38. “Let us see, further, what common right there appertains to men in those things which have already become the property of individuals. Some persons, perchance, may consider it strange to question this, as proprietorship seems to have absorbed all that right which arose out of a state of things in common. But it is not so. For, it is to be considered, what was the intention of those who first introduced private property, which we may suppose to have been such, as to deviate as little as possible from natural equity. For if even written laws are to be construed in that sense, as far as it is practicable, much more so are customs, which are not fettered by the chains of writers.—Hence it follows, first, that, in case of extreme necessity, the pristine right of using things revives, as much as if they had remained in common; because, in all human laws, as well as in the law of private property, this case of extreme necessity appears to have been excepted.—So, if the means of sustenance, as in case of a sea-voyage, should chance to fail, that which any individual may have, should be shared in common. And thus, a fire having broken out, I am justified in destroying the house of my neighbour, in order to preserve my own house; and I may cut in two the ropes or cords amongst which any ship is driven, if it cannot be otherwise disentangled. All which exceptions are not made in the written law, but are presumed.—For the opinion has been acknowledged amongst Divines, that, if any one, in such case of necessity, take from another person what is requisite for the preservation of his life, he does not commit a theft. The meaning of which definition is not, as many contend, that the proprietor of the thing be bound to give to the needy upon the principle of charity; but, that all things distinctly vested in proprietors ought to be regarded as such with a certain benign acknowledgment of the primitive right. For if the original distributors of things were questioned, as to what they thought about this matter, they would reply what I have said. Necessity, says Father Seneca, the great excuse for human weakness, breaks every law; that is to say, human law, or law made after the manner of man.”
39. “But cautions ought to be had, for fear this license should be abused: of which the principal is, to try, in every way, whether the necessity can be avoided by any other means; for instance, by making application to the magistrate, or even by trying whether the use of the thing can, by entreaties, be obtained from the proprietor. Plato permits water to be fetched from the well of a neighbour upon this condition alone, that the person asking for such permission shall dig in his own well in search of water as far as the chalk: and Solon, that he shall dig in his own well as far as forty cubits. Upon which Plutarch adds, that he judged that necessity was to be relieved, not laziness to be encouraged.”
40. Such is the doctrine of this celebrated civilian. Let us now hear Puffendorf; and you will please to bear in mind, that both these writers are of the greatest authority upon all subjects connected with the laws of nature and of nations. We read in their works the result of an age of study: they have been two of the great guides of mankind ever since they wrote: and, we are not to throw them aside, in order to listen exclusively to Parson Hay, to Hulton of Hulton, or to Nicholas Grimshaw. They tell us what they, and what other wise men, deemed to be right; and, as we shall by and by see, the laws of England, so justly boasted of by our ancestors, hold precisely the same language with these celebrated men. After the following passage from Puffendorf, I shall show you what our own lawyers say upon the subject; but I request you to read the following passage with the greatest attention.
41. “Let us inquire, in the next place, whether the necessity of preserving our life can give us any right over other men’s goods, so as to make it allowable for us to seize on them for our relief, either secretly, or by open force, against the owner’s consent. For the more clear and solid determination of which point, we think it necessary to hint in short on the causes upon which distinct properties were first introduced in the world; designing to examine them more at large in their proper place. Now the main reasons on which properties are founded, we take to be these two; that the feuds and quarrels might be appeased which arose in the primitive communion of things, and that men might be put under a kind of necessity of being industrious, every one being to get his maintenance by his own application and labour. This division, therefore, of goods, was not made, that every person should sit idly brooding over the share of wealth he had got, without assisting or serving his fellows; but that any one might dispose of his things how he pleased; and if he thought fit to communicate them to others, he might, at least, be thus furnished with an opportunity of laying obligations on the rest of mankind. Hence, when properties were once established, men obtained a power, not only of exercising commerce to their mutual advantage and gain, but likewise of dispensing more largely in the works of humanity and beneficence; whence their diligence had procured them a greater share of goods than others: whereas before, when all things lay in common, men could lend one another no assistance but what was supplied by their corporeal ability, and could be charitable of nothing but of their strength. Further, such is the force of property, that the proprietor hath a right of delivering his goods with his own hands; even such as he is obliged to give to others. Whence it follows, that when one man has anything owing from another, he is not presently to seize on it at a venture, but ought to apply himself to the owner, desiring to receive it from his disposal. Yet in case the other party refuse thus to make good his obligation, the power and privilege of property doth not reach so far as that the things may not be taken away without the owner’s consent, either by the authority of the magistrate in civil communities, or in a state of nature, by violence and hostile force. And though in regard to bare Natural Right, for a man to relieve another in extremity with his goods, for which he himself hath not so much occasion, be a duty obliging only imperfectly, and not in the manner of a debt, since it arises wholly from the virtue of humanity; yet there seems to be no reason why, by the additional force of a civil ordinance, it may not be turned into a strict and perfect obligation. And this Seldon observes to have been done among the Jews; who, upon a man’s refusing to give such alms as were proper for him, could force him to it by an action at law. It is no wonder, therefore, that they should forbid their poor, on any account, to seize on the goods of others, enjoining them to take only what private persons, or the public officers, or stewards of alms, should give them on their petition. Whence the stealing of what was another’s, though upon extreme necessity, passed in that state for theft or rapine. But now supposing under another government the like good provision is not made for persons in want, supposing likewise that the covetous temper of men of substance cannot be prevailed on to give relief, and that the needy creature is not able, either by his work or service, or by making sale of anything that he possesses, to assist his present necessity, must he, therefore, perish with famine? Or can any human institution bind me with such a force that, in case another man neglects his duty towards me, I must rather die, than recede a little from the ordinary and regular way of acting? We conceive, therefore, that such a person doth not contract the guilt of theft, who happening, not through his own fault, to be in extreme want, either of necessary food, or of clothes to preserve him from the violence of the weather, and cannot obtain them from the voluntary gift of the rich, either by urgent entreaties, or by offering somewhat equivalent in price, or by engaging to work it out, shall either forcibly or privily relieve himself out of their abundance; especially if he do it with full intention to pay the value of them whenever his better fortune gives him ability. Some men deny that such a case of necessity, as we speak of, can possibly happen. But what if a man should wander in a foreign land, unknown, friendless, and in want, spoiled of all he had by shipwreck, or by robbers, or having lost by some casualty whatever he was worth in his own country; should none be found willing either to relieve his distress, or to hire his service, or should they rather (as it commonly happens,) seeing him in a good garb, suspect him to beg without reason, must the poor creature starve in this miserable condition?”
42. Many other great foreign authorities might be referred to, and I cannot help mentioning Covarruvius, who is spoken of by Judge Hale, and who expresses himself upon the subject in these words: “The reason why a man in extreme necessity may, without incurring the guilt of theft or rapine, forcibly take the goods of others for his present relief, is because his condition renders all things common. For it is the ordinance and institution of nature itself, that inferior things should be designed and directed to serve the necessities of men. Wherefore the division of goods afterwards introduced into the world doth not derogate from that precept of natural reason, which Suggests, that the extreme wants of mankind may be in any manner removed by the use of temporal possessions.” Puffendorf tells us, that Peresius maintains, that, in case of extreme necessity, a man is compelled to the action, by a force which he cannot resist; and then, that the owner’s consent may be presumed on, because humanity obliges him to succour those who are in distress. The same writer cites a passage from St. Ambrose, one of the Fathers of the church, which alleges that (in case of refusing to give to persons in extreme necessity) it is the person who retains the goods who is guilty of the act of wrong doing, for St. Ambrose says; “it is the bread of the hungry which you detain; it is the raiment of the naked which you lock up.”
43. Before I come to the English authorities on the same side, let me again notice the foul dealing of Blackstone; let me point out another instance or two of the insincerity of this English court-sycophant, who was, let it be noted, Solicitor-general to the queen of the “good old King.” You have seen, in paragraph 28, a most flagrant instance of his perversion of the Scriptures. He garbles the word of God, and prefaces the garbling by calling it a thing “certified by King Solomon himself;” and this word certified he makes use of just when he is about to begin the scandalous falsification of the text which he is referring to. Never was anything more base. But, the whole extent of the baseness we have not yet seen; for, Blackstone had read Hale, who had quoted the two verses fairly; but besides this, he had read Puffendorf, who had noticed very fully this text of Scripture, and who had shown very clearly that it did not at all make in favour of the doctrine of Blackstone. Blackstone ought to have given the argument of Puffendorf; he ought to have given the whole of his argument; but particularly he ought to have given this explanation of the passage in the Proverbs, which explanation I have inserted in paragraph 27. It was also the height of insincerity in Blackstone, to pretend that the passage from Cicero had anything at all to do with the matter. He knew well that it had not; he knew that Cicero contemplated no case of extreme necessity for want of food or clothing; but, he had read Puffendorf, and Puffendorf had told him, that Cicero’s was a question of the mere conveniences and inconveniences of life in general; and not a question of pinching hunger or shivering nakedness. Blackstone had seen his fallacy exposed by Puffendorf; he had seen the misapplication of this passage of Cicero fully exposed by Puffendorf; and yet the base court-sycophant trumped it up again, without mentioning Puffendorf’s exposure of the fallacy! In short this Blackstone, upon this occasion, as upon almost all others, has gone all lengths; has set detection and reproof at defiance, for the sake of making his court to the government by inculcating harshness in the application of the law, and by giving to the law such an interpretation as would naturally tend to justify that harshness.
44. Let us now cast away from us this insincere sycophant, and turn to other law authorities of our own country. The Mirrour of Justices, (quoted by me in paragraph 14,) Chap. 4, Section 16, on the subject of arrest of judgment of death, has this passage. Judgment is to be staid in seven cases here specified: and the seventh is this: “in POVERTY, in which case you are to distinguish of the poverty of the offender, or of things; for if poor people, to avoid famine, take victuals to sustain their lives, or clothes that they die not of cold, (so that they perish if they keep not themselves from cold,) they are not to be adjudged to death, if it were not in their power to have bought their victuals or clothes; for as much as they are warranted so to do by the law of nature.” Now, my friends, you will observe, that I take this from a book which may almost be called the BIBLE of the law. There is no lawyer who will deny the goodness of this authority; or who will attempt to say that this was not always the law of England.
45. Our next authority is one quite as authentic, and almost as ancient. The book goes by the name of Britton, which was the name of a Bishop of Hereford, who edited it, in the famous reign of Edward the first. The book does, in fact, contain the laws of the kingdom as they existed at that time. It may be called the record of the laws of Edward the First. It begins thus, “Edward by the grace of God, King of England and Lord of Ireland, to all his liege subjects, peace, and grace of salvation.” The preamble goes on to state, that people cannot be happy without good laws; that even good laws are of no use unless they be known and understood; and that, therefore, the king has ordered the laws of England thus to be written and recorded. This book is very well known to be of the greatest authority, amongst lawyers, and in Chap. 10 of this book, in which the law describes what constitutes a BURGLAR, or house-breaker, and the punishment that he shall suffer (which is that of death,) there is this passage: “Those are to be deemed burglars who feloniously, in time of peace, break into churches or houses, or through walls or doors of our cities, or our boroughs; with exception of children under age, and of poor people who for hunger, enter to take any sort of victuals of less value than twelve pence; and except idiots and mad people, and others that cannot commit felony.” Thus, you see, this agrees with the Mirrour of Justices, and with all that we have read before from these numerous high authorities. But this, taken in its full latitude, goes a great length indeed; for a burglar is a breaker-in by night. So that this is not only a taking; but a breaking into a house in order to take! And observe, it is taking to the value of twelve pence; and twelve pence then was the price of a couple of sheep, and of fine fat sheep too; nay, twelve pence was the price of an ox, in this very reign of Edward the First. So that, a hungry man might have a pretty good belly-full in those days without running the risk of punishment. Observe, by-the-by, how time has hardened the law. We are told of the dark ages, of the barbarous customs, of our forefathers: and we have a Sir James Mackintosh to receive and to present petitions innumerable, from the most tender hearted creatures in the world, about “softening the criminal code;” but, not a word do they ever say about a softening of this law, which now hangs a man for stealing the value of a RABBIT, and which formerly did not hang him till he stole the value of an OX! Curious enough, but still more scandalous, that we should have the impudence to talk of our humanity, and our civilization, and of the barbarousness of our forefathers. But, if a part of the ancient law remain, shall not the whole of it remain? If we hang the thief, still hang the thief for stealing to the value of twelve pence; though the twelve pence now represents a rabbit instead of an ox; if we still do this, would Blackstone take away the benefit of the ancient law from the starving man? The passage that I have quoted is of such great importance as to this question, that I think it necessary to add, here, a copy of the original, which is in the old Norman-French, of which I give the translation above. “Sunt tenus burgessours trestous ceux, que felonisement en temps de pees debrusent esglises ou auter mesons, ou murs, ou portes de nos cytes, ou de nos burghes; hors pris enfauntz dedans age, et poures, que, pur feyn, entrêt pur ascun vitaille de meindre value q’de xii deners, et hors pris fous nastres, et gens arrages, et autres que seuent nule felonie faire.”
46. After this, lawyers, at any rate, will not attempt to gainsay. If there should, however, remain any one to affect to doubt of the soundness of this doctrine, let them take the following from him who is always called the “pride of philosophy,” the “pride of English learning,” and whom the poet Pope calls “greatest and wisest of mankind.” It is Lord Bacon of whom I am speaking. He was Lord High Chancellor in the reign of James the First; and, let it be observed, that he wrote those “law tracts,” from which I am about to quote, long after the present poor-laws had been established. He says (Law Tracts, page 55,) “The law chargeth no man with default where the act is compulsory and not voluntary, and where there is not consent and election; and, therefore, if either there be an impossibility for a man to do otherwise, or so great a perturbation of the judgment and reason, as in presumption of law a man’s nature cannot overcome, such necessity carrieth a privilege in itself.—Necessity is of three sorts: necessity of conservation of life; necessity of obedience; and necessity of the act of God or of a stranger.—First, of conservation of life; if a man steal viands (victuals) to satisfy his present hunger, this is no felony nor larceny.”
47. If any man want more authority, his heart must be hard indeed; he must have an uncommonly anxious desire to take away by the halter the life that sought to preserve itself against hunger. But, after all, what need had we of any authorities? What need had we even of reason upon the subject? Who is there upon the face of the earth, except the monsters that come from across the channel of St. George; who is there upon the face of the earth, except those monsters, that have the brass, the hard hearts and the brazen faces, which enable them coolly to talk of the “MERIT” of the degraded creatures, who, amidst an abundance of food, amidst a “superabundance of food,” lie quietly down and receive the extreme unction, and expire with hunger? Who, upon the face of the whole earth, except these monsters, these ruffians by way of excellence; who, except these, the most insolent and hard-hearted ruffians that ever lived, will contend, or will dare to think, that there ought to be any force under heaven to compel a man to lie down at the door of a baker’s and butcher’s shop, and expire with hunger! The very nature of man makes him shudder at the thought. There want no authorities; no appeal to law books; no arguments; no questions of right or wrong: that same human nature that tells me that I am not to cut my neighbour’s throat, and drink his blood, tells me that I am not to make him die at my feet by keeping from him food or raiment of which I have more than I want for my own preservation.