udi, Nulla umquum de morte hominis cunctatio longa est. JUV. Sat. vi. 220.
When man’s life is in debate,
The judge can ne’er too long deliberate. DRYDEN.
Power and superiority are so flattering and delightful, that, fraught with temptation, and exposed to danger, as they are, scarcely any virtue is so cautious, or any prudence so timorous, as to decline them. Even those that have most reverence for the laws of right, are pleased with shewing that not fear, but choice, regulates their behaviour; and would be thought to comply, rather than obey. We love to overlook the boundaries which we do not wish to pass; and, as the Roman satirist remarks, he that has no design to take the life of another, is yet glad to have it in his hands.
From the same principle, tending yet more to degeneracy and corruption, proceeds the desire of investing lawful authority with terrour, and governing by force rather than persuasion. Pride is unwilling to believe the necessity of assigning any other reason than her own will; and would rather maintain the most equitable claims by violence and penalties, than descend from the dignity of command to dispute and expostulation.
It may, I think, be suspected, that this political arrogance has sometimes found its way into legislative assemblies, and mingled with deliberations upon property and life. A slight perusal of the laws by which the measures of vindictive and coercive justice are established, will discover so many disproportions between crimes and punishments, such capricious distinctions of guilt, and such confusion of remissness and severity, as can scarcely be believed to have been produced by publick wisdom, sincerely and calmly studious of publick happiness.
The learned, the judicious, the pious Boerhaave relates, that he never saw a criminal dragged to execution without asking himself, “Who knows whether this man is not less culpable than me?” On the days when the prisons of this city are emptied into the grave, let every spectator of the dreadful procession put the same question to his own heart. Few among those that crowd in thousands to the legal massacre, and look with carelessness, perhaps with triumph, on the utmost exacerbations of human misery, would then be able to return without horrour and dejection. For, who can congratulate himself upon a life passed without some act more mischievous to the peace or prosperity of others, than the theft of a piece of money?
It has been always the practice, when any particular species of robbery becomes prevalent and common, to endeavour its suppression by capital denunciations. Thus one generation of malefactors is commonly cut off, and their successors are frighted into new expedients; the art of thievery is augmented with greater variety of fraud, and subtilized to higher degrees of dexterity, and more occult methods of conveyance. The law then renews the pursuit in the heat of anger, and overtakes the offender again with death. By this practice capital inflictions are multiplied, and crimes, very different in their degrees of enormity, are equally subjected to the severest punishment that man has the power of exercising upon man.
The lawgiver is undoubtedly allowed to estimate the malignity of an offence, not merely by the loss or pain which single acts may produce, but by the general alarm and anxiety arising from the fear of mischief, and insecurity of possession: he therefore exercises the right which societies are supposed to have over the lives of those that compose them, not simply to punish a transgression, but to maintain order, and preserve quiet; he enforces those laws with severity, that are most in danger of violation, as the commander of a garrison doubles the guard on that side which is threatened by the enemy.
This method has been long tried, but tried with so little success, that rapine and violence are hourly increasing, yet few seem willing to despair of its efficacy; and of those who employ their speculations upon the present corruption of the people, some propose the introduction of more horrid, lingering, and terrifick punishments; some are inclined to accelerate the executions; some to discourage pardons; and all seem to think that lenity has given confidence to wickedness, and that we can only be rescued from the talons of robbery by inflexible rigour, and sanguinary justice.
Yet, since the right of setting an uncertain and arbitrary value upon life has been disputed, and since experience of past times gives us little reason to hope that any reformation will be effected by a periodical havock of our fellow-beings, perhaps it will not be useless to consider what consequences might arise from relaxations of the law, and a more rational and equitable adaptation of penalties to offences.
Death is, as one of the ancients observes, [Greek: to ton phoberon phoberotaton], of dreadful things the most dreadful: an evil, beyond which nothing can be threatened by sublunary power, or feared from human enmity or vengeance. This terrour should, therefore, be reserved as the last resort of authority, as the strongest and most operative of prohibitory sanctions, and placed before the treasure of life, to guard from invasion what cannot be restored. To equal robbery with murder is to reduce murder to robbery; to confound in common minds the gradations of iniquity, and incite the commission of a greater crime to prevent the detection of a less. If only murder were punished with death, very few robbers would stain their hands in blood; but when, by the last act of cruelty, no new danger is incurred, and greater security may be obtained, upon what principle shall we bid them forbear?
It may be urged, that the sentence is often mitigated to simple robbery; but surely this is to confess that our laws are unreasonable in our own opinion; and, indeed, it may be observed, that all but murderers have, at their last hour, the common sensations of mankind pleading in their favour.
From this conviction of the inequality of the punishment to the offence, proceeds the frequent solicitation of pardons. They who would rejoice at the correction of a thief, are yet shocked at the thought of destroying him. His crime shrinks to nothing, compared with his misery; and severity defeats itself by exciting pity.
The gibbet, indeed, certainly disables those who die upon it from infesting the community; but their death seems not to contribute more to the reformation of their associates, than any other method of separation. A thief seldom passes much of his time in recollection or anticipation, but from robbery hastens to riot, and from riot to robbery; nor, when the grave closes on his companion, has any other care than to find another.
The frequency of capital punishments, therefore, rarely hinders the commission of a crime, but naturally and commonly prevents its detection, and is, if we proceed only upon prudential principles, chiefly for that reason to be avoided. Whatever may be urged by casuists or politicians, the greater part of mankind, as they can never think that to pick the pocket and to pierce the heart is equally criminal, will scarcely believe that two malefactors so different in guilt can be justly doomed to the same punishment: nor is the necessity of submitting the conscience to human laws so plainly evinced, so clearly stated, or so generally allowed, but that the pious, the tender, and the just, will always scruple to concur with the community in an act which their private judgment cannot approve.
He who knows not how often rigorous laws produce total impunity, and how many crimes are concealed and forgotten for fear of hurrying the offender to that state in which there is no repentance, has conversed very little with mankind. And whatever epithets of reproach or contempt this compassion may incur from those who confound cruelty with firmness, I know not whether any wise man would wish it less powerful, or less extensive.
If those whom the wisdom of our laws has condemned to die, had been detected in their rudiments of robbery, they might, by proper discipline and useful labour, have been disentangled from their habits, they might have escaped all the temptation to subsequent crimes, and passed their days in reparation and penitence; and detected they might all have been, had the prosecutors been certain that their lives would have been spared. I believe, every thief will confess, that he has been more than once seized and dismissed; and that he has sometimes ventured upon capital crimes, because he knew, that those whom he injured would rather connive at his escape, than cloud their minds with the horrours of his death.
All laws against wickedness are ineffectual, unless some will inform, and some will prosecute; but till we mitigate the penalties for mere violations of property, information will always be hated, and prosecution dreaded. The heart of a good man cannot but recoil at the thought of punishing a slight injury with death; especially when he remembers that the thief might have procured safety by another crime, from which he was restrained only by his remaining virtue.
The obligations to assist the exercise of publick justice are indeed strong; but they will certainly be overpowered by tenderness for life. What is punished with severity contrary to our ideas of adequate retribution, will be seldom discovered; and multitudes will be suffered to advance from crime to crime, till they deserve death, because, if they had been sooner prosecuted, they would have suffered death before they deserved it.
This scheme of invigorating the laws by relaxation, and extirpating wickedness by lenity, is so remote from common practice, that I might reasonably fear to expose it to the publick, could it be supported only by my own observations: I shall, therefore, by ascribing it to its author, Sir Thomas More, endeavour to procure it that attention, which I wish always paid to prudence, to justice, and to mercy.