An Enquiry into the Causes of the late Increase of Robbers/Section 10

by Henry Fielding

SECT. X.

Of the Encouragement given to Robbers by frequent Pardons.

I Come now to the sixth Encouragement to Felons, from the Hopes of a Pardon, at least with the Condition of Transportation.

This, I am aware, is too tender a Subject to speak to. To pardon all Crimes where the Prosecution is in his Name, is an undoubted Prerogative of the King. I may add, it is his most amiable Prerogative, and that which as Livy observes^[1], renders Kingly Government most dear to the People: For in a Republic there is no such Power. I may add farther, that it seems to our excellent Sovereign to be the most favourite Part of his Prerogative, as it is the only one which hat been carried to its utmost Extent in the present Reign.

Here therefore I beg to direct myself only to those Persons who are within the Reach of his Majesty's sacred Ear. Such Persons will, I hope, weigh well what I have said already on the Subject of false Compassion, all which is applicable on the present Occasion: And since our King (as was with less Truth said of another^[2]) is of all Men the truest Image of his Maker in Mercy, I hope too much Good-nature will transport no Nobleman so far as it once did a Clergyman in Scotland, who in the Fervour of his Benevolence prayed to God that he would graciously be pleased to pardon the poor Devil.

To speak out fairly and honestly, tho' Mercy may appear more amiable in a Magistrate, Severity is a more wholesome Virtue; nay Severity to an Individual may, perhaps, be in the End the greatest Mercy, not only to the Public in general, for the Reason given above; but to many Individuals for the Reasons to be presently assigned.

To consider a human Being in the Dread of a sudden and violent Death; to consider that his Life or Death depend on your Will; to reject the Arguments which a good Mind will officiously advance to itself; that violent Temptations, Necessity, Youth, Inadvertency have hurried him to the Commission of a Crime which hath been attended with no Inhumanity; to resist the Importunities, Cries, and Tears of a tender Wife, and affectionate Children, who, tho' innocent, are to be reduced to Misery and Ruin by a strict adherence to Justice. These all together form an Object which whoever can look upon without Emotion, must have a very bad Mind; and whoever by the Force of Reason can conquer that Emotion must have a very strong one.

And what can Reason suggest on this Occasion? First that by saving this Individual, I shall bring many others into the same dreadful Situation. That the Passions of the Man are to give Way to the Principles of the Magistrate. Those may lament the Criminal, but these must condemn him. It was nobly said by Bias to one who admired at his shedding Tears whilst he past Sentence of Death, 'Nature exacts my Tenderness, but the Law my Rigour.' The elder Brutus^[3], is a worthy Pattern of this Maxim; an Example, says Machiavel, most worthy of being transmitted to Posterity. And Dionysius Halicarnasseus^[4] calls it a great and Wonderful Action, of which the Romans were proud in the most extraordinary Degree. Whoever derives it therefore from the Want of humane and paternal Affections is unjust; no Instances of his Inhumanity are recorded. 'But the Severity, says Machiavel, was not only profitable but necessary;' and why? Because a single Pardon granted ex mera Gratia & Favore, is a Link broken in the Chain of Justice, and takes away the Concatenation and Strength of the whole. The Danger and Certainty of Destruction are very different Objects, and strike the Mind with different Degrees of Force. It is of the very Nature of Hope to be sanguine, and it will derive more Encouragement from one Pardon, than Diffidence from twenty Executions.

It is finely observed by Thucydides^[5], 'that though civil Societies have allotted the Punishment of Death to many Crimes, and to some of the inferior Sort, yet Hope inspires Men to face the Danger; and no Man ever came to a dreadful End, who had not a lively Expectation of surviving his wicked Machinations.' Nothing certainly can more contribute to the raising this Hope than repeated Examples of ill grounded Clemency: For as Seneca says, Ex Clementia omnes idem sperant^[6].

Now what is the principal End of all Punishment: Is it not as Lord^[7] Hale expresses it, 'to deter Men from the Breach of Laws, so that they may not offend, so not suffer at all? And is not the inflicting of Punishment more for Example, and to prevent Evil, than to punish?' And therefore, says he, presently afterwards, 'Death itself is necessary to be annexed to Laws in many Cases by the Prudence of Law-givers, though possibly beyond the single Merit of the Offence simply considered.' No Man indeed of common Humanity or common Sense can think the Life of a Man and a few Shillings to be of an equal Consideration, or that the Law in punishing Theft with Death proceeds (as perhaps a private Person sometimes may) with any View to Vengeance. The Terror of the Example is the only Thing proposed, and one Man is sacrificed to the Preservation of Thousands.

If therefore the Terror of this Example is removed (as it certainly is by frequent Pardons) the Design of the Law is rendered totally ineffectual; The Lives of the Persons executed are thrown away, and sacrificed rather to the Vengeance than to the Good of the Public, which receives no other Advantage than by getting rid of a Thief, whose Place will immediately be supplied by another. Here then we may cry out with the^[8] Poet:

——————Sævior Ense
Parcendi Rabies——————

This I am confident may be asserted, that Pardons have brought many more Men to the Gallows than they have saved from it. So true is that Sentiment of Machiavel, That Examples of Justice are more merciful than the unbounded Exercise of Pity^[9].

Notes

1. Dec. 1. l. 2. cap. 3. Effe Gratiæ Locum effe Beneficii; & irasci et ignoscere posse (Regem scilicet) inter amicum atque inimicum Discrimen nosse, Legem rem surdam inexorabilem esse, &c.
2. By Dryden of Charles II.
3. He put his two Sons to Death for conspiring with Tarquin.
    
   Neither Livy nor Dionysius give any Character of Cruelty to Brutus; indeed the latter tells us, that he was superior to all those Passions which disturb Human Reason. τῶν ἐπιταραττόντων τοὺς λογισμοὺς παθῶν καρτερός.
4. Page 272. Edit. Hudson.
5. P. 174. Edit. Hudson.
6. De Clementia, lib. 1. c. 1.
7. Hale's Hist. v. 1. p. 13.
8. Claudian.
9. In his Prince.