whom they truft; 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 domestic care and prudence. To be convinced that the law proceeds entirely upon this confideration, we have only to observe, that, where the confidence is unavoidable, where no practicable vigilance could watch the offender, as in the case of theft committed by a fervant in the shop or dwelling-house of his mafter, or upon property to which he must neceffarily have accefs, the fentence 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 jurisprudence, that the facility with which any species of crimes is perpetrated, has been generally deemed a reafon for aggravating the punishment. Thus, fheep-ftealing, horfe-ftealing, the ftealing of cloth from tenters, or bleaching grounds, by our laws, fubject the offenders to fentence of death not that these crimes are in their nature more more heinous, than many simple felonies which are punished by imprisonment or transportation, but because the property being more expofed, requires the terror of capital punishment to protect it. This feverity would be abfurd and unjuft, 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 results from the neceffity of preventing the crime: for if this be the end propofed, the severity 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 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 distinct 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 fhould be expected from God, and observed by man; why that rule, which befits the abfolute and perfect juftice of the Deity, should not be the rule which ought to be pursued and imitated by human laws. The folution of this difficulty must be fought for in thofe 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 whose will no art or flight can escape; and in whofe hands punishment is fure; fuch a Being may conduct the moral government of his creation, in the best and wifest manner, by pronouncing a law that every crime fhall finally receive a punishment proportioned to the guilt which it contains, abT ftracted VOL. II. ftracted from any foreign confideration whatever : and may teftify his veracity to the fpectators of his judgments, by carrying this law into strict execution. But when the care of the public fafety is entrusted to men, whofe authority over their fellow creatures is limited by defects of power and knowledge; from whofe utmost vigilance and fagacity the greateft offenders often lie hid; whose wifeft precautions and speediest pursuit 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 compensated by the severity, The cafe with which crimes are committed or concealed, muft be counteracted by additional penalties and increased terrors. very end for which human government is eftablished, 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. The There are two methods of adminiftring penal justice. The 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 those 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 selection of proper objects for capital punishment principally depends upon circumstances, which, however easy 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 alfo that nothing less than the authority of the whole legislature be suffered to determine that boundary and affign these rules; yet the mitigation of punishment, the exercise of lenity, may, without danger, be entrusted to the executive magiftrate, whose discretion will operate upon those numerous, unforeseen, mutable, |