13. But this is so important a matter, and there have been such monstrous doctrines and projects put forth by Malthus, by the Edinburgh Reviewers, by Lawyer Scarlett, by Lawyer Nolan, by Sturges Bourne, and by an innumerable swarm of persons who have been giving before the House of Commons what they call “evidence:” there have been such monstrous doctrines and projects put forward by these and other persons; and there seems to be such a lurking desire to carry the hostility to the working classes still further, that I think it necessary in order to show, that these English poor-laws, which have been so much calumniated by so many greedy proprietors of land; I think it necessary to show, that these poor-laws are the things which men of property, above all others, ought to wish to see maintained, seeing that, according to the opinions of the greatest and the wisest of men, they must suffer most in consequence of the abolition of those laws; because, by the abolition of those laws, the right given by the laws of nature would revive, and the destitute would take, where they now simply demand (as Blackstone expresses it) in the name of the law. There has been some difference of opinion, as to the question, whether it be theft or no theft; or, rather, whether it be a criminal act, or not a criminal act, for a person, in a case of extreme necessity from want of food, to take food without the assent and even against the will, of the owner. We have, amongst our great lawyers, Sir Matthew Hale and Sir William Blackstone, who contend (though as we shall see, with much feebleness, hesitation, and reservation,) that it is theft, notwithstanding the extremity of the want; but there are many, and much higher authorities, foreign as well as English, on the other side. Before, however, I proceed to the hearing of these authorities, let me take a short view of the origin of the poor laws in England; for that view will convince us, that, though the present law was passed but a little more than two hundred years ago, there had been something to effect the same purpose ever since England had been called England.
14. According to the Common Law of England, as recorded in the Mirrour of Justices, a book which was written before the Norman Conquest; a book in as high reputation, as a law-book, as any one in England; according to this book, Chapter 1st, Section 3d, which treats of the “First constitutions made by the antient kings;” According to this work, provision was made for the sustenance of the poor. The words are these: “It was ordained, that the poor should be sustained by parsons, by rectors of the church, and by the parishioners, so that none of them die for want of sustenance.” Several hundred years later, the canons of the church show, that when the church had become rich, it took upon itself the whole of the care and expense attending the relieving of the poor. These canons, in setting forth the manner in which the tithes should be disposed of, say, “Let the priests set apart the first share for the building and ornaments of the church; let them distribute the second to the poor and strangers, with their own hands, in mercy and humility; and let them reserve the third part for themselves.” This passage is taken from the canons of Elfric, canon 24th. At a later period, when the tithes had, in some places, been appropriated to convents, acts of Parliament were passed, compelling the impropriators to leave, in the hands of their vicar, a sufficiency for the maintenance of the poor. There were two or three acts of this sort passed, one particularly in the twelfth year of Richard the Second, chapter 7th. So that here we have the most ancient book on the Common Law; we have the canons of the church at a later period; we have acts of Parliament at a time when the power and glory of England were at their very highest point; we have all these to tell us, that in England, from the very time that the country took the name, there was always a legal and secure provision for the poor, so that no person, however aged, infirm, unfortunate, or destitute, should suffer from want.
15. But, my friends, a time came when the provision made by the Common Law, by the Canons of the Church, and by the Acts of the Parliament coming in aid of those canons; a time arrived, when all these were rendered null by what is called the Protestant Reformation. This “Reformation,” As it is called, sweeped away the convents, gave a large part of the tithes to greedy courtiers, put parsons with wives and children into the livings, and left the poor without any resource whatsoever. This terrible event, which deprived England of the last of her possessions on the continent of Europe, reduced the people of England to the most horrible misery; from the happiest and best fed and best clad people in the world, it made them the most miserable, the most wretched and ragged of creatures. At last it was seen that, in spite of the most horrible tyranny that ever was exercised in the world, in spite of the racks and the gibbets and the martial law of Queen Elizabeth, those who had amassed to themselves the property out of which the poor had been formerly fed, were compelled to pass a law to raise money, by way of tax, for relieving the necessities of the poor. They had passed many acts before the FORTY-THIRD year of the reign of this Queen Elizabeth; but these acts were all found to be ineffectual, till, at last, in the forty-third year of the reign: of this tyrannical Queen, and in the year of our Lord 1601, that famous act was passed, which has been in force until this day; and which, as I said before, is still in force, notwithstanding all the various attempts of folly and cruelty to get rid of it.
16. Thus, then, the present poor-laws are no new thing. They are no gift to the working people. You hear the greedy landowners everlastingly complaining against this law of Queen Elizabeth. They pretend that it was an unfortunate law. They affect to regard it as a great INNOVATION, seeing that no such law existed before; but, as I have shown, a better law existed before, having the same object in view. I have shown, that the “Reformation,” as it is called, had sweeped away that which had been secured to the poor by the Common Law, by the Canons of the Church, and by ancient Acts of Parliament. There was nothing new, then, in the way of benevolence towards the people, in this celebrated Act of Parliament of the reign of Queen Elizabeth; and the landowners would act wisely by holding their tongues upon the subject; or, if they be too noisy, one may look into their GRANTS, and see if we cannot find something THERE to keep out the present parochial assessments.
17. Having now seen the origin of the present poor-laws, and the justice of their due execution, let us return to those authorities of which I was speaking but now, and an examination into which will show the extreme danger of listening to those projectors who would abolish the poor-laws; that is to say, who would sweep away that provision which was established in the reign of Queen Elizabeth, from a conviction that it was absolutely necessary to preserve the peace of the country and the lives of the people. I observed before that there has been some difference of opinion amongst lawyers as to the question, whether it be, or be not, theft, to take without his consent and against his will, the victuals of another, in order to prevent the taker from starving. Sir Matthew Hale and Sir William Blackstone say that it is theft. I am now going to quote the several authorities on both sides, and it will be necessary for me to indicate the works which I quote from by the words, letters, and figures which are usually made use of in quoting from these works. Some part of what I shall quote will be in Latin: but I shall put nothing in that language of which I will not give you the translation. I beg you to read these quotations with the greatest attention; for you will find, at the end of your reading, that you have obtained great knowledge upon the subject, and knowledge, too, which will not soon depart from your minds.
18. I begin with Sir Matthew Hale, (a Chief Justice of the Court of King’s Bench in the reign of Charles the Second,) who, in his Pleas of the Crown, Chap. IX., has the following passage, which I put in distinct paragraphs, and mark A, B, and C.
19. A. “Some of the casuists, and particularly Covarruvius, Tom. I. De furti et rapinæ restitutione, § 3, 4, p. 473; and Grotius, de jure belli, ac pacis; lib. II. cap. 2. § 6, tell us, that in case of extreme necessity, either of hunger or clothing, the civil distributions of property cease, and by a kind of tacit condition the first community doth return, and upon this those common assertions are grounded: ‘Quicquid necessitas cogit, defendit.’ [Whatever necessity calls for, it justifies.] ‘Necessitas est lex temporis et loci.’ [Necessity is the law of time and place.] ‘In casu extremæ necessitatis omnia sunt communia.’ [In case of extreme necessity, all things are in common;] and, therefore, in such case theft is no theft, or at least not punishable as theft; and some even of our own lawyers have asserted the same; and very bad use hath been made of this concession by some of the Jesuitical casuists of France, who have thereupon advised apprentices and servants to rob their masters, where they have been indeed themselves in want of necessaries, of clothes or victuals; whereof, they tell them, they themselves are the competent judges; and by this means let loose, as much as they can, by their doctrine of probability, all the ligaments of property and civil society.”
20. B. “I do, therefore, take it, that, where persons live under the same civil government, as here in England, that rule, at least by the laws of England, is false; and, therefore, if a person being under necessity for want of victuals, or clothes, shall, upon that account, clandestinely, and ‘animo furandi,’ [with intent to steal,] steal another man’s goods, it is felony, and a crime, by the laws of England, punishable with death; although, the judge before whom the trial is, in this case (as in other cases of extremity) be by the laws of England intrusted with a power to reprieve the offender, before or after judgment, in order to the obtaining the King’s mercy. For, 1st, Men’s properties would be under a strange insecurity, being laid open to other men’s necessities, whereof no man can possibly judge, but the party himself. And, 2nd, Because by the laws of this kingdom [here he refers to the 43 Eliz. cap. 2] sufficient provision is made for the supply of such necessities by collections for the poor, and by the power of the civil magistrate. Consonant hereunto seems to be the law even among the Jews; if we may believe the wisest of kings. Proverbs vi. 30, 31. ‘Men do not despise a thief, if he steal to satisfy his soul when he is hungry, but if he be found, he shall restore seven-fold, he shall give all the substance of his house.’ It is true, death among them was not the penalty of theft, yet his necessity gave him no exception from the ordinary punishment inflicted by their law upon that offence.”
21. C. “Indeed this rule, ‘in casu extremæ necessitatis omnia sunt communia,’ does hold, in some measure, in some particular cases, where, by the tacit consent of nations, or of some particular countries or societies, it hath obtained. First, among the Jews, it was lawful in case of hunger to pull ears of standing corn, and eat, (Matt. xii. 1;) and for one to pass through a vineyard, or olive-yard, to gather and eat without carrying away. Deut. xxiii. 24, 25. Second, By the Rhodian law, and the common-maritime custom, if the common provision for the ship’s company fail, the master may, under certain temperaments, break open the private chests of the mariners or passengers, and make a distribution of that particular and private provision for the preservation of the ship’s company.” Vide Consolato del Mare, cap. 256. Le Customes de la Mere, p. 77.
22. Sir William Blackstone agrees, in substance, with Hale; but he is, as we shall presently see, much more eager to establish his doctrine; and, we shall see besides, that he has not scrupled to be guilty of misquoting, and of very shamefully garbling, the Scripture, in order to establish his point. We shall find him flatly contradicting the laws of England; but, he might have spared the Holy Scriptures, which, however, he has not done.