rish in a manner dreadful to the imagination, yet concealed from the view.

Infamous punishments are mismanaged in this country, with respect both to the crimes and the criminals. In the first place, they ought to be confined to offences, which are held in undifputed and univerfal deteftation. To condemn to the pillory the author or editor of a libel against the ftate, who has rendered himself the favourite of a party, if not of the people, by the very act for which he stands there, is to gratify the offender, and to expose the laws to mockery and infult. In the fecond place, the delinquents who receive this fentence are for the most part such as have long ceafed either to value reputation, or to fear fhame; of whofe happiness, and of whose enjoyments character makes no part. Thus the low minifters of libertinifm, the keepers of bawdy or diforderly houses, are threatened in vain with a punishment that affects a fenfe which they have not; that applies folely to the imagination, to the virtue and the pride of human nature. The pillory, or any other infamous diftinction might be employed rightly, and with effect, in the punishment of fome offences of higher life; as of frauds and peculation in office; of collufions and connivances, by which the public treasury is defrauded;

frauded; of breaches of truft; of perjury, and fubornation of perjury; of the clandestine and forbidden fale of places; of flagrant abufes of authority, or neglect of duty; and lastly, of corruption in the exercise of confidential, or judicial offices. In all which the more elevated was the ftation of the criminal, the more fignal and confpicuous would be the triumph of justice.

The certainty of punishment is of more confequence than the feverity. Criminals do not fo much flatter themselves with the lenity of the fentence, as with the hope of efcaping. They are not fo apt to compare what they gain by the crime with what they may fuffer from the punishment, as to encourage themselves with the chance of concealment or flight. For which reafon a vigilant magistracy, an accurate police, a proper diftribution of force and intelligence, together with due rewards for the difcovery and apprehension of malefactors, and an undeviating impartiality in carrying the laws into execution, contribute more to the restraint and fuppreffion of crimes, than any violent exacerbations of punishment. And for the fame reason, of all contrivances directed to this end, those perhaps are most effectual which facilitate the conviction of criminals. The offence of counterfeiting the coin

could

could not be checked by all the terrors and the utmost severity of law, whilft the act of coining was neceffary to be established by specific proof. The statute which made the poffeffion of the implements of coining capital, that is, which conftituted that poffeffion complete evidence of the offender's guilt, was the first thing that gave force and efficacy to the denunciations of law upon this fubject. The ftatute of James the First, relative to the murder of baftard children, which ordains that the concealment of the birth fhould be deemed inconteftable proof of the charge, though a harsh law, was, in like manner with the former, well calculated to put a stop to the

crime.

It is upon the principle of this observation, that I apprehend much harm to have been done to the community, by the over-ftrained scrupulousness, or weak timidity of juries, which demands often fuch proof of a prifoner's guilt, as the nature and secrecy of his crime scarce poffibly admit of; and which holds it the part of a fafe confcience not to condemn any man, whilst there exifts the minuteft poffibility of his innocence. Any ftory they may happen to have heard or read, whether real or feigned, in which. courts of juftice have been mifled by prefump

tions of guilt, is enough, in their minds, to found an acquittal upon, where pofitive proof is wanting. I do not mean that juries fhould indulge conjectures, should magnify suspicions into proofs, or even that they should weigh probabilities in gold fcales; but when the preponderation of evidence is fo manifeft, as to perfuade every private understanding of the prifoner's guilt; when it furnishes that degree of credibility, upon which men decide and act in all other doubts, and which experience hath shown that they may decide and act upon with sufficient fafety; to reject fuch proof, from an infinuation of uncertainty that belongs to all human affairs, and from a general dread left the charge of innocent blood should lie at their doors, is a conduct which, however natural to a mind ftudious of its own quiet, is authorized by no confiderations of rectitude or utility. It counteracts the care and damps the activity of government: it holds out public encouragement to villainy, by confeffing the impoffibility of bringing villains to juftice; and that fpecies of encouragement, which, as hath been juft now obferved, the minds of fuch men are most apt to entertain and dwell upon.

There are two popular maxims, which feem to have a confiderable influence in producing the injudicious

injudicious acquittals of which we complain. One is," that circumftantial evidence falls fhort "of positive proof." This affertion, in the unqualified fenfe in which it is applied, is not true. A concurrence of well-authenticated circumstances compofes a stronger ground of affurance than pofitive teftimony, unconfirmed by circumstances, ufually affords. Circumftances cannot lie. The conclufion alfo which refults from them, though deduced by only probable inference, is commonly more to be relied upon than the veracity of an unfupported folitary witnefs. The danger of being deceived is lefs, the actual inftances of deception are fewer, in the one cafe than the other. What is called pofitive proof in criminal matters, as where a man fwears to the person of the prifoner, and that he actually faw him commit the crime with which he is charged, may be founded in the mistake or perjury of a single witness. Such mistakes, and fuch perjuries, are not without many examples. Whereas to impose upon a court of juftice, a chain of circumftantial evidence in fupport of a fabricated accufation, requires fuch a number of falfe witneffes as feldom meet together; an union also of skill and wickedness which is ftill more rare; and after, all this fpecies of proof lies much more open to difcuf