CHAP. IX. Of Crimes and Punishments. HE proper end of human punishment THE is, not the fatisfaction of justice, but the prevention of crimes. By the fatisfaction of justice, I mean the retribution of so much pain for fo much guilt; which is the difpenfation we expect at the hand of God, and which we are accustomed to confider as the order of things that perfect justice dictates and requires. In what sense, or whether with truth in any fenfe, juftice may be faid to demand the punishment of offenders, I do not now enquire; but I asfert that this demand is not the motive or occafion of human punishment. What would it be to the magiftrate that offences went altogether unpunished, if the impunity of the offenders were followed by no danger or prejudice to the commonwealth? The fear left the escape of the criminal fhould encourage him, or others by his example, to repeat the fame crime, or to commit different crimes, is the fole confideration which authorifes the infliction of punishment nishment by human laws. Now that, whatever it be, which is the cause and end of the punishment, ought undoubtedly to regulate the measure of its feverity. But this caufe appears to be founded, not in the guilt of the offender, but in the neceffity of preventing the repetition of the offence. And from hence refults the reason, that crimes are not by any government, nor, in all cafes, ought to be punished, in proportion to their guilt, but in proportion to the difficulty and the neceffity of preventing them. Thus the ftealing of goods privately out of a shop may not, in its moral quality, be more criminal, than the ftealing of them out of a houfe; yet being equally neceffary, and more difficult to be prevented, the law, in certain circumftances, denounces against it a feverer punishment; that is, the crime must be prevented by fome means or other; and confequently, whatever means appear necessary to this end, whether they be proportionable to the guilt of the criminal or not, are adopted rightly, because they are adopted upon the principle which alone juftifies the infliction of punishment at all. From the fame confideration it also follows, that punishment ought not to be employed, much lefs lefs rendered fevere, when the crime can be prevented by any other means. Punishment is an evil, to which the magiftrate reforts only from its being neceffary to the prevention of a greater. This neceffity does not exift, when the end may be attained, that is, when the public may be defended from the effects of the crime, by any other expedient. The fanguinary laws which have been made against counterfeiting or diminishing the gold coin of the kingdom might be juft, until the methodof detecting the fraud, by weighing the money, was introduced into general ufage. Since that precaution was practised, these laws have flept; and an execution under them would be deemed, at this day, a meafure of unjustifiable severity. The fame principle accounts for a circumftance, which has been often cenfured as an absurdity in the penal laws of this, and of most modern nations; namely, that breaches of trust are either not punished at all, or punished with lefs rigour than other frauds---wherefore is it, fome have afked, that a violation of confidence, which increases the guilt, fhould mitigate the penalty? This lenity, or rather forbearance of the law is founded in the moft reafonable diftinction. A due due and practicable circumfpection in the choice of the persons whom they trust, 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 private 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 cafe of theft committed by a fervant in the fhop 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 purfuance of the fame principle, which pervades indeed the whole fyftem of penal jurifprudence, that the facility. with which any fpecies of crimes is perpetrated, has been generally deemed a reafon for aggravating the punifhment. Thus fheep-ftealing, horse-stealing, the stealing of VOL. II. U cloth 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 heinous than many fimple 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 severity would be absurd and unjuft, if the guilt of the offender were the immediate cause and measure of the punishment; but is a confiftent and regular confequence of the fuppofition, that the right of punishment refults 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 mifchief of the crime, and the eafe with which it is executed. The difficulty of discovery is a circumftance to be included in the fame confideration. It conftitutes indeed, with respect to the crime, the facility we speak of. By how much therefore the detection of the offender is more rare and uncertain, by fo much the more fevere must be the punishment, when he is detected. Thus the |