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by the enemy. It is to burn and destroy those villages which have not brought in their whole subsistence at the day appointed by the gracious sovereign of the neighbourhood. So that is the spirit of laws, said I.
By farther information I heard of some very wise laws condemning a shepherd to the galleys for nine years, for giving a little foreign salt to his sheep. A neighbour of mine had been ruined by an indictment for cutting down two oaks in his own wood, not observing a formality which he had not been able to know any thing of his wife died of grief in extreme distress, and his son lives, if it may be so called, in wretchedness. I own that these laws are just, though the execution of them is a little too hard: but I cannot bear those laws which authorise a hundred thousand men to go, under the pretence of loyalty, and massacre as many of their peaceable neighbours. The generality of men appear to be naturally endowed with sense enough to make laws, but then it is not every one who has virtue sufficient to enact good
Should Tamerlane come and subdue India, you will see nothing but arbitrary laws. One shall squeeze a province to enrich a publican of Tamerlane's; another shall make it high treason, only for having dropped a free word concerning the mistress of the raja's first valet de chambre; a third shall take away from the farmer half his harvest, and dispute the remainder with him; and what is worse than all this, there shall be laws by which a
Tartar messenger shall come and take away your children in the cradle, make them soldiers or eunuchs, according to their constitutions, and leave the father and mother to wipe away each other's
Now whether is it best, to be Tamerlane's dog or his subject? Doubtless his dog has by much the best of it.
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. 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 French is for proportioning punishments to of fences.
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 punished by a restitution of four-fold? 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 delit contre la société par un delit contre nature? *
Superfluous property is the creature of society. Simple and mild laws were sufficient to guard the
• Ought a crime against society to be punished by a crime against nature?
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 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 an 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 suf fer, 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
make an unjust law? And if the law itself be unjust, may it not be the "instrument" which ought to raise the author's and every body'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 three pence. Is there any proportion between the injury done by a theft, value fourteen shillings and three-pence, 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 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 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 govern ment 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