and indefinite circumstances, both of the crime and the criminal, which conftitute or qualify the malignity of each offence. Without the power of relaxation lodged in a living authority, either fome offenders would efcape capital punishment, whom the public fafety required to fuffer; or fome would undergo this punishment, where it was neither deserved nor neceffary. For if judgment of death were referved for one or two fpecies of crimes only, which would probably be the case, if that judgment was intended to be executed without exception, crimes might occur of the most dangerous example, and accompanied with circumftances of heinous aggravation, which did not fall within any defcription of offences that the laws had made capital, and which confequently could not receive the punishment their own malignity and the public safety required. What is worse, it would be known beforehand, that such crimes might be committed without danger to the offender's life. On the other hand, if, to reach thefe poffible cafes, the whole clafs of offences to which they belong be fubjected to pains of death, and no power of remitting this feverity remain any where, the execution of the laws will become more fanguinary

than

than the public compaffion would endure, or than is neceffary to the general fecurity.

The law of England is conftructed upon a different and a better policy. By the number of ftatutes creating capital offences, it fweeps into the net every crime, which under any poffible eircumftances may merit the punishment of death but when the execution of this fentence comes to be deliberated upon, a small proportion of each clafs are fingled out, the general character, or the peculiar aggravations of whofe crimes, render them fit examples of public juftice. By this expedient few actually suffer death, whilst the dread and danger of it hang over the crimes of many. The tenderness of the law cannot be taken advantage of. The life of the fubject is fpared, as far as the neceffity of restraint and intimidation permits, yet no one will adventure upon the commiffion of any enormous crime, from a knowledge that the laws have not provided for its punishment. The wisdom and humanity of this design furnish a just excuse for the multiplicity of capital offences, which the laws of England are accused of creating beyond those of other countries. The charge of cruelty is answered by obferving, that these laws were never meant to be carried into indiscriminate execution;

T 3

execution; that the legislature, when it eftablishes its last and highest sanctions, trufts to the benignity of the crown to relax their severity, as often as circumftances appear to palliate the offence, or even as often as thofe circumstances of aggravation are wanting, which rendered this rigorous interpofition neceffary. Upon this plan it is enough to vindicate the lenity of the laws, that fome inftances are to be found in each class of capital crimes, which require the restraint of capital punishment; and that this reftraint could not be applied, without fubjecting the whole clafs to the fame condemnation.

There is however one fpecies of crimes, the making of which capital can hardly, I think, be defended, even upon the comprehensive principle just now stated; I mean that of privately stealing from the perfon. As every degree of force is excluded by the defcription of the crime, it will be difficult to affign an example, where either the amount or circumftances of the theft place it upon a level with those dangerous attempts, to which the punishment of death fhould be confined. It will be ftill more difficult to fhew, that, without grofs and culpable negligence on the part of the fufferer, fuch examples can ever become fo frequent, as to make it neceflary

to

to constitute a clafs of capital offences, of very wide and large extent.

The prerogative of pardon is properly referved to the chief magiftrate. The power of fufpending the laws is a privilege of too high a nature to be committed to many hands, or to thofe of any inferior officer in the state. The king alfo can beft collect the advice by which his refolutions should be governed; and is at the fame time removed at the greateft diftance from the influence of private motives. But let this power be depofited where it will, the exercife of it ought to be regarded, not as a favour to be yielded to folicitation, granted to friendship, or, least of all, to be made fubfervient to the conciliating or gratifying of political attachments, but as a judicial act; as a deliberation to be conducted with the fame character of impartiality, with the fame exact and diligent attention to the proper merits and circumftances of the cafe, as that which the judge upon the bench was expected to maintain and fhow in the trial of the prisoner's guilt. The queftions whether the prifoner be guilty, and whether, being guilty, he ought to be executed, are equally questions of public juftice. The adjudication of the latter queftion is as much a function of magiftracy as

the trial of the former. The public welfare is interested in both. The conviction of an of fender fhould depend upon nothing but the proof of his guilt, nor the execution of the fentence upon any thing befide the quality and circumstances of his crime. It is necessary to the good order of fociety, and to the reputation and authority of government, that this be known and believed to be the cafe in each part of the proceeding. Which reflections show, that the admiffion of extrinfic or oblique confiderations, in difpenfing the power of pardon, is a crime in the authors and advisers of fuch unmerited partiality, of the fame nature with that of corruption in a judge.

Aggravations which ought to guide the magiftrate in the selection of objects of condign punishment are principally these three-repetition, cruelty, combination. The two firft, it is manifeft, add to every reafon upon which the juftice or the neceffity of rigorous measures can be founded; and, with refpect to the laft circumftance, it may be obferved, that when thieves and robbers are once collected into gangs, their violence becomes more formidable, the confederates more defperate, and the difficulty of defending the public against their depredations

much