Franklin's Remarks on Judge Foster's Argument
in Favor of the Right of Impressing Seamen
[before September 17, 1781]
Some Remarks written by B. F. with a Pencil on the Margin
of a Report of Judge Forster, containing that Judge's
Argument in favour of the Right of Impressing Seamen.
Extract from the Report, Page 157. 158. Edition 1762.
“The only Question at present is, Whether Mariners, Persons
who have freely chosen a Sea-fareing life, Persons whose Education
and Employment have fitted them for the Service, and in-ured
them to it, Whether such Persons may not be legally
Pressed into the Service of the Crown, whenever the Publick
Safety requireth it, Ne quid detrimenti Respublica capiat.
“For my part I think they May. I think the Crown hath a Right
to Command the Service of these People, whenever the public
Safety calleth for it. The same Right that it hath to require the*
personal Service of every Man able to bear Arms in case of a
sudden Invasion or formidable Insurrection. The Right in both
cases is founded on one and the same Principle, the Necessity of
the Case in Order to the Preservation of the Whole.—”
A The Conclusion here from the Whole to a Part does not seem
to be good Logic. Where the Personal Service of every Man is
call'd for, there the Burthen is equal. Not so where the Service of
a Part is call'd for, and others excus'd. If the Alphabet should say,
Let us all fight for the Defence of the whole, that is equal and
may therefore be just. But if they should say, Let A.B.C. and D.
go out and fight for us, while we stay at home and sleep in whole
Skins; that is not equal and therefore cannot be just.
“It would be time very ill spent to go about to prove that this
Nation can never be long in a state of Safety, our Coast defended
and our Trade protected, without a Naval Force equal to all the
Emergencies that may happen. And how can We be secure of
such a Force? The keeping up the Same Naval Force in time of
Peace, which will be absolutely necessary for our Security in
time of War, would be an absurd, a fruitless, and a ruinous Expence.
“The only Course then left, is for the Crown to employ upon
Emergent Occasions the Mariners bred up in the Merchants Service.—
”
B. Employ, if you please. The Word signifies, engaging a Man to
work for me by offering him such Wages as are sufficient to induce
him to prefer my Service. This is very different from com-pelling
him to work for me on such Terms as I think proper.
“And as for the Mariner himself, He when taken into the Service
of the Crown only changeth Masters for a time: His Service
and employment continue the very same, with this Advantage,
that the Dangers of the Sea and Enemy are not so great in the
Service of the Crown, as in that of the Merchant.”
C His Service and Employment continue the very same, &c. These
are false Facts. His Service and Employment are not the same. Under
the Merchant he goes in an un-arm'd Vessel not obliged to
fight, but only to transport Merchandize. In the King's Service he
is oblig'd to fight, and to Hazard all the Dangers of Battle. Sickness
on board King's Ships, is also more common and more Mor-tal.
The Merchant's Service too he can quit at the End of a Voyage,
not the King's. Also the Merchant's wages are much higher.
“I am very sensible of the Hardship the Sailor suffereth from
an Impress in some particular Cases, especially if Pressed
Homeward-bound after a long Voyage. But the Merchants who
hear Me know, that an Impress on Outward-bound Vessels
would be attended with much greater Inconveniencies to the
Trade of the Kingdom; and yet That too is sometimes Necessary.
But where two Evils present, a wise Administration, if there
be room for an Option, will choose the Least.”
D I am very sensible &c. Here are two things put in Comparison
that are not comparable, viz. Injury to Seamen, and Inconvenience
to Trade. Inconvenience to the whole Trade of a Nation
will not justify Injustice to a single Seaman. If the Trade would
suffer without his Service, it is able and ought to be willing to
offer him such Wages as may induce him to afford his Service
voluntarily.
D2 The least. The least Evil in case seamen are wanted, is to give
them such wages as will induce them to inlist voluntarily. Let this
Evil be divided among the whole Nation, by an Equal Tax to pay
such Wages.
Page 159.
“War itself is a great Evil, but it is chosen to avoid a greater.
The Practice of Pressing is one of the Mischiefs War bringeth
with it. But it is a Maxim in Law, and good Policy too, that all private
Mischiefs must be borne with Patience for preventing a National
Calamity. And as no greater Calamity can befall Us than
to be weak and defenceless at Sea in a time of War, so I do not
know that the Wisdom of the Nation hath hitherto found out any
Method of Manning our Navy, less Inconvenient than Pressing;
and at the same time, equally Sure and Effectual.”
E Where is this Maxim in Law and good Policy to be found? And
how came that to be a Maxim which is not consistent with Common
Sense. If the Maxim had been that private Mischiefs which
prevent a National Calamity ought to be generously compen-sated
by that Nation, one might have understood it. But that such
private Mischiefs are only to be borne with Patience is absurd.
E2 Less inconvenient. Less inconvenient to whom? To the Rich
indeed, who ought to be taxed. No Mischief more inconvenient
to poor Seamen could possibly be contrived.
“The Expedient of a Voluntary Register which was attempted
in King William's time, had no Effect.
“And some late Schemes I have seen appear to Me more inconvenient
to the Mariner and more inconsistent with the Principles
of Liberty, than the Practice of Pressing: and, what is still
worse, they are in my Opinion totally Impracticable.”
F Twenty ineffectual or inconvenient Schemes will not justify
one [torn: that is?] unjust.
“Thus much I thought proper to say upon the Foot of Reason
and publick Utility, before I come to speak directly to the
Point of Law.”
Text, Page 159
The Crown's Right of Impressing Seamen is grounded upon
Common Law.
If impressing Seamen is of Right by Common Law, in Britain,
Slavery is then of Right by Common Law; there being no Slav-ery
worse than that Sailors are subjected to.
Ibid. The Result of evident Necessity.
Impressing not so, if the End might be answered by giving
higher Wages.
Page 160
“This general View will be sufficient to let us into the Nature
of these Precedents. And though the Affair of Pressing Ships is
not now before Me, yet I could not well avoid mentioning it; because
many of the Precedents I have met with and must cite, go
as well to That, as to the business of Pressing Mariners. And
taken together, they serve to shew the Power the Crown hath
constantly exercised over the whole Naval Force of the Kingdom
as well Shipping as Mariners, whenever the Publick Service
required it.
“This however must be observed, that no Man served the
Crown in either Case at his own Expence. Masters and Mariners
received full Wages, and Owners were constantly paid a full
Freight.”
H Probably the same they received in the Merchts. Service. Full
Wages for a Seaman in time of War, are the Wages he has in the
Merchant's Service in War-Time. But half such Wages is not
given in the King's Ships to impress'd Seamen.
Text. page 173.
“Do not these Things incontestably presuppose the Expedi-ency,
the Necessity, and the Legality of an Impress in general. If
they do not, one must entertain an Opinion of the Legislature
acting and speaking in this manner which it will not be decent for
Me to mention in this Place.”
I will risk that Indecency, and mention it. They were not honest
Men; they acted unjustly by the Seamen (who have no Vote
in Elections, or being abroad cannot use them if they have them)
to save their own Purses and those of their Constituents. Former
Parliaments acted the same Injustice towards the Labouring People,
who had not forty Shillings a Year in Lands; after depriving
them wickedly of their Right to Vote in Elections, they limited
their Wages, and compell'd them to work at such limited Rates,
on Penalty of being sent to Houses of Correction. See 8H6,
chap. 7 & 8.
Page 174.
“I readily admit that an Impress is a Restraint upon the Natural
Liberty of those who are liable to it. But it must likewise be
admitted on the other Hand, that every Restraint upon Natural
Liberty is not Eo Nomine illegal, or at all inconsistent with the
Principles of Civil Liberty. And if the Restraint be it to what Degree
soever, appeareth to be necessary to the Good and Welfare
of the Whole, and to be warranted by Statute-Law, as well as im-memorial
Usage, it cannot be complained of otherwise than as a
private Mischief: which as I said at the beginning, must under all
Governments whatsoever, be submitted to for avoiding a publick
Inconvenience.”
I When the Author speaks of Impressing Page 158. he diminishes
the Horror of the Practice, as much as possible, by presenting to
the Mind one Sailor only suffering a Hardship, as he tenderly
calls it, in some Particular Cases only; and he places against this
private Mischief the Inconvenience to the Trade of the Kingdom.—
But if, as I suppose is often the Case, the Sailor who is
press'd and oblig'd to serve for the Defence of this Trade at the
Rate of 25 s. a Month, could have had £3. 15. s. in the Merchant's
Service, you take from him 50 s. a Month: and if you have
100,000 in your Service, you rob that honest industrious part of
Society, and their poor Families, of £250,000 per Month or
£3,000,000 a Year, and at the same time oblige them to hazard
their Lives in fighting for the Defence of your Trade; to the Defence
of which all ought indeed to contribute, (and Sailors
among the rest) in proportion to their Profits by it; but this
£3,000,000 is more than their Share if they did not pay with their
Persons; and when you force that, methinks you should excuse
the other.
But it may be said, to give the King's Seamen Merchant's
Wages would cost the Nation too much, and call for more Taxes.
The Question then will amount to this; Whether it be just in a
Community, that the Richer Part should compell the Poorer, to
fight for them and their Properties, for such Wages as they think
fit to allow, and punish them if they refuse? Our Author tells us
it is legal. I have not Law enough to dispute his Authorities, but
I cannot persuade myself that it is equitable. I will however own
for the present that Pressing may be Lawful when necessary; but
then I contend that it may be us'd so as to produce the same good
Effect, the publick Security, without doing so much horrible Injustice
as attends the Impressing common Seamen. In order to be
better understood I would premise two things 1st: That Voluntary
Seamen might be had for the Service, if they were sufficiently
paid. The Proof of this is, that to serve in the same Ships,
and incurr the same Dangers, you have no Occasion to Impress
Captains, Lieutenants, Second Lieutenants, Midshipmen, Purs-ers,
nor any other Officers. Why but that the Profits of their
Places, or the Emoluments expected, are sufficient Inducements.
The Business then is to find Money by Impressing, sufficient to
make the Sailors all Volunteers as well as their Officers: and this
without any fresh Burthen upon Trade: The second of my
Premises is, that 25 s. a Month with his Share of the Salt Beef,
Pork and Peaspudding, being found sufficient for the Subsistence
of a hard working Seamen, it will certainly be so for a sedentary
Scholar or Gentleman. I would then propose to form a Treasury,
out of which Encouragements to Seamen should be paid. To fill
this Treasury, I would Impress a Number of Civil Officers, who
at present have great Salaries, oblige them to serve in their respective
Offices for 25 s. per Month, with their Share of the Mess
Provisions, and throw the rest of their Salaries into the Seaman's
Treasury. If such a Press Warrant was give me to execute, the
first thing I would press should be a Recorder of Bristol or a Mr.
Justice Forster, because I might have need of his edifying Example
to show how such Impressing ought to be borne with; for
he would certainly find that tho' to be reduced to 25 s. per Month
might be a private Mischief, yet that agreable to his Maxim of
Law and good Policy, it ought to be borne with Patience, for preventing
a National Calamity. Then I would press the rest of the
Judges; and opening the Red Book, I would press every civil
Officer of Government from £50. a year up to £50,000 which
would throw an immense Sum into our Treasury; and these Gentlemen
could not well complain, since they would receive their
25 s. a Month and their Rations, and that too without being
oblig'd to fight. Lastly I think I would Impress the King, and
confiscate his Salary; but from an ancient Prejudice I have in
favour of that Title, I would allow the Gentleman Merchants
Pay. I could not well go farther in his Favour; for to say the
Truth, I am not quite satisfied of the Necessity or Utility of that
Office in Great Britain, as I see many flourishing States in the
World governed well and happily without it.
Page 174.
“It cannot be complained of otherwise than as a private Mischief,
which must be submitted to for avoiding a public Inconvenience.”
I do not see the Propriety of this must. The private Mischief is
the Loss of Liberty and Hazard of Life with only half Wages, to
a great Number of honest Men. The public Inconvenience is
merely a higher Rate of Seamen's Wages. He who thinks such
private Injustice must be done to avoid public Inconvenience
may understand Law, but seems imperfect in his Knowledge of
Equity.— Let us apply this Author's Doctrine to his own Case.
It is for the public Service that Courts should be held and Judges
appointed to administer the Laws. The Judges should be bred to
the Law, and skilful in it, but their great Salaries are a public Inconvenience.
To remove the Inconvenience, Let Press Warrants
issue to arrest and apprehend the best Lawyers, and compel them
to serve as Judges for half the Money they would have made at
the Bar. Then tell them, that tho' this is to them a private Mischief,
it must be submitted to for avoiding a public Inconvenience.
Would the learned Judge approve such Use of his Doctrine?
Text, page 177.
“For I freely declare,that ancient Precedents alone, unless supported
by modern Practice, weigh very little with me in Questions
of this Nature.”
The modern Practice supported by antient Precedents weighs as
little with me. Both the one and the other only show that the
Constitution is yet Imperfect, since in so general a Case it doth
not secure Liberty but destroys it; and the Parliaments are unjust,
conniving at Oppression of the Poor, where the Rich are to
be Gainers or Savers by such Oppression.
Text, page 179.
“I make no Apology for the Length of my Argument, because
I hope the Importance of the Question will be thought a sufficient
Excuse for me in that respect.”
The Author could not well have made his Argument shorter.
It required a long Discourse to throw Dust in the Eyes of Common
Sense, confound all our Ideas of Right and Wrong, make
Black seem White, and the worse appear the better Opinion.