33. I have, my friends, cited, as yet, authorities only on one side of this great subject, which it was my wish to discuss in this one Number. I find that to be impossible without leaving undone much more than half my work. I am extremely anxious to cause this matter to be well understood, not only by the working classes, but by the owners of the land and the magistrates. I deem it to be of the greatest possible importance; and, while writing on it, I address myself to you, because I most sincerely declare that I have a greater respect for you than for any other body of persons that I know any thing of. The next Number will conclude the discussion of the subject. The whole will lie in a very small compass. Sixpence only will be the cost of it. It will creep about, by degrees, over the whole of this kingdom. All the authorities, all the arguments, will be brought into this small compass; and I do flatter myself that many months will not pass over our heads, before all but misers and madmen will be ashamed to talk of abolishing the poor-rates and of supporting the needy by grants and subscriptions.
I am,
Your faithful friend and
Most obedient servant,
Wm. Cobbett.
NUMBER II.
Bollitree Castle, Herefordshire, 22d Sept. 1826.
My Excellent Friends,
34. In the last Number, paragraph 33, I told you, that I would, in the present Number, conclude the discussion of the great question of theft, or no theft, in a case of taking another’s goods without his consent, or against his will, the taker being pressed by extreme necessity. I laid before you; in the last Number, Judge Hale’s doctrine upon the subject; and I there mentioned the foul conduct of Blackstone, the author of the “Commentaries on the Laws of England.” I will not treat this unprincipled lawyer, this shocking court sycophant; I will not treat him as he has treated King Solomon and the Holy Scriptures; I will not garble, misquote, and belie him, as he garbled, misquoted, and belied them; I will give the whole of the passage to which I allude, and which my readers may find in the Fourth Book of his Commentaries. I request you to read it with great attention; and to compare it, very carefully, with the passage that I have quoted from Sir Matthew Hale, which you will find in paragraphs from 19 to 21 inclusive. The passage from Blackstone is as follows:
35. “There is yet another case of necessity, which has occasioned great speculation among the writers upon general law; viz., whether a man in extreme want of food or clothing may justify stealing either, to relieve his present necessities. And this both Grotius and Puffendorf, together with many other of the foreign jurists, hold in the affirmative; maintaining by many ingenious, humane, and plausible reasons, that in such cases the community of goods by a kind of tacit concession of society is revived. And some even of our own lawyers have held the same; though it seems to be an unwarranted doctrine, borrowed from the notions of some civilians: at least it is now antiquated, the law of England admitting no such excuse at present. And this its doctrine is agreeable not only to the sentiments of many of the wisest ancients, particularly Cicero, who holds that ‘suum cuique incommodum ferendum est, potius quam de alterius commodis detrahendum;’ but also to the Jewish law, as certified by King Solomon himself: ‘If a thief steal to satisfy his soul when he is hungry, he shall restore seven-fold, and shall give all the substance of his house:’ which was the ordinary punishment for theft in that kingdom. And this is founded upon the highest reason: for men’s properties would be under a strange insecurity, if liable to be invaded according to the wants of others; of which wants no man can possibly be an adequate judge, but the party himself who pleads them. In this country especially, there would be a peculiar impropriety in admitting so dubious an excuse; for by our laws such a sufficient provision is made for the poor by the power of the civil magistrate, that it is impossible that the most needy stranger should ever be reduced to the necessity of thieving to support nature. This case of a stranger is, by the way, the strongest instance put by Baron Puffendorf, and whereon he builds his principal arguments; which, however they may hold upon the continent, where the parsimonious industry of the natives orders every one to work or starve, yet must lose all their weight and efficacy in England, where charity is reduced to a system, and interwoven in our very constitution. Therefore, our laws ought by no means to be taxed with being unmerciful, for denying this privilege to the necessitous; especially when we consider, that the king, on the representation of his ministers of justice, hath a power to soften the law, and to extend mercy in cases of peculiar hardship. An advantage which is wanting in many states, particularly those which are democratical: and these have in its stead introduced and adopted, in the body of the law itself, a multitude of circumstances tending to alleviate its rigour. But the founders of our constitution thought it better to vest in the crown the power of pardoning peculiar objects of compassion, than to countenance and establish theft by one general undistinguishing law.”
36. First of all, I beg you to observe, that this passage is merely a flagrant act of theft, committed upon Judge Hale; next, you perceive, that which I noticed in paragraph 28, a most base and impudent garbling of the Scriptures. Next, you see, that Blackstone, like Hale, comes, at last, to the poor-laws; and tells us that to take other men’s goods without leave, is theft, because “charity is here reduced to a system, and interwoven in our very constitution.” That is to say, to relieve the necessitous; to prevent their suffering from want; completely to render starvation impossible, makes a part of our very constitution. “THEREFORE, our laws ought by no means to be taxed with being unmerciful for denying this privilege to the necessitous.” Pray mark the word therefore. You see, our laws, he says, are not to be taxed with being unmerciful in deeming the necessitous taker a thief. And why are they not to be deemed unmerciful? BECAUSE the laws provide effectual relief for the necessitous. It follows, then, of course, even according to Blackstone himself, that if the Constitution had not provided this effectual relief for the necessitous, then the laws would have been unmerciful in deeming the necessitous taker a thief.
37. But now let us hear what that Grotius and that Puffendorf say; let us hear what these great writers on the law of nature and of nations say upon this subject. Blackstone has mentioned the names of them both; but he has not thought proper to notice their arguments, much less has he attempted to answer them. They are two of the most celebrated men that ever wrote; and their writings are referred to as high authority, with regard to all the subjects of which they have treated. The following is a passage from Grotius, on War and Peace, Book II., chap. 2.