TRANSACTIONS OF THE SECTIONS. 193 



often affixed to slij^ht violations of property a capital punishment. The number 

 not only of robberies but of tliefts, which were tlien capitally punishable, is almost 

 incredible to us of the present generation ; and can now excite only our horror and 

 amazement. I -vrould refer you hei'e to an admirable paper on tliis subject by 

 Johnson, being No. 114 of the ' Rambler/ which gives an account of the feelings 

 that then prevailed and the system that was followed. The paper, which is most 

 powerfully written, deserves peculiar praise, as being the commencement of those 

 humane and wise eftbrts for the amelioration of the penal law that were afterwards 

 renewed and brought to a successful issue by the perseverance of Romilly and the 

 practical sagacity of Peel. Dr. Johnson says : — " It has always been the practice, 

 when any particular species of robbery becomes prevalent and common, to endeavour 

 its suppression by capital denunciation. Thus one generation of malefactors is 

 commonly cut ofij and their successors are frightened into new expedients. The 

 art of thieviug is augmented with greater variety of fraud, and subtlised 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 oftender again with death. By 

 this practice, capital inflictions are multiplied, and crimes, very different in their 

 degrees of enormit}-, are equally subjected to the severest pimishment that man has 

 the power of exercising upon man." 



Now, in this state of things, there is little doubt that after every new application 

 of capital pimishment to a crime that did not previously infer it, there might be 

 a diminution of prosecutions on that head, and the public were thus, perhaps, led 

 to think that theft and rapine had in this way received a check. But experience 

 and reflection soon suggested another explanation, which is thus pointed out in the 

 paper I refer to: — "All laws against wickedness are ineffectual unless some will 

 inform and some will prosecute ; but till we mitigate the penalties for mere viola- 

 tions 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 wlicn he remembers that the thief might have procured 

 safety by another crime from which he was restrained only by his remaining virtue." 

 In connexion with this last consideration, Dr. Johnson had previously urged that 

 the terror of death "should 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 grada- 

 tions of iniquity, and incite the commission of a greater crime to prevent the de- 

 tection of a less. If only murder were punished by death, very few robbers would 

 stain their hands with 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? " This remarkable paper, written, be it observed, in the year 1751, 

 concludes with the following characteristic sentences : — " This scheme of invigora- 

 ting the laws by relaxation, and extirpating wickedness by lenity, is so remote from 

 common pi-actice, 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 

 the author, Sir Thomas More, endeavour to procure it that attention which I wish 

 always paid to prudence, to justice, and to mercy." We may thus see how mere 

 numerical statistics in such questions may speak an ambiguous language, and that 

 the paucitv of prosecutions may be a proof, not of the wisdom, but of the incfficacy 

 of our legislation ; for while it is doubtful how far criminals, or at least habitual 

 criminals, are deterred by capital puuishraent, which they come to look upon as the 

 fortune of war, there is no doubt that undue severity disinclines injured parties 

 from taking steps to bring down on the delinquent what is considered as an exor- 

 bitant penalty. I may here, perhaps, suggest a question whether our country of 

 Scotland was" not saved fi-om such evils partly by the institution of a public prose- 

 cutor, and partly by the anomalous, but convenient power which he possessed of 

 restricting the pains of law, when they were capital, to an arbitrary punishment — 

 a resource which was likely to render juries less unwilling to convict than they 

 might otherwise have been. I should mention that a protest against the severity 

 of the penal laws as to property was uttered by an earlier opponent of the system, 

 though one not so disinterested as Dr. Johnson : I mean the widovv^ of the freebooter 

 1871. 13 



