ONE:It certainly should moderate our reverence for ancestral wisdom to find even a man like Fielding, the novelist, speaking, in his Charge to the Grand Jury of Middlesex, of the pillory and the loss of a mans ears as an extremely mild punishment for a bad case of libel, or declaring our punishments of that time to be the mildest and most void of terror of any other in the known world. Yet Fielding recognised several of the true principles of punishment. He attributed the increase of crime to the great abuse of pardons, which, he said, had brought many more men to the gallows than they had saved from it. He also advocated the diminution of the number of executions, their greater privacy and solemnity, whilst he recommended their following as closely as possible on conviction, that pity for the criminal might be lost in detestation for his crime.[33]Neither the noble nor the rich man ought to be able to pay a price for injuries committed against the feeble and the poor; else riches, which, under the[206] protection of the laws, are the prize of industry, become the nourishment of tyranny. Whenever the laws suffer a man in certain cases to cease to be a person and to become a thing, there is no liberty; for then you will see the man of power devoting all his industry to gather from the numberless combinations of civil life those which the law grants in his favour. This discovery is the magic secret that changes citizens into beasts of burden, and in the hand of the strong man forms the chain wherewith to fetter the actions of the imprudent and the weak. This is the reason why in some governments, that have all the semblance of liberty, tyranny lies hidden or insinuates itself unforeseen, in some corner neglected by the legislator, where insensibly it gains force and grows.
FORE:
FORE:We shall see, if we open histories, that laws, which[118] are or ought to be covenants between free men, have generally been nothing but the instrument of the passions of some few men, or the result of some accidental and temporary necessity. They have never been dictated by an unimpassioned student of human nature, able to concentrate the actions of a multitude of men to a single point of view, and to consider them from that point alonethe greatest happiness divided among the greatest number. Happy are those few nations which have not waited for the slow movement of human combinations and changes to cause an approach to better things, after intolerable evils, but have hastened the intermediate steps by good laws; and deserving is that philosopher of the gratitude of mankind, who had the courage, from the obscurity of his despised study, to scatter abroad among the people the first seeds, so long fruitless, of useful truths.If pleasure and pain are the motors of sensitive beings, if the invisible lawgiver of humanity has decreed rewards and punishments as one of the motives to impel men to even their noblest endeavours, the inexact distribution of these motives will give rise to that contradiction, as little noticed as it is of common occurrence, namely, that the laws punish crimes which are entirely of their own creation. If an equal penalty is attached to two crimes of unequal injury to society, the greater crime of the two, if it promise a greater advantage than the other, will have no stronger motive in restraint of its perpetration.[197] Whoever, for example, sees the same punishment of death decreed for the man who kills a pheasant and the man who slays his fellow or falsifies an important document, will draw no distinction between such crimes; and thus moral sentiments, the product only of many ages and of much bloodshed, the slowest and most difficult attainment of the human mind, dependent, it has been thought, on the aid of the most sublime motives and on a parade of the gravest formalities, will be destroyed and lost.
