midation 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 wifdom and humanity of this defign furnish a juft excufe 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 aufwered by obferving, that the laws were never meant to be carried into indifcriminate execution; that the legislature, when it establishes its laft and higheft fanctions, trufts to the benignity of the crown to relax their severity, as often as circumftances appear to palliate the of fence, or even as often as thofe circumftances of aggravation are wanting, which render this rigorous interpofition neceffary. Upon this plan it is enough to vindicate the lenity of the laws, that feme inftances are to be found in each clafs of capital crimes, which require the reftraint 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 comprehenfive principle just now ftated; I mean that of privately ftealing 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 thofe 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 neceffary to conftitute a clafs of capital offences, of very wide and large extent,

The prerogative of pardon is properly reserved 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 those of any inferior

officer

officer in the ftate. The king alfo can beft collect the advice by which his refolutions fhould be governed; and is at the fame time removed at the greatest distance from the influence of private motives. But let this power be depofited where it will, the exercise 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 prifoner's guilt. The questions whether the prifoner be guilty, and whether, being guilty, he ought to be executed, are equally queftions 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 offender fhould depend upon nothing but the proof of his guilt, nor the execution of the fentence upon any thing befide the quality and circumftances of his crime. It is neceffary 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 fhow, that the admiffion of extrinsic 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 felection 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 justice or the neceffity of rigorous measures can be founded; and, with respect to the laft circumftance, it may be observed, 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 greater, than in the case of solitary adventurers. Which feveral confiderations compose 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 perfon who ftruck the blow, broke the lock, or first entered the houfe, from thofe who joined him in the felony; not so much on account of any diftinction in the guilt of the offenders, as for the fake of cafting an obstacle in the way of fuch confederacies, by rendering it difficult for the confederates to settle who fhall 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 pursue the exact proportion of the crime.

Injuries effected by terror and violence, are thofe which it is the firft and chief concern of legal go vernment to reprefs; because, their extent is unlimited; because, no private precaution can protect the fubject against them, because, they endanger life and fafety, as well as property; and laftly, because, they render the condition of fociety wretched, by a fenfe of perfonal infecurity. Thefe reafons do not apply to frauds, which circumfpection may prevent; which muft wait for opportunity; which can proceed only to certain limits; and, by the apprehenfion of which, although the bufinefs of life be incommoded, life itfelf is not made miferable. The appearance of this diftinction has led fome humane writers to exprefs a wish, that capital punishments might be confined to crimes of violence.

In

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 dwelling-houses 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 mifchief 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 and fleep must be disturbed, 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 most insupportable. These circumftances place a difference between the breaking into a dwellinghouse 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 carlieft ages to the prefent.

Of frauds, or of injuries which are effected without force, the moft noxious kinds are forgeries, counterfeiting or diminishing of the coin, and the ftealing of letters in the courfe of their conveyance; inafmuch as thefe practices tend to deprive the public of accommodations, which not only improve the conveniencies of focial life, but are effential to the profperity, and even the existence of commerce. Of thefe crimes it may be faid, that, although they feem 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 fhould, in any country, fuffer offences of this fort to grow into fuch a frequency, as to render the use of money, the circulation of bills, or the public con

veyance

veyance of letters no longer safe or practicable; what would follow, but that every species of trade and of activity mult decline under thefe difcouragements; the fources of fubfiftence fail, by which the inhabitants of the country are fupported; the country itself, where the intercourfe of civil life was fo endangered and defective, be deferted; and that, beside the distress and poverty, which the lofs of employment would produce to the induftrious and valuable part of the exifting community, a rapid depopulation muft take place, each generation becoming lefs numerous than the laft, till folitude and barrennefs overfpread 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 deftroyed 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 obftruct the enjoyment of certain public conveniencies, may nevertheless, by its ultimate effects, conclude in the laying waste of human existence. This obfervation will enable thofe, who regard the divine rule of "life for life, and blood for blood," as the only authorized and juftifiable measure of capital punishment, to perceive, with refpect to the effects and quality of the actions, a greater refemblance than they fuppofe to exift, between certain atrocious frauds, and thefe 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