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.

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 havock 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, [Greek: to ton phoberon phoberotaton], 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 terrour 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.

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.

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 horrours 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 publick 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 publick, 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.³

No. 115. TUESDAY, APRIL 23, 1751

Quaedam parvu quidem; sed non toleranda maritis. JUV. Sat vi. 184.

Some faults, though small, intolerable grow. DRYDEN.

TO THE RAMBLER.

SIR,

I sit down, in pursuance of my late engagement, to recount the remaining part of the adventures that befel me in my long quest of conjugal felicity, which, though I have not yet been so happy as to obtain it, I have at least endeavoured to deserve by unwearied diligence, without suffering from repeated disappointments any abatement of my hope, or repression of my activity.

You must have observed in the world a species of mortals who employ themselves in promoting matrimony, and without any visible motive of interest or vanity, without any discoverable impulse of malice or benevolence, without any reason, but that they want objects of attention and topicks of conversation, are incessantly busy in procuring wives and husbands. They fill the ears of every single man and woman with some convenient match; and when they are informed of your age and fortune, offer a partner for life with the same readiness, and the same indifference, as a salesman, when he has taken measure by his eye, fits his customer with a coat.

It might be expected that they should soon be discouraged from this officious interposition by resentment or contempt; and that every man should determine the choice on which so much of his happiness must depend, by his own judgment and observation: yet it happens, that as these proposals are generally made with a shew of kindness, they seldom provoke anger, but are at worst heard with patience, and forgotten. They influence weak minds to approbation; for many are sure to find in a new acquaintance, whatever qualities report has taught them to expect; and in more powerful and active understandings they excite curiosity, and sometimes, by a lucky chance, bring persons of similar tempers within the attraction of each other.

I was known to possess a fortune, and to want a wife; and therefore was frequently attended by these hymeneal solicitors, with whose importunity I was sometimes diverted, and sometimes perplexed; for they contended for me as vultures for a carcase; each employing all his eloquence, and all his artifices, to enforce and promote his own scheme, from the success of which he was to receive no other advantage than the pleasure of defeating others equally eager, and equally industrious.

An invitation to sup with one of those busy friends, made me, by a concerted chance, acquainted with Camilla, by whom it was expected that I should be suddenly and irresistibly enslaved. The lady, whom the same kindness had brought without her own concurrence into the lists of love, seemed to think me at least worthy of the honour of captivity; and exerted the power, both of her eyes and wit, with so much art and spirit, that though I had been too often deceived by appearances to devote myself irrevocably at the first interview, yet I could not suppress some raptures of admiration, and flutters of desire. I was easily persuaded to make nearer approaches; but soon discovered, that an union with Camilla was not much to be wished. Camilla professed a boundless contempt for the folly, levity, ignorance, and impertinence of her own sex; and very frequently expressed her wonder that men of learning or experience could submit to trifle away life with beings incapable of solid thought. In mixed companies, she always associated with the men, and declared her satisfaction when the ladies retired. If any short excursion into the country was proposed, she commonly insisted upon the exclusion of women from the party; because, where they were admitted, the time was wasted in frothy compliments, weak indulgences, and idle ceremonies. To shew the greatness of her mind, she avoided all compliance with the fashion; and to boast the profundity of her knowledge, mistook the various textures of silk, confounded tabbies with damasks, and sent for ribands by wrong names. She despised the commerce of stated visits, a farce of empty form without instruction; and congratulated herself, that she never learned to write message cards. She often applauded the noble sentiment of Plato, who rejoiced that he was born a man rather than a woman; proclaimed her approbation of Swift's opinion, that women are only a higher species of monkeys; and confessed, that when she considered the behaviour, or heard the conversation, of her sex, she could not but forgive the Turks for suspecting them to want souls.

It was the joy and pride of Camilla to have provoked, by this insolence, all the rage of hatred, and all the persecutions of calumny; nor was she ever more elevated with her own superiority, than when she talked of female anger, and female cunning. Well, says she, has nature provided that such virulence should be disabled by folly, and such cruelty be restrained by impotence.

Camilla doubtless expected, that what she lost on one side, she should gain on the other; and imagined that every male heart would be open to a lady, who made such generous advances to the borders of virility. But man, ungrateful man, instead of springing forward to meet her, shrunk back at her approach. She was persecuted by the ladies as a deserter, and at best received by the men only as a fugitive. I, for my part, amused myself awhile with her fopperies, but novelty soon gave way to detestation, for nothing out of the common order of nature can be long borne. I had no inclination to a wife who had the ruggedness of a man without his force, and the ignorance of a woman without her softness; nor could I think my quiet and honour to be entrusted to such audacious virtue as was hourly courting danger, and soliciting assault.

My next mistress was Nitella, a lady of gentle mien, and soft voice, always speaking to approve, and ready to receive direction from those with whom chance had brought her into company. In Nitella I promised myself an easy friend, with whom I might loiter away the day without disturbance or altercation. I therefore soon resolved to address her, but was discouraged from prosecuting my courtship, by observing, that her apartments were superstitiously regular; and that, unless she had notice of my visit, she was never to be seen. There is a kind of anxious cleanliness which I have always noted as the characteristick of a slattern; it is the superfluous scrupulosity of guilt, dreading discovery, and shunning suspicion: it is the violence of an effort against habit, which, being impelled by external motives, cannot stop at the middle point.

Nitella was always tricked out rather with nicety than elegance; and seldom could forbear to discover, by her uneasiness and constraint, that her attention was burdened, and her imagination engrossed: I therefore concluded, that being only occasionally and ambitiously dressed, she was not familiarized to her own ornaments. There are so many competitors for the fame of cleanliness, that it is not hard to gain information of those that fail, from those that desire to excel: I quickly found that Nitella passed her time between finery and dirt; and was always in a wrapper, night-cap, and slippers, when she was not decorated for immediate show.

I was then led by my evil destiny to Charybdis, who never neglected an opportunity of seizing a new prey when it came within her reach. I thought myself quickly made happy by permission to attend her to publick places; and pleased my own vanity with imagining the envy which I should raise in a thousand hearts, by appearing as the acknowledged favourite of Charybdis. She soon after hinted her intention to take a ramble for a fortnight, into a part of the kingdom which she had never seen. I solicited the happiness of accompanying her, which, after a short reluctance, was indulged me. She had no other curiosity on her journey, than after all possible means of expense; and was every moment taking occasion to mention some delicacy, which I knew it my duty upon such notices to procure.

After our return, being now more familiar, she told me, whenever we met, of some new diversion; at night she had notice of a charming company that would breakfast in the gardens; and in the morning had been informed of some new song in the opera, some new dress at the playhouse, or some performer at a concert whom she longed to hear. Her intelligence was such, that there never was a show, to which she did not summon me on the second day; and as she hated a crowd, and could not go alone, I was obliged to attend at some intermediate hour, and pay the price of a whole company. When we passed the streets, she was often charmed with some trinket in the toy-shops; and from moderate desires of seals and snuff-boxes, rose, by degrees, to gold and diamonds. I now began to find the smile of Charybdis too costly for a private purse, and added one more to six and forty lovers, whose fortune and patience her rapacity had exhausted.

Imperia then took possession of my affections; but kept them only for a short time. She had newly inherited a large fortune, and having spent the early part of her life in the perusal of romances, brought with her into the gay world all the pride of Cleopatra; expected nothing less than vows, altars, and sacrifices; and thought her charms dishonoured, and her power infringed, by the softest opposition to her sentiments, or the smallest transgression of her commands. Time might indeed cure this species of pride in a mind not naturally undiscerning, and vitiated only by false representations; but the operations of time are slow; and I therefore left her to grow wise at leisure, or to continue in errour at her own expense.

Thus I have hitherto, in spite of myself, passed my life in frozen celibacy. My friends, indeed, often tell me, that I flatter my imagination with higher hopes than human nature can gratify; that I dress up an ideal charmer in all the radiance of perfection, and then enter the world to look for the same excellence in corporeal beauty. But surely, Mr. Rambler, it is not madness to hope for some terrestrial lady unstained by the spots which I have been describing; at least I am resolved to pursue my search; for I am so far from thinking meanly of marriage, that I believe it able to afford the highest happiness decreed to our present state; and if, after all these miscarriages, I find a woman that fills up my expectation, you shall hear once more from,

Yours, &c.

HYMENAEUS.

3. The arguments of the revered Sir Samuel Romilly on Criminal Law, have almost been anticipated in this luminous paper, which would have gained praise even for a legislator. On the correction of our English Criminal Code, see Mr. Buxton's speech in the House of Commons, 1820. It is a fund of practical information, and, apart from its own merits, will repay perusal by the valuable collection of opinions which it contains on this momentous and interesting subject. ED.