to the learning of their colleagues, the appeal to the house of lords becomes in fact an appeal to the col. lected wisdom of our fupreme courts of juftice: ceiving indeed folemnity, but little perhaps of direc tion, from the prefence of the affembly in which it is heard and determined.

Thefe, however, even if real, are minute imperfections. A politician, who fhould fit down to delincate a plan for the difpenfation of public juftice, guarded against all access to influence and corruption, and bringing together the feparate advantages of knowledge, and impartiality, would find, when he had done, that he had been tranfcribing the judicial conftitution of England. And it may teach the most discontented amongst us to acquiefce in the government of his country; to reflect, that the pure, and wife, and equal administration of the laws, forms the firft end and bleffing of focial union and that this bleffing is enjoyed by him in a perfection, which he will feek in vain, in any other nation of the world.

Chapter IX.

OF CRIMES AND PUNISHMENTS.

THE proper end of human punishment is, not the fatisfaction of juftice, but the prevention of crimes. By the fatisfaction of juftice, I mean the retribution of fo much pain for fo much guilt; which is the dif penfation we expect at the hand of God, and which we are accustomed to confider as the order of things that perfect juftice dictates and requires. In what fenfe, or whether with truth in any fenfe, juftice may be faid to demand the punishment of offenders, I do not now inquire; but I affert that this demand is not the motive or occafion of human punishment. What would it be to the magiftrate that offences went altogether unpunished, if the impunity of the offenders were followed by no danger or prejudice to the commonwealth? The fear left the efcape of the

criminal fhould encourage him, or others by his ex ample, to repeat the fame crime, or to commit differ. ent crimes, is the fole confideration which authorizes the infliction of punishment by human laws. Now that, whatever it be, which is the cause and end of the punishment, ought undoubtedly to regulate the measure of its feverity. But this caufe appears to be founded, not in the guilt of the offender, but in the neceflity of preventing the repetition of the offence. And from hence refults the reason, that crimes are not by any government punished in proportion to their guilt, nor in all cafes ought to be fo, but in proportion to the difficulty and the neceffity of preventing them. Thus the ftealing of goods privately out of a fhop, may not, in its moral quality, be more criminal than the ftealing of them out of a house; yet, being equally neceffary, and more difficult to be prevented, the law, in certain circumftances, denounces against it a feverer punishment. The crime must be prevented by fome means or other; and confequently, whatever means appear neceffary to this end, whether they be proportionable to the guilt of the criminal or not, are adopted rightly, because they are adopted upon the principle which alone juftifies the infliction of punishment at all. From the fame confideration it also follows, that punishment ought not to be employed, much lefs rendered fevere, when the crime can be prevented by any other means. Punishment is an evil to which the magiftrate reforts only from its being neceffary to the prevention of a greater. This neceffity does not exift, when the end may be attained, that is, when the public may be defended from the effects of the crime, by any other expedient. The fanguinary laws which have been made against counterfeiting or diminishing the gold coin of the kingdom might be juft, until the method of detecting the fraud by weighing the money, was introduced into general ufage. Since that precaution was practifed, thefe laws have flept; and an execution under them at this day would be deemed a measure of unjuftifiable feverity. The fame principle accounts for a circumstance, which has been

often cenfured as an abfurdity in the penal laws of this, and of moft modern nations, namely, that breaches of truft are either not punished at all, or punished with lefs rigour than other frauds.-Wherefore is it, fome have asked, that a violation of confidence, which increases the guilt, fhould mitigate the penalty? This lenity, or rather forbearance of the laws, is founded in the moft reasonable diftinction. A due circumfpection in the choice of the perfons whom they trust; caution in limiting the extent of that truft; or the requiring of fufficient fecurity for the faithful discharge of it, will commonly guard men from injuries of this description: and the law will not interpofe its fanctions, to protect negligence and credulity, or to fupply the place of domeftic care and prudence. To be convinced that the law proceeds entirely upon this confideration, we have only to obferve, that, where the confidence is unavoidable, where no practicable vigilance could watch the offender, as in the cafe of theft committed by a fervant in the fhop or dwelling-house of his mafter, or upon property to which he muft neceffarily have accefs, the sentence of the law is not lefs fevere, and its execution commonly more certain and rigorous, than if no truft at all had intervened.

It is in pursuance of the fame principle, which pervades indeed the whole fyftem of penal jurifprudence, that the facility, with which any fpecies of crimes is perpetrated, has been generally deemed a reason for aggravating the punishment. Thus, fheep-stealing, horfe ftealing, the ftealing of cloth from tenters, or bleaching grounds, by our laws, fubject the offenders to fentence of death: not that thefe crimes are in their nature more heinous, than many fimple felonies which are punished by imprisonment or tranfportation, but because the property being more expofed, requires the terror of capital punishment to protect it. This feverity would be abfurd and unjust, if the guilt of the offender were the immediate caufe and measure of the punishment; but is a confiftent and regular confequence of the fuppofition, that the right of punishment refults from the neceffity of preventing

the crime for if this be the end propofed, the fever ity of the punishment must be increased in proportion to the expediency and the difficulty of attaining this end; that is, in a proportion compounded of the mischief of the crime, and of the ease with which it is executed. The difficulty of discovery is a circumftance to be included in the fame confideration. It conftitutes indeed, with refpect to the crime, the facility of which we fpeak. By how much, therefore, the detection of an offender is more rare and uncertain, by fo much the more fevere must be the punishment when he is detected. Thus the writing of incendiary letters, though in itself a pernicious and alarming injury, calls for a more condign and exemplary punishment, by the very obfcurity with which the crime is committed.

From the justice of God we are taught to look for a gradation of punishment, exactly proportioned to the guilt of the offender; when, therefore, in affigning the degrees of human punishment, we introduce confiderations diftinct from that guilt, and a proportion fo varied by external circumftances, that equal crimes frequently undergo unequal punishments, or the lefs crime the greater; it is natural to demand the reason why a different measure of punishment should be expected from God, and obferved by man; why that rule, which befits the abfolute and perfect juf tice of the Deity, fhould not be the rule which ought to be purfued and imitated by human laws? The folution of this difficulty must be fought for in those peculiar attributes of the divine nature, which diftinguish the difpenfations of fupreme wifdom from the proceedings of human judicature. A Being, whofe knowledge penetrates every concealment ; from the operation of whofe will no art or flight can efcape; and in whofe hands punishment is fure;fuch a Being may conduct the moral government of his creation, in the beft and wifeft manner, by pronouncing a law, that every crime fhall finally receive a punishment proportioned to the guilt which it contains, abftracted from any foreign confideration whatever and may testify his veracity to the fpectators

of his judgments, by carrying this law into ftrict execution. But when the care of the public fafety is intrusted to men, whofe authority over their fellow creatures is limited by defects of power and knowledge; from whofe utmoft vigilance and fagacity the greateft offenders often lie hid; whofe wifeft precautions and speedieft purfuit may be eluded by artifice or concealment ;-a different neceffity, a new rule of proceeding refults from the very imperfection of their faculties. In their hands, the uncertainty of punishment must be compenfated by the feverity. The eafe with which crimes are committed or concealed, must be counteracted by additional penalties and increased terrors. The very end for which hu man government is established, requires that its regulations be adapted to the fuppreffion of crimes. This end, whatever it may do in the plans of infinite wisdom, does not, in the defignation of temporal penalties, always coincide with the proportionate punishment of guilt.

There are two methods of adminiftering penal justice.

The first method affigns capital punishments to few offences, and inflicts it invariably.

The fecond method affigns capital punishments to many kinds of offences, but inflicts it only upon a few examples of each kind.

The latter of which two methods has been long adopted in this country, where, of thofe who receive fentence of death, fcarcely one in ten is executed. And the preference of this to the former method feems to be founded in the confideration, that the felection of proper objects for capital punishment principally depends upon circumftances, which, however eafy to perceive in each particular cafe after the crime is committed, it is impoffible to enumerate or define beforehand; or to afcertain, however, with that exactness, which is requifite in legal defcriptions. Hence, although it be neceffary to fix, by precife rules of law, the boundary on one fide, that is, the limit to which the punishment may be extended, and also Ccc