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.
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