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.[c]
No. 115. TUESDAY, APRIL 23, 1751.
Quaedam parvu quidem; sed non toleranda maritis. JUV. Sat vi. 184.
Some faults, though small, intolerable grow. DRYDEN.