From Benjamin Franklin to Benjamin Vaughan, 14 March 1785
To Benjamin Vaughan
ALS (draft), press copy of L, and transcript:1 Library of Congress
Passy, March 14. 1785
My dear Friend
Among the Pamphlets you lately sent me, was one intitled Thoughts on Executive Justice.2 In return for that I send you a French one on the same Subject, Observations concernant l’Execution de l’Article II de la Declaration sur le Vol.3 They are both address’d 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 punish’d by a Restitution of Fourfold?4 To put a Man to Death for an Offence which does not deserve Death, is it not 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, & his Coat of Skins, were sufficently secured without Law by the Fear of personal Resentment & Retaliation. When by virtue of the first Laws Part of the Society accumulated Wealth & grew Powerful, they enacted others more severe, and would protect their Property at the Expence of Humanity. This was abusing their Power, & commencing a Tyranny. If a Savage before he enter’d into Society had been told, Your Neighbour by this Means may become Owner of 100 Deer, but if your Brother, or your Son, or yourself, having no Deer of your own, and being hungry should kill one of them, an infamous Death must be the Consequence; he would probably have preferr’d his Liberty, & his common Right of killing any Deer, to all the Advantages of Society that might be propos’d to him.—
That it is better 100 guilty Persons should escape, than that one innocent Person should suffer, is a Maxim that has been long & generally approv’d,5 never that I know of controverted. Even the sanguinary Author of the Thoughts agrees to it page 163, 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 it self be unjust, may it not be the very “Instrument” which ought to “raise the Author’s, & every body’s, highest Indignation.” I read in the last Newspaper from London, that a Woman is capitally convicted at the Old Bailey for privately stealing out of a Shop some Gause value 14 Shillings and threepence.6 Is there any Proportion between the Injury done by a Theft value 14/3, and the Punishment of a human Creature by Death on a Gibbet? Might not that Woman by her Labour have made the Reparation ordain’d 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 almost all the civilized States of Europe!
But it seems to have been thought that this kind of Innocence may be punish’d 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 & to receive an 100 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* [in the margin: *Page 105.] the Reply of Judge Burnet to the convict Horsestealer, who being ask’d what he had to say why Judgment of Death should not pass against him, & 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 hang’d only for stealing a Horse, but that Horses may not be stolen.”7 The Man’s Answer, if candidly examin’d, will I imagine, appear reasonable, as being founded on the Eternal Principle of Justice & Equity, that Punishments should be proportion’d to Offences: and the Judge’s Reply brutal and unreasonable; tho’ 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 of 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 14/3, 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 Effect of those Feelings; and so far from thinking severe & excessive Punishments prevent Crimes, he asserts, as quoted by our French Writer, page 4. that
“L’atrocité des loix en empêche l’execution.
“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, & non de la moderation des peines.”—8
It is said by those who know Europe generally, that there are more Thefts committed and punish’d 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 & Morality in our national Government, manifested in our oppressive Conduct to Subjects, & unjust Wars on our Neighbours.— View the long-persisted-in unjust monopolizing Treatment of Ireland at length acknowledged! View the plundering Government exercis’d 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, wch was seen by impartial Europe in no other Light than that of a War of Rapine & Pillage, the Hopes of an immense & easy Prey being its only apparent & probably its true & real Motive & 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, is it strange that being put out of that Employ by the Peace, they should 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, where ever settled. No less than 700 Privateers were, it is said, commission’d 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 Fear alone of the Gallows that makes the Difference.9 How then can a Nation which among the honestest of its People has so many Thieves by Inclination, and whose Government encourag’d & commission’d no less than 700 Gangs of Robbers; how can such a Nation have the Face to condemn the Crime in Individuals, and hang up 20 of them in a Morning. It naturally puts one in Mind of a Newgate Anecdote. One of the Prisoners complain’d 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 suffer’d. Let us search out the Rogue, & pump him to death.—
There is however one late Instance of an English Merchant who will not profit by such ill-gotten Gains. 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 shar’d, he has now an Agent here, enquiring by an Advertisement in the Gazette, for those who suffer’d the Loss, in order to make them, as far as in him lies, Restitution.— This consciencious Man is a Quaker.1 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”2 The Race of these godly Men in Scotland is probably extinct, or their Principles abandoned, since as far as that Nation had a Hand in promoting the War against the Colonies, Prizes & Confiscations are believ’d to have been a considerable Motive.—
It has been for some time a generally receiv’d 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 dispos’d to become Tyrants must probably approve of this Opinion, & 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.3 The Slavery then of a Soldier is worse than that of a Negro! A consciencious Officer, if not restrain’d by the Apprehension of its being imputed to another Cause, may indeed resign; rather than be employ’d 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 dragg’d by Force from his honest Occupation, and compell’d to imbrue his Hands in perhaps innocent Blood. But methinks it well behoves Merchants, Men more enlightned 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, & perhaps ruin them & their Families, if they yield it, or to wound, maim & 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 Thefts, 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 be put to this Enormity. The United States of America, tho’ 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 Privateers shall be commission’d on either Side, and that unarm’d Merchant Ships on both sides shall pursue their Voyages unmolested.4 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 & Affection, I am, my dear Friend Ever yours
B Franklin
Mr Vaughan
1. The L is in the hand of L’Air de Lamotte. The transcript was prepared for WTF’s edition, where the letter appears under the title “On the Criminal Laws, and the Practice of Privateering”: WTF Memoirs, III, 175–80.
2. Vaughan had sent this work by Rev. Martin Madan on Feb. 23, above. It was written in response to the sharp rise in crime, particularly highway robberies, that had occurred since 1783, resulting in a corresponding increase in hangings. Madan argued that English courts of assize still too often exercised their powers of reprieve after death sentences, which he believed undermined the deterrent effect of capital punishment. Madan was trained as a lawyer, but hearing a sermon by John Wesley set him on the path to becoming an Anglican chaplain. He eventually had to resign as a result of the controversy around his book Thelyphthora (1780), which championed polygamy: ODNB. On the postwar crime wave in England see Frank McLynn, Crime and Punishment in Eighteenth-century England (London and New York, 1989), pp. 79–80, 251, 259–60.
3. An open letter written by the lawyer and scholar Dupaty, with whom BF had been acquainted since at least the winter of 1783. At that time Dupaty was embarking on a study of the criminal codes of foreign nations and borrowed from BF a volume or volumes of Filangieri’s La scienza della legislazione: XLI, 373–4. On Sept. 20, 1784, Dupaty wrote a letter to the Mercure de France, in which he cited historical evidence to demonstrate that the royal declaration of 1724 on the punishment of theft was intended to make the death sentence for burglary (vol domestique) optional, not mandatory. Some judges claimed that the declaration of 1724 left them no choice but to impose the death penalty, while other judges believed they could pronounce lesser penalties, depending on the circumstances of the case. This made application of the law inconsistent and needlessly severe, Dupaty argued. Government censors did not allow the Mercure de France or the Jour. de Paris, to which Dupaty also submitted the letter, to print it. It appeared instead in the Oct. 15 issue of the Jour. encyclopédique, published in Bouillon, outside French jurisdiction, under the title “Observations adressées aux auteurs de ce Journal, sur une lettre de M. le garde des sceaux d’Armenonville, concernant l’exécution de l’article 2 de la déclaration sur le vol.” The letter was quickly reprinted in several Paris journals. In response, the French government issued an arrêt on March 2, prohibiting any discussion in periodicals of legislation or jurisprudence: Jour. encyclopédique ou universel, VII, (1784), 318–25; Bachaumont, Mémoires secrets, XXVIII, 66–7; William Doyle, “Dupaty (1746–1788): a Career in the Late Enlightenment,” Studies on Voltaire and the Eighteenth Century, CCXXXM (1985), 69–71; Recueil général des anciennes lois françaises (29 vols., Paris, 1821–33), XXVIII, 17.
4. Exodus 22:1: “If a man shall steal an ox, or a sheep, and kill it, or sell it; he shall restore five oxen for an ox, and four sheep for a sheep.”
5. This principle had been most recently enunciated by Sir William Blackstone in his Commentaries on the Laws of England (4th ed.; 4 vols., Dublin, 1771), IV 352: “all presumptive evidence of felony should be admitted cautiously: for the law holds, that it is better that ten guilty persons escape, than that one innocent suffer.”
6. Reports of the conviction and death sentence of Elizabeth Chapman for stealing 14 yards of black lace, value 14 s., from the shop of Thomas Hobbs, appeared in the Morning Chron., and London Advertiser and the Public Advertiser of March 4, 1785.
7. The judge was Sir Thomas Burnet (1694–1753): Henry Fielding, The Journal of a Voyage to Lisbon, Shamela, and Occasional Writings, ed. Martin C. Battestin, Sheridan W. Baker, Jr., and Hugh Amory (Oxford, 2008), p. 560. The aphorism also appears in George Savile, Marquis of Halifax, A Character of King Charles the Second: and Political, Moral, and Miscellaneous Thoughts and Reflections (London, 1750), p. 114.
8. All three quotations are from De l’Esprit des lois, the first two from part 1, book 6, chapter 13, and the third from part 1, book 6, chapter 12: Montesquieu, The Spirit of the Laws, trans. and ed. Anne M. Cohler, Basia C. Miller, and Harold S. Stone (Cambridge, 1989), pp. 85, 88.
9. BF drafted the preceding two sentences in the margin. “Alieni appetens, sui profusus,” is part of Sallust’s characterization of Catiline (“he was as covetous of other men’s possessions as he was prodigal of his own”): Sallust, The Jugurthine War/The Conspiracy of Catiline, trans. S. A. Handford (Harmondsworth, Eng., 1963), p. 178.
1. The notice appeared in the Gaz. de France of Feb. 25, 1785. It listed two French ships and described the circumstances of their capture in 1778 by English privateers. The owners or insurers were invited to contact Dr. Edward Long Fox at his Paris address. His father was Joseph Fox of Falmouth, who had invested his share of the prize money and in 1784 had asked his son to locate the French proprietors. Joseph died in early 1785, but Edward was contacted by the claimants and by August had paid them £22,000: John Burke, A Genealogical and Heraldic History of the Commoners of Great Britain and Ireland … (4 vols., London, 1835–38), IV, 318.
2. The proclamation was made on May 10, 1561, prohibiting the purchase of prize goods: Extracts from the Records of the Burgh of Edinburgh (13 vols., Edinburgh, 1869–1967), III, 111–12.
3. BF had made the claim that slaves in America enjoyed the protection of the law at least twice before: XIII, 355; XVII, 40–1. Although slave laws varied across the states, slaves had an absolute duty of obedience to their masters; see Thomas D. Morris, Southern Slavery and the Law, 1619–1860 (Chapel Hill and London, 1996).
4. It was BF himself who introduced two articles (Articles 23 and 25) to this effect into the treaty with Sweden (XXXIX, 266–7, 281–2). BF also included similar language in the 1783 draft treaties with Denmark and Portugal and tried to insert it into the definitive peace treaty with Britain: XL, 130, 131, 258, 367n, 438. The American commissioners adopted versions of both articles in the model treaty that served as the basis for the accord with Prussia; see Proposal for a Prussian-American Treaty of Amity and Commerce, [before Nov. 10, 1784].