to see my hourglass hanging in the place of the clock. What a great ornament it is to the room! I have paid my debts, and find money in my pocket. I expect my dear home next Friday, and, as your paper is taken at the house where she is, I hope the reading of this will prepare her mind for the above surprising revolutions. If she can conform herself to this new manner of living, we shall be the happiest couple, perhaps, in the province, and, by the blessing of God, may soon be in thriving circumstances. I have reserved the great glass, because I know her heart is set upon it; I will allow her, when she comes in, to be taken suddenly ill with the headache, the stomach-ache, fainting-fits, or whatever other disorder she may think more proper, and she may retire to bed as soon as she pleases. But if I should not find her in perfect health, both of body and mind, the next morning, away goes the aforesaid great glass, with several other trinkets I have no occasion for, to the vendue, that very day; which is the irrevocable resolution

Of, sir, her loving husband and

Your very humble servant,

Anthony Afterwit.

P.S. – I would be glad to know how you approve my conduct.

Answer.– I don't love to concern myself in affairs between man and wife.

LETTERS

"Mrs. Abiah Franklin

"Philadelphia, April (date uncertain).

"Honoured Mother,

"We received your kind letter of the 2d instant, by which we are glad to hear you still enjoy such a measure of health, notwithstanding your great age. We read your writings very easily. I never met with a word in your letter but what I could easily understand, for, though the hand is not always the best, the sense makes everything plain. My leg, which you inquire after, is now quite well. I shall keep these servants: but the man not in my own house. I have hired him out to the man that takes care of my Dutch printing-office, who agrees to keep him in victuals and clothes, and to pay me a dollar a week for his work. The wife, since that affair, behaves exceeding well: but we conclude to sell them both the first good opportunity, for we do not like negro servants. We got again about half what we lost.

"As to your grandchildren, Will is now 19 years of age, a tall, proper youth, and much of a beau. He acquired a habit of idleness on the expedition, but begins, of late, to apply himself to business, and, I hope, will become an industrious man. He imagined his father had got enough for him; but I have assured him that I intend to spend what little I have myself, if it please God that I live long enough, and he can see, by my going on, that I mean to be as good as my word.

"Sally grows a fine girl, and is extremely industrious with her needle, and delights in her work. She is of a most affectionate temper, and perfectly dutiful and obliging to her parents and to all. Perhaps I flatter myself too much, but I have hope that she will prove an ingenious, sensible, notable, and worthy woman, like her aunt Jenny; she goes now to the dancing school.

"For my own part, at present, I pass my time agreeably enough; I enjoy (through mercy) a tolerable share of health. I read a great deal, ride a little, do a little business for myself (now and then for others), retire when I can, and go into company when I please so; the years roll round, and the last will come, when I would rather have it said he lived usefully than he died rich.

"Cousins Josiah and Sally are well, and I believe will do well, for they are an industrious, loving young couple; but they want a little more stock to go on smoothly with their business.

"My love to brother and sister Mecom and their children, and to all my relations in general. I am your dutiful son,

"B. Franklin."

"Miss Jane Franklin.¹²

"Philadelphia, January 6, 1726-7.

"Dear Sister,

"I am highly pleased with the account Captain Freeman gives me of you. I always judged by your behaviour when a child, that you would make a good, agreeable woman, and you know you were ever my peculiar favourite. I have been thinking what would be a suitable present for me to make, and for you to receive, as I hear you are grown a celebrated beauty. I had almost determined on a teatable; but when I considered that the character of a good housewife was far preferable to that of being only a pretty gentlewoman, I concluded to send you a spinning-wheel, which I hope you will accept as a small token of my sincere love and affection.

"Sister, farewell, and remember that modesty as it makes the most homely virgin amiable and charming, so the want of it infallibly renders the most perfect beauty disagreeable and odious. But when that brightest of female virtues shines among other perfections of body and mind in the same person, it makes the woman more lovely than an angel. Excuse this freedom, and use the same with me. I am, dear Jenny, your loving brother,

"B. Franklin."

To the same

Philadelphia, July 28, 1743.

"Dearest Sister Jenny,

"I took your admonition very kindly, and was far from being offended at you for it. If I say anything about it to you, 'tis only to rectify some wrong opinions you seem to have entertained of me; and this I do only because they give you some uneasiness, which I am unwilling to be the cause of. You express yourself as if you thought I was against worshipping of God, and doubt that good works would merit heaven; which are both fancies of your own, I think, without foundation. I am so far from thinking that God is not to be worshipped, that I have composed and wrote a whole book of devotions for my own use, and I imagine there are few, if any, in the world so weak as to imagine that the little good we can do here can merit so vast a reward hereafter.

"There are some things in your New-England doctrine and worship which I do not agree with: but I do not therefore condemn them, or desire to shake your belief or practice of them. We may dislike things that are nevertheless right in themselves: I would only have you make me the same allowance, and have a better opinion both of morality and your brother. Read the pages of Mr. Edwards's late book, entitled, 'Some Thoughts concerning the present Revival of Religion in New-England,' from 367 to 375; and when you judge of others, if you can perceive the fruit to be good, don't terrify yourself that the tree may be evil; but be assured it is not so, for you know who has said, 'Men do not gather grapes off thorns, and figs off thistles.' I have not time to add, but that I shall always be your affectionate brother,

"B. Franklin.

"P.S. – It was not kind in you, when your sister commenced good works, to suppose she intended it a reproach to you. 'Twas very far from her thoughts."

"To Mr. George Whitefield

"Philadelphia, June 6, 1753.

"Sir,

"I received your kind letter of the 2d instant, and am glad to hear that you increase in strength; I hope you will continue mending till you recover your former health and firmness. Let me know whether you still use the cold bath, and what effect it has.

"As to the kindness you mention, I wish it could have been of more service to you. But if it had, the only thanks I should desire is, that you would always be equally ready to serve any other person that may need your assistance, and so let good offices go round; for mankind are all of a family.

"For my own part, when I am employed in serving others, I do not look upon myself as conferring favours, but as paying debts. In my travels and since my settlement, I have received much kindness from men to whom I shall never have an opportunity of making the least direct return, and numberless mercies from God, who is infinitely above being benefited by our services. Those kindnesses from men I can therefore only return on their fellow-men, and I can only show my gratitude for these mercies from God by a readiness to help his other children and my brethren. For I do not think that thanks and compliments, though repeated weekly, can discharge our real obligations to each other, and much less those to our Creator. You will see in this my notion of good works, that I am far from expecting to merit heaven by them. By heaven we understand a state of happiness infinite in degree and eternal in duration: I can do nothing to deserve such rewards. He that, for giving a draught of water to a thirsty person, should expect to be paid with a good plantation, would be modest in his demands compared with those who think they deserve heaven for the little good they do on earth. Even the mixed, imperfect pleasures we enjoy in this world are rather from God's goodness than our merit: how much more such happiness of heaven! For my part, I have not the vanity to think I deserve it, the folly to expect it, nor the ambition to desire it; but content myself in submitting to the will and disposal of that God who made me, who has hitherto preserved and blessed me, and in whose fatherly goodness I may well confide, that he will never make me miserable, and that even the afflictions I may at any time suffer shall tend to my benefit. * * * *

"I wish you health and happiness.

"B. Franklin."

"To Mrs. D. Franklin

"Guadenhathen, January 25, 1756.

"My dear Child,

"This day week we arrived here; I wrote to you the same day, and once since. We all continue well, thanks be to God. We have been hindered with bad weather, yet our fort is in a good defensible condition, and we have every day more convenient living. Two more are to be built, one on each side of this, at about fifteen miles' distance. I hope both will be done in a week or ten days, and then I purpose to bend my course homeward.

"We have enjoyed your roast beef, and this day began on the roast veal; all agree that they are both the best that ever were of the kind. Your citizens, that have their dinners hot and hot, know nothing of good eating; we find it in much greater perfection when the kitchen is fourscore miles from the dining-room.

"The apples are extremely welcome, and do bravely to eat after our salt pork; the minced pies are not yet come to hand, but suppose we shall find them among the things expected up from Bethlehem on Tuesday; the capillaire is excellent, but none of us having taken cold as yet, we have only tasted it.

"As to our lodging, 'tis on deal feather beds, in warm blankets, and much more comfortable than when we lodged at our inn the first night after we left home; for the woman being about to put very damp sheets on the bed, we desired her to air them first; half an hour afterward she told us the bed was ready and the sheets well aired. I got into bed, but jumped out immediately, finding them as cold as death, and partly frozen. She had aired them indeed, but it was out upon the hedge. I was forced to wrap myself up in my greatcoat and woollen trousers; everything else about the bed was shockingly dirty.

"As I hope in a little time to be with you and my family, and chat things over, I now only add that I am, dear Debby, your affectionate husband,

"B. Franklin."

"To the same

"Easton, Saturday morning, November 13, 1756.

"My Dear Child,

"I wrote to you a few days since by a special messenger, and enclosed letters for all our wives and sweethearts, expecting to hear from you by his return, and to have the northern newspapers and English letters per the packet; but he is just now returned without a scrap for poor us. So I had a good mind not to write to you by this opportunity; but I never can be ill-natured enough, even when there is the most occasion. The messenger says he left the letters at your house, and saw you afterward at Mr. Dentie's, and told you when he would go, and that he lodged at Honey's, next door to you, and yet you did not write; so let Goody Smith give one more just judgment, and say what should be done to you; I think I won't tell you that we are well, nor that we expect to return about the middle of the week, nor will I send you a word of news; that's poz. My duty to mother, love to the children, and to Miss Betsey and Gracey, &c., &c.

"B. Franklin.

"P.S. – I have scratched out the loving words, being written in haste by mistake, when I forgot. was angry."

"Mrs. Jane Mecom, Boston

New-York, April 19, 1757.

"Dear Sister,