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Rambler 114 [Necessity of proportioning punishments to crimes]
by [?]

No. 114. Saturday, April 20, 1751.

Audi,
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.