turers.

much greater, than in the case of folitary advenWhich feveral confiderations compofe a diftinction, that is properly adverted to, in deciding upon the fate of convicted malefactors.

In crimes however, which are perpetrated by a multitude, or by a gang, it is proper to feparate, in the punishment, the ringleader from his followers, the principal from his accomplices, and even the person who ftruck the blow, broke the lock, or firft entered the house, from those who joined him in the felony; not fo much on account of any distinction in the guilt of the offenders, as for the sake of casting an obftacle in the way of fuch confederacies, by rendering it difficult for the confederates to fettle who shall begin the attack, or to find a man amongst their number willing to expofe himself to greater danger than his affociates. This is another inftance in which the punishment, which expediency directs, does not purfue the exact proportion of the crime.

Injuries effected by terror and violence, are those which it is the firft and chief concern of legal government to reprefs; because, their extent is unlimited; because, no private precaution can protect the fubject against them; becaufe, they endanger life and safety, as well as

property;

property; and laftly, because, they render the condition of fociety wretched, by a sense of perfonal infecurity. These reasons do not apply to frauds, which circumfpection may prevent; which must wait for opportunity; which can proceed only to certain limits; and, by the apprehenfion of which, although the business of life be incommoded, life itself is not made miferable. The appearance of this diftinction has led fome humane writers to express a wifh, that capital punishments might be confined to crimes of violence.

In estimating the comparative malignancy of crimes of violence, regard is to be had, not only to the proper and intended mifchief of the crime, but to the fright occafioned by the attack, to the general alarm excited by it in others, and to the confequences which may attend future attempts of the fame kind. Thus in affixing the punishment of burglary, or of breaking into dwellinghoufes by night, we are to confider not only the peril to which the most valuable property is expofed by this crime, and which may be called the direct mischief of it, but the danger alfo of murder in cafe of refiftance or for the fake of preventing difcovery, and the univerfal dread with which the filent and defenceless hours of

reft

reft and fleep must be difturbed, were attempts of this fort to become frequent; and which dread alone, even without the mischief which is the object of it, is not only a public evil, but almost of all evils the moft infupportable. These circumstances place a difference between the breaking into a dwelling-house by day, and by night; which difference obtains in the punishment of the offence by the law of Mofes, and is probably to be found in the judicial codes of most countries, from the earliest ages to the pre

fent.

Of frauds, or of injuries which are effected without force, the moft noxious kinds are forgeries, counterfeiting or diminishing of the coin, and the stealing of letters in the courfe of their conveyance; inafmuch as these practices tend to deprive the public of accommodations, which not only improve the conveniencies of focial life, but are effential to the prosperity, and even the existence of commerce. Of these crimes it may be faid, that, although they seem to affect property alone, the mischief of their operation does not terminate there. For let it be fuppofed, that the remiffness or lenity of the laws should, in any country, fuffer offences of this fort to grow into fuch a frequency, as to render the use

of

of money, the circulation of bills, or the public conveyance of letters no longer safe or practicable; what would follow, but that every species of trade and of activity muft decline under these discouragements; the fources of fubfiftence fail, by which the inhabitants of the country are fupported; the country itself, where the intercourse of civil life was fo endangered and defective, be deferted; and that, befide the distress and poverty, which the lofs of employment would produce to the induftrious and valuable part of the exifting community, a rapid depopulation must take place, each generation becoming lefs numerous than the laft, till folitude and barrenness overspread the land; until a defolation fimilar to what obtains in many countries of Afia, which were once the most civilized and frequented parts of the world, fucceed in the place of crowded cities, of cultivated fields, of happy and well-peopled regions. When we carry forwards therefore our views to the more diftant, but not lefs certain confequences of these crimes, we perceive that, though no living creature be destroyed by them, yet human life is diminished; that an offence, the particular confequence of which deprives only an individual of a small portion of his property, and which even

in its general tendency feems to do nothing more than to obstruct the enjoyment of certain public conveniencies, may nevertheless, by its ultimate effects, conclude in the laying waste of human exiftence. This obfervation will enable thofe, who regard the divine rule of "life for "life, and blood for blood," as the only authorized and justifiable measure of capital punishment, to perceive, with respect to the effects and quality of the actions, a greater resemblance than they fuppofe to exist, between certain atrocious frauds, and these crimes which attack perfonal fafety.

In the cafe of forgeries there appears a fubftantial difference, between the forging of bills of exchange, or of fecurities which are circulated, and of which the circulation and currency are found to ferve and facilitate valuable purpofes of commerce, and the forging of bonds, leafes, mortgages, or of inftruments which are not commonly transferred from one hand to another; because, in the former cafe credit is necessarily given to the fignature, and, without that credit, the negociation of fuch property could not be carried on, nor the public utility fought from it be attained; in the other cafe, all poffibility of deceit might be precluded, by a