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 havoc 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, rò T☎V φοβερῶν φοβερώτατον, 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 terror 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.1

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, 1 "To unite the ideas of death and shame is not so easy as may be imagined; all ideas of the latter being absorbed by the former. To prove this, I will appeal to any man who hath seen an execution, or a procession to an execution; let him tell me when he hath be held a poor wretch bound in a cart, just on the verge of eternity, all pale and trembling with his approaching fate, whether the idea of shame hath ever intruded on his mind? No good mind can avoid compassionating a set of wretches who are put to death we know not why, unless, as it almost appears, to make a holiday for, and to entertain, the mob." - Fielding's Works, x. 462-3.

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 horrors 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 public 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 public, 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.

No. 121. TUESDAY, MAY 14, 1751.

O imitatores, servum pecus 1—HOR.2

Away, ye imitators, servile herd!-ELPHINSTON.

HAVE been informed by a letter from one of the universities, that among the youth from whom the next swarm of reasoners is to learn philosophy, and the next flight of beauties to hear elegies and sonnets, there are many, who, instead of endeavouring by books and meditation to form their own opinions, content themselves with the secondary knowledge which a convenient bench in a coffee

1 Johnson refers, I think, to the following passage in Utopia, in the chapter on slaves:-" For the most part, slavery is the punishment even of the greatest crimes; for as that is no less terrible to the criminals themselves than death, so they think the preserving them in a state of servitude is more for the interest of the commonwealth than killing them

But those who bear their punishment patiently, and are so much wrought on by that pressure that lies so hard on them that it appears they are really more troubled for the crimes they have committed than for the miseries they suffer, are not out of hope but that at last either the Prince will, by his prerogative, or the people by their intercession, restore them again to their liberty, or at least very much mitigate their slavery.'-Ideal Commonwealths, ed. by H. Morley, page 133.

2 Horace, 1 Epistles, xix. 19.