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HALÉ, there is no other reason, say what you and that the distinction was here made for the will about the matter. There stand the over- express purpose of preventing the man who seer and the civil magistrate to take care that took food to relieve bis hunger from being such necessities be provided for; and if they confounded with the thief: Upon any other did not staud there for that purpose, the law inierpretation, it makes the passage contain: of nature would be revived in behalf of the nonsense and immorality; and, indeed, GROsuffering creature.
Tius says that the latter text does not apply to 24. HALE, not content however with this act the person mentioned in the former. The latter of Queen Elizabeth, and still hankering text could not mean a mao taking food from after this hard doctrine, furbishes up a bit of necessity. It is impossible that it can mean Scripture, and calls Slomon the wisest of that ; because the man who was starving for king's on account of these ewo verses which he want of food could not have sevenfold; could has taken. Hale observes, indeed, that the not have any substance in his house. But Jews did not put thieves to death ; but, to re- what are we to think of JUDGE BLACKSTONR, store seven-fold was the ordinary punishment, who, in his Book IV., chap. 2, really garbles. inflicted by their law, for theft; and here, these texts of Scripiure. He clearly saw the says he, we see, that the extreme necessity effect of the expression, “MEN DO NOT gave no exemption. This was a piece of such DESPISE;" he saw what an awkward figure flagravt sophistry on the part of HALE, that these words made, coming before the words be could not fiud in his heart to send it forth “ A THIEF;" he saw that, wish these words to the world without a qualifying observation; in the text, he could never succeed in making but even this qualifying observation left the his readers believe that a man ought to be sophistry still so shameful, that his editur, Mr. hanged for takiog food to save his life. He EMLYN, who published the work under the clearly saw that he could not make meu beau bority of the House of Commons, did not lieve that God had said this, unless he could, think it consistent with his reputation to suffer somehow or other, get rid of those words about this passage to go forth unaccompanied with NOT DESPISING the thief that took victuals the following remark : " But their (the Jews') when be was hungry. Being, therefore, very
ordinary punishment being entirely pecu. much pestered and anuoyed by these words
niary, could affect him only when he was about NOT DESPISING, what does he do but * found in a condition to answer it ; and there fairly leave them out? And not only leave them “ fure the same reasons which could justify out, but leave out a part of both the verses, S that, cau, hy uo means, be extended to a keeping in that part of each that suited him,
corporal, much less to a capital punish- and no more; nay, further, leaving out one “ ment." Certainiy: and this is the fair in- word, and putting in another, giving a sense terpretation of these two verses of the Pro- to the whole which he knew well never was verbs. PUFFENDORF, one of the greatest au- inteuded. He states the passage to be this : thorities that the world knows anything of, “ If a thief steal to satisfy his soul when he is observes, upon the argument built upon this “ hungry, he shall restore sevenfold, and shall text of Scripture, “ It may be ubjected, that, “ give all the substance of his house." No
in Proverbs, chap. vi. verses 30, 31, he is broomstick that ever was handled would have s called a thief, and pronounced obnoxious to been too heavy or too rough for the shoulders
the penalty of theft, who steals to satisfy bis of this dirty souled man. HALE, with all his
hunger; but whoever closely views and desire to make out a case in favour of severity, “ cousiders that text will find that the thief has given us the words fairly: but this shuff" there ceasured is neither in such extreme ing fellow; this smooth-spoken and meau
necessity as we are now supposing, nor seems wreich, who is himself thief enough, God "to bave fallen into his needy condition knows, if stealing other men's thoughts and
merely by ill fortune, without his own idle words constitute thest; this intolerably mean
ness or default : for the context implies, reptile has, in the first place, left out the words " that be bad a house and goods sufficient to " men do not despise;" theu be bas left out « make seven-fuld restitution ; which he the words at the beginning of the next text, "might have either sold or pawned; a chap-“ but if he be found.” Then in place of the
man or creditor being easily to be met with " he," which comes before the words “ shall "in times of plenty and peace; for we have give,” he puts the word " and;" aod thus he
no grounds to think that the fact there men- makes the whole apply to the poor creature * tioned is supposed to be committed, either that takes to satisfy his soul when he is
in time of war, or upon account of the ex- hungry! He leaves out every mitigating "traordinary price of provisions."
word of the Scripture; and, in his reference, 25. Besides this, I think it is clear that he represents the passage to be in one verse ! these two verses of the Proverbs do not ap- Perhaps, even in the history of the conduct of ply to one and the same person ; for in the first crown-lawyers, there is not to be found menverse it is said, that men do not despise a thief tion of an act so cnolly bloody-minded as this. if be steal to satisfy bis soul when he is hun- It has often been said of this BLACKSTONE, gry. How, then, are we to reconcile this that he not only lied himself, but made others with morality ? Are we not to despise a thief ? lie; he has made, as far as he was able, It is clear that the word thief does not apply a liar of King Solomon himself; he has wilto the first case; but to the second case unly; Sully garbled the Holy Scripture ; and that,
too, for the manisest purpose of justifying" but thou shalt not put any in thay vessel ;” cruelty in courts and judges; for tbe manisest that is to say, that you should not go and make purpose of justifying ihe most savage oppres- wine in his viveyard au carry it away. Then sion of the poor.
in case of the corn, precisely the same law is 26. After all, Hale has not the courage to laid down. You may pluck with your hand; send forth this doctrine of his, without allow. but not use the hook, or a sickle. Nothing ing, that the case of extreme necessity does, in can be plainer than this: no distinction can
some measure," and " in particular cases, be wiser, nor more just. HALE saw the force and,“ by the tacit or silent consent of nations, of it ; and therefore, as these texts made very hold good! What a crowd of qualifications is strongly against him, he does not give them at here! With what reluctance he confesses that full length, but gives us a misrepresenting which all the world knows to be true, that the abbrevia jon. disciples of Jesus Christ pulled off, without 28. He had, however, too much regard for leave,the ears of staudiog coru, and ate them, bis reputation to conclude without acknow“ being an hungered.” Aud'here are two ledging the right of seizing on the provisions things to observe upon. In the first place this of others at sea. He allows that private chests corn was not what we call corn here in England, may be broken open to prevent men from dying or else it would have been very droll sortof stuff with huuger at sea. He does not stop to tell to crop off and cat. It was what the Americans us why men's lives are more precious un sea call Indian corn, what the French call T'urkish thau on land. He does not attempt to reconcorn, and what is called corn (as beivg tar cile these liberties given by the Scripture, surpassing all other in excelleuce) in the and by the maritime laws, with bis own hard Eastern countries where the Scriptures were doctrine. lo short, he briogs us to this at written. About four or five ears of this corn, last : that he will not acknowledge, that it is of which you strip all the busk off in a minute, not theft to take another man's goods, without are enough for a mau's breakfast or diwuer; his consent, under any circumstances; but, and by about the middle of August this corn while be will not acknowledge this, he plainly is just as wholesome and as efficient as bread. leaves us to conclude, that no English judge So that this was something to take and eat with and no English king will ever punish a poor out the owner's leave; it was something of creature that takes victuals to save himself value; and observe, that the Pharisees, though from perisbing ; and he plainly leaves us to su strongly disposed to find fault with every- conclude, that it is the poor-laws of England; thing that was done by Jesus Christ and his that it is their existence and their due execudisciples, dil not fiud fault of their taking the ion, which deprive everybody in England of corn to eat; did not call them thieves ; did the right to take food and raimeut in case of not propose to punish them for theft; but extreme necessity. found fault of them ovly for baving plucked the 29. Here I agree with him most cordially; corn on the Sabbath day! To pluck the corn and it is because I agree with him in this, that was to do work, and these severe critics found 1 deprecate the aboinivable projects of those fault of this working on the Sabbath-day. I who would aonibilate the poor-laws, seeing Then, vut comes another fact, which Hale that it is those very poor-laws which give under might have vo'iced if he laid chosen it; all circumstances, really legal security to pronamely, that our Saviour reminds the Pharisees perty. Without them, cases must frequently that “ David and his companions, being an arise, which would, according to the law of “ hungered entered into the House of God, nature, according to the law of God, and, as “ and did eat the show. bread, to eat which we shall see before we have done, according to
was unlawful in anybody but the priests." the law of Englaud, bring us into a state, or, Thus, that wbich would have been sacrilege at least, bring particular persons into a state, under any other circumstances; that which which as far as related to them would cause the would have been one of the most horrible of law of nature to revive, and to make all crimes against the law of God, became no crime things to be owned in common. To adhere, at all when committed by a person pressed by then, to these poor-laws; to cause them to hunge.
be duly executed, to prevent every encroach27. Nor las Judge Hale fairly interpreted ment upon them, to preserve them as the the two verses of DeUTERONOMY. He repre- apple of our eye, is the duty of every Ensents the maiter thus : that, if you be passing glishman, as far as he bas capacity so to do. through a vineyard or an olive-yard you may 30. I have, my friends, cited, as yet, augather and eat, without being deemed a thief. thorities only on one side of tbis great subject, This interpretation would ake au English- which it was my wish to discuss in this one man believe, that the Scripture allowed of this Number. I find that to be impossible, without taking and eating, only where there was a leaving undone much more than half my work. lauful foot-way through the vineyard. This is 1 am extremely anxious to cause this matter a very gross misrepresentation of the matter; to be well understood, not only by the working for if you look at the two texts, you will find, classes, but by the owners of the laud and the that they say that, “ when thou comest into; magistrates. I deem it to be of the greatest that is to say, when thou enterest or goest into, pessible importance; and, while writing on it,
thy neighbour's vineyard, then thou mayest 1 adilress anyself to you, because I most sineat grapes thy fill, at thine own pleasure, cerely declare that I have a greater respect for you than for any other body of persons that I " work or starve, yet must luse all their know anything of.
" weight and efficacy in England, where 31. So much for Judge Hale's doctrine upon “charily is reduced to a system, and intere the subject, and for the foul conduct of Black" woven in our very constitution. Therefore, Stone, the author of the Commentaries on the vur laws ought by no means to be taxed Laws of England. I will not treat this un- “ with being unmerciful, for denyiug this priucipled lawyer, this shocking court syco-“ privilege to the necessitous; especially phant; I will not treat hiin as he has treated " when we consider, that the king, on the King Solomon and the Holy Scriptures ; I will ” representation of his ministers of justice, root garble, misquote, and belie hiin, as he “ hath a power to soften the law, and to exgarbled, misquoted, and belied them; I will " tend mercy in cases of peculiar bardship. give the whole of the passage to which I allude, “ An advaniaye which is wanting in many and wbich my readers may find in the Fourth " states, particularly those which are demoBook of his Commentaries. I request you to “ cratical: aud these have in its stead introread it with great attention ; and to compare • duced and adopted, in the body of the law it, very carefully, with the passage that I have “ itself, a multitude of circumstances tending quoted from Sir MatineW Hale, wbich you to alleviate its rigour. But the founders of will find in paragraphs from 16 to 13 inclusive. “ our constitution thought it better to vest in Tbe passa é fruin Blackstone is as follows': “ the crown the power of pardoning peculiar
31. “ There is yet auother case of neces. “ objects of compassion, than to countenance sity, which has occasioned great speculatiou " and establish theft by one general undistin.
among the writers upon general law; viz. “ guishing law." " whether a man in extreme want of food or 33. First of all, I beg you to observe, that
clothing may justify stealing either, to re- this passage is merely a Aagrant act of theft “ lieve his present uecessities. And this both committed upon Judųe Hale: next, you per: “ Grotius 'aud PuFFENDORF, together with ceive, that which I noticed in paragraph 25,
many other of the foreigu jurists, hold in a most base and impudent garbliug of the " the affirmative; maintaining by many in- Scriptures. Next, you see, that BLACKSTONE,
genious, humane, and plausible reasons, like Hale, comes, at last, to the poor-laws; " that in such cases the community of goods and iells us that to take other men's goods “ by a kind of tacit coucession of society is without leave, is theft, because “ charity is " revived. And some even of our own lawyers “ here reduced to a system, aud iuterwoven in “ have held the same; though it seems to be " our very constituivu.” That is to say, to
an unwarranted doctrine, borrowed from the relieve the vecessitous; to prevent their suf“ notions of some civilians : at least it is now sering from want; complete.y to render starve " antiquated, the law of England adınittiugation impossible, makes a part of our very
Do such excuse at present. And this its | coustitution. " THEREFORE, our laws " doctrine is agreeable not only to the senti. I onight by no means to be taxed with being "ments of many of the wisest ancients, par- " un merciful for deoying this privilege to the “ ticularly Cicero, who holds that • “ necessitous." Pray mark the word there. "cuique incommodum ferendum est, potius fore. You see, our laws, he says, are not to «« quam de alterius commodis detrahen- be taxed with being uwmercilul in deeming 6. "dum ;' but also to the Jewish law, as cer- the uecessituus taker a thief. And why are “ tified by King Solomon bimself: If a thief they not to be deemed unmerciful? BE“steal to salisty his soul when he is hungry, CAUSE the laws provide effectual relief for "' be shall restore seventold, and shall give al the necessitous. It follows, then, of course, " the substance of his bouse;' which was eveu according to BLACKSTONE himself, that " the ordinary punishment for theft in that if the constitution had not provided this effec“ kingdom. And this is founded upon the tual relief for the necessitous, then the laws “ highest reason : for men's properties would would have been unmerciful in deerning the “ be uuder a strauge insecurity, if liable to be necessirous taker a thief. “invaded according to the wants of others; 34. But now let us hear what GROTIUS " of which wants no man can possibly he an and that PUFFENDORF say ; let us hear what
adequate judge, but ine party himself who these great writers on the law of nature and “ pleads them. in this country especially, of nations say upon this subject. BLACK“there would be a peculiar impropriety in stone has mentioned the names of them both : “admitting so dubious au excuse: for by our but he has not thought proper to notice their ". laws such a sufficient provision is made for arguments, much less has he attempted to " the poor by the power of the civil magis- answer thein. They are two of the most cele“ trate, that it is impossible that the most braied men that ever wrote; and their writings “ veedy stranger should ever be reduced to are referred to as bigh authority, with regard " the vecessity of thieving to support pacure. to all the subjects of which they have treated. “ This case of a stranger is, by the way, the Tbe following is a passage from Grotius, on
strongest instance put by Baruu Puffen. War and Peace, Book II. chap. 2. DORF, and whereon he builds his principal 35. “Let us see, further, what common arguments : which, however they inay huld“ right there appertains to men in those things
upou the continent, where the parsimonious " which have already become the property of “industry of the natives orders every one to individuals. Some persons, perchance, may
“ consider it strange to question this, as pro. (you will please to bear in mind, that both “prietorship seems to have absorbed all that those writers are of the greatest authority “right which arose out of a state of things in upon all subjects connected with the laws of « common. But it is not so. For, it is to be nature and of nations. We read in their works “considered, what was the intention of those the result of au age of study : they have been “ who first introduced private property, wbich two of the great guides of mankind ever since
we may suppose to have been such, as to they wrote; and, we are not to throw them “ deviate as little as possible from natural aside, in order to listen exclusively to Parson “ equity. For if even written laws are to be Hay, to HULTON of Hulton, or to NICHOLAS
construed in that sense as far as it is prac- GRIMSHAW. They tell us wbat they, and what "ticable, much more su are customs, which other wise men, deemed to be right; and, as “ are not fettered by the chains of writers.-- we shall by.and-by see, the laws of Englaud, “ Hence it follows, first, that, in case of ex'. $0 justly boasted of by our ancestors, hold “treme necessity, the pristine right of using precisely the same language with these cele" things revives, as much as if they had re- brated men. After the following passage from “mained in common; because, in all human PuFFENDORF, I shall show you what our own “ laws, as well as in ibe law of private pro- lawyers say upon the subject; but I request “perty, this case of extreme necessity appears you to reail the following passage with the “ to have been excepted.—So, if the means of greatest attention. “ sustenance, as in case of a sea-voyage, 35." Let us inquire, in the next place, “ should chance to fail, that which any indi. " whether the necessity of preserving our life “vidual may have, should be shared in com- can give us any right over other men's
And thus, a fire haviug broken out, “goods, so as to make it allowable for us to “I am justified in destroying the house of my " seize on them for our relief, either secretly “ neighbour, in order to preserve my own " or by open force, against the owner's consent. “ house; and I may cut in two the ropts or “ For the more clear and solid determination “cords amongst which any ship is driven, if " of which point, we think it necessary to “it cannot be otherwise disentangled. All“ bint in short on the cause upon which dis“ which exceptions are not made in the writ-" tinct properties were first introduced in the " ten law, but are presumed.- For the opinion" world; de igning to examine them more at “ has been acknowledged amongst divilles," large in their proper place. Now the main “that, if any one, in such case of vecessity, reason on which properties are founded, we “ take from another person what is requisite " take to be these two; that the feuds and “ for the preservation of his life, he does not“ quarrels might be appeased which arose in “ commit a theft. The meaning of which de " the primitive communion of things, aud that “ finition is not, as many contend, that the “ meo might be put under a kind of neces“ proprietor of the thing he bound to give to “ sity of being industrious, every one being "the needy upon the principle of charity :" to get his maintenance by his own ar plication “but, that a'l things distinctly vested in pro. " and labour. This division, therefore, of “prietors ought to be regarded as such with “goods, was not made that every person “a certain benign acknowledgment of the pri- fu should sit idly brooding over the share of “ mitive right. For if the original distribu-1" wealth he had got, without assisting or serv“tors of things were questioned, as to what "ing his feilows; but that any one might " they thought about this matter, they would " dispose of his things how he pleased ; aud " reply what I have said. Necessity, says “ if he thought fit to communicate them to “ Father Seneca, the great crcuse for human “ others, he might, at least, he thus furnished “weakness, breaks every law ; that is to say, " with an opportunity of laying obligations on “ human law, or law made after the manner " the rest of maukiul. Hence, when proper
“ ties were once established, men obtained a 36. “But cautions ought to be bad, for “ power, not only of exercising commerce to “ fear this license should be abused : of which “ their mutual advantage and gain, but like“the principal is, to try, in every way, whe" wise of dispensing more largely in the works “ther the necessity can be avoided by any " of humanity and beneficence; whence their “ other means ; lor instance, by making ap- “ dilig-uce had procured them a greater share “plication to the magistrate, or even by try- " of goods than others : whereas before, when
ing whether the use of the thivg can, by " all things lay in common, meu could lend « entreaties, be obtained from the proprietor. “ one another no assistance but what was “ Plato permits water to be fetched from the “ supplied by their corporeal ability, and “ well of a neighbour upon this condition" could be charitable of nothing but of their " alone, ibat the persou asking for such per- “ strength. Purther, such is the force of pro“ mission shall dig in his own well in search “perty, that the proprietor bath a right of « of water as far as the chalk: and Solon, “ deliveriug his goods with his own hands; " that he shall dig in his own well as far as even such as he is obliged to give to others. “ forty cubits. Upon which PLUTARCH adds,“ Whence it follows, that when one man has “ that he judged that necessity uus to be re- anything owing from another, he is not pre“ lieved, not laziness to be encouraged.”. sently to seize on it at a venture, but ought
37. Such is the ductrine of this celebrated" to apply himself to the owner, desiring to civilian. Let us now hear PuffeNDOKT; and," receive it from his disposal. Yet in case the
« of wau.
« other party refuse thus to make good bis 1" without reason, must the poor creature " obligation, the power and privilege of pro 6 starve in this miserable condition ?"
perty dotb not reach so far as that the 39. Many other great foreign authorities
things may not be taken away without the might be referred to, and I cannot help men"owner's consent, either by the authority of the tioning CovARRUVIUS, who is spoken of by “ magistrate in civil communities, or in a state JUDGE HALE, and who expresses himself " of nature, by violence and hostile force. And upon the subject in these words : “ The " though in regard to bare natural riglıt, for " reason why a man in extreme necessity, “ a man to relieve another in extremity when may, without incurring the guilt of theft or “ his goods, for which he himself hath not su “ rapine, forcibly take the goods of others for * much occasion, he a duty obliging only " his present relief, is, because his condition
imperfectly, and not in the manner of a debt, “ renders all things common. For it is the “ siūce it arises wholly from the virtue of “ ordinance and institution of nature itself, “ humanily; yet there seems to be no reason that interior things should be designed and “ wby, by the additional force of a civil ordi- " directed to serve the necessities of men. “ Dance, it may not be turned into a strict " Wherefore the division of goods afterse and perfect obligation. And this Selden oh- “ wards introduced into the world doth
serves to have been done among the Jews; " not derogate from that precept of na“ who, upon a man's refusing to give such“ tural reason, which suggests, that the • alms as were proper for him, could force him “ extreme wants of mankind may be in any “ to it by an action at law. It is po wouder, “ manner removed by the use of tempo“ therefore, that they should forbid their poor," ral possessions.” PUFFENDORF tells us,
on any account, io seize on the goods of that PERESIUs maintains, that in case of ex« others, enjoining them to take only what|treme necessity, a man is compelled to the « private persons, or tbe public officers, or action, by a force which he cannot resist; “ stewards of alms, should give them on thrir and then, that the owner's consent may be “ petition. Whence the stealiug of what was presumed on, because humanity obliges him “ another's, though upon extreme necessity, to succour those who are in distress. The
passed in that state for theft or rapine. But sanie writer cites a passage from St. Amnow supposing under another government the
BROSE, one of the Fathers of the church, “ like good provision is not made for persons in which alleyes that in case of refusing to give " want, supposing likewise that the covetuus to persons in extreme necessity), it is the
temper of men of substance cannot be pre: person who retains the goods that is guilty of “ vailed on to give reliel, and that the needy the act of wrong doing, for St.Ambrose says, “ creature is not able, either by his work " it is the bread of the hungry which you de« or service, or by making sale of any
tain; it is the raiment of the naked which “ thing that he possesses, to assist his
you lock up." “ present necessity, must he, therefore, pe« rish with famine? Or can any human in- Irities on the same side, let me again notice
40. Before I come to the English autho« stitution bind me with such a force that, in the foul dealing of Blackstone ; let me point case another man neglects his duty towards I must rather die, than recede a little out another instance or two of the insincerity
of this English court sycoplant, who was, let from the ordinary and regular way af act « ing? We conceive, therefore, that such a the “ good old king.” You have seen, in
it be noted, solicitor-general t) the queen of person doth not contract the guilt of theft, " who bappening, not through his own fauit, paragraph 25, a most flagrant instance of
his “ to be in extreme want, either of necessary
perversion of Scriptures. He garbles the “ food, or of clothes to preserve bim from the of word God, and prefaces the garbling by “ violence of the weather, and cannot obiain calling it a thing “ certified by King Solomon “ them from the voluntary gift of the rich, himself;" and this word certifiod he makes " either by urgent entreaties, or by offering use of just when he is abont to begin the “ somewhat equivalent in price, or by eo scandalous falsification of the text which he "gaging to work it out, shall either forcibly is referring to. Never was anything inore
or privily relieve himself out of their ubun- base. But, the whole extent of the baseness “ dance ; especially if he do it with full in. we have not yet seen; for BLACKSTONE had « tention to pay the value of them whenever read HALE, who had quoted the two verses "s his better fortune gives him ability. Sume fairly ; but besides this, he had read Puf" men deny that such a case of necessity as FENDORF, who had noticed very fully this
we speak of can possibly happen. But what text of Scripture, and who had shown very « if a mau should wander in a foreign land, clearly that it did not at all make in favour “ unkuown), friendless, and in want, spoiled of the doctrine of Blackstone. Blackstone « of all he bad by shipwreck, or by robbers, onght to have given the argument of “ or having lost by some casualty whatever PUFFENDORF; he onght to have given the “ be was worth in his own country ; should whole of bis argument; but particularly he « none be found willing either to relieve bis ought to have given this explanation of the “ distress, or to hire his service, or should passage in the PROVERBS, which explanation « they rather (as it commonly happens), see- I have inserted in paragraph 24. It was “ iug bim in a good garb, suspect him to beg also the height of insiocerity in BLACKSTONE,