admit of it. But, Raphael,’ said he to
me, ’I would gladly know upon what reason it
is that you think theft ought not to be punished by
death: would you give way to it? or do you propose
any other punishment that will be more useful to the
public? for, since death does not restrain theft,
if men thought their lives would be safe, what fear
or force could restrain ill men? On the contrary,
they would look on the mitigation of the punishment
as an invitation to commit more crimes.’
I answered, ’It seems to me a very unjust thing
to take away a man’s life for a little money,
for nothing in the world can be of equal value with
a man’s life: and if it be said, “that
it is not for the money that one suffers, but for
his breaking the law,” I must say, extreme justice
is an extreme injury: for we ought not to approve
of those terrible laws that make the smallest offences
capital, nor of that opinion of the Stoics that makes
all crimes equal; as if there were no difference to
be made between the killing a man and the taking his
purse, between which, if we examine things impartially,
there is no likeness nor proportion. God has
commanded us not to kill, and shall we kill so easily
for a little money? But if one shall say, that
by that law we are only forbid to kill any except
when the laws of the land allow of it, upon the same
grounds, laws may be made, in some cases, to allow
of adultery and perjury: for God having taken
from us the right of disposing either of our own or
of other people’s lives, if it is pretended
that the mutual consent of men in making laws can
authorise man-slaughter in cases in which God has given
us no example, that it frees people from the obligation
of the divine law, and so makes murder a lawful action,
what is this, but to give a preference to human laws
before the divine? and, if this is once admitted,
by the same rule men may, in all other things, put
what restrictions they please upon the laws of God.
If, by the Mosaical law, though it was rough and
severe, as being a yoke laid on an obstinate and servile
nation, men were only fined, and not put to death for
theft, we cannot imagine, that in this new law of
mercy, in which God treats us with the tenderness
of a father, He has given us a greater licence to
cruelty than He did to the Jews. Upon these reasons
it is, that I think putting thieves to death is not
lawful; and it is plain and obvious that it is absurd
and of ill consequence to the commonwealth that a thief
and a murderer should be equally punished; for if
a robber sees that his danger is the same if he is
convicted of theft as if he were guilty of murder,
this will naturally incite him to kill the person whom
otherwise he would only have robbed; since, if the
punishment is the same, there is more security, and
less danger of discovery, when he that can best make
it is put out of the way; so that terrifying thieves
too much provokes them to cruelty.