Among the Pamphlets you lately sent me, was one intitled Thoughts on Executive Justice. 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. 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 at the Punishment of an Offense, which according to that Law was to be punish’d by a Restitution of Fourfold? 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, 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 Expence of Humanity. This was abusing their Powers, and 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 prefer’d his Liberty, and 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 and generally approv’d, 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, and 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. Is there any Proportion between the Injury done by a Theft value 14s. 3d., 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 and 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, 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, and answering that it was hard to hang a Man for only stealing a Horse, was told by the Judge, “Man thou are not to be hang’d only for stealing a Horse, but that Horses may not be stolen.” The Man’s Answer, if candidly examin’d, will I imagine, appear reasonable, as being founded on the Eternal Principle of Justice and 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 14s. 3d., 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 and 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, et non de la moderation des peines.”

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 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 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, 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, 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 that 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. How then can a Nation which among the honestest of its People has so many Thieves by Inclination and whose Government encourag’d and 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, and 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 consiencious 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 Men within this Burgh.” 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 and 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, 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 or 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 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 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, main 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 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. 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