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feiting the coin could not be checked by all the terrors and the utmost severity of law, whilst the act of coining was necessary to be established by specific proof. The statute which made possession of the implements of coining capital, that is, which constituted that possession complete evidence of the offender's guilt, was the first thing that gave force and efficacy to the denunciations of law upon this subject. The statute of James the First, relative to the murder of bastard children, which ordains that the concealment of the birth should be deemed incontestable 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 overstrained scrupulousness, or weak timidity, of juries, which demands often such proof of a prisoner's guilt as the nature and secrecy of his crime scarce possibly admit of; and which holds it the part of a safe conscience not to condemn any man, whilst there exists the minutest possibility of his innocence. Any story they may happen to have heard or read, whether real or feigned, in which courts of justice have been misled by presumptions of guilt, is enough, in their minds, to found an acquittal upon, where positive proof is wanting. I do not mean that juries should indulge conjectures, should magnify suspicions into proofs, or even that they should weigh probabilities in gold scales: but when the preponderation of evidence is so manifest as to persuade every private understanding of the prisoner's guilt; when it furnishes the 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 safety: to reject such proof, from an insinuation of the uncertainty that belongs to all human affairs, and from a general dread lest the charge of innocent blood should lie at their doors, is a conduct which, however natural to a mind studious of its
own quiet, is authorized by no considerations of rectitude or utility. It counteracts the care, and damps the activity of government; it holds out public encouragement to villany, by confessing the impossibility of bringing villains to justice; and that species of encouragement which, as hath been just now observed, the minds of such men are most apt to entertain and dwell upon. There are two popular maxims, which seem to have a considerable influence in producing the injudicious acquittals of which we complain. One is, “that circumstantial evidence falls short of positive proof.” This assertion, in the unqualified sense in which it is applied, is not true. A concurrence of well authenticated circumstances composes a stronger ground of assurance than positive testimony, unconfirmed by circumstances usually affords. Circumstances cannot lie. The conclusion also which results from them, though deduced by only probable inference, is commonly more to be relied upon than the veracity of an unsupported solitary witness. The danger of being deceived is less, the actual instances of deception are fewer, in the one case than the other. What is called positive proof in criminal matters, as where a man swears to the person of the prisoner, and that he actually saw him commit the crime with which he is charged, may be founded in the mistake or perjury of a single witness. Such mistakes and such perjuries are not without many examples. Whereas to impose upon a court of justice a chain of circumstantial evidence, in support of a fabricated accusation, requires such a number of false witnesses as seldom meet together; a union also of skill and wickedness which is still more rare; and, after all, this species of proof lies much more open to discussion, and is more likely, if false, to be contradicted, or to betray itself by some unforeseen inconsistency, than that direct proof, which, being confined within the knowledge of a single person, which, appealing to, or standing connected with no external or collateral circumstances, is incapable,
by its very simplicity, of being confronted with opposite probabilities. The other maxim which deserves a similar examination is this:—“That it is better that ten guilty persons escape, than that one innocent man should suffer.” If by saying it is better be meant that it is more for the public advantage, the proposition, I think, cannot be maintained. The security of civil life, which is essential to the value and the enjoyment of every blessing it contains, and the interruption of which is followed by universal misery and confusion, is protected chiefly by the dread of punishment. The misfortune of an individual (for such may the sufferings, or even the death, of an innocent person be called, when they are occasioned by no evil intention) cannot be placed in competition with this object. I do not contend that the life or safety of the meanest subject ought, in any case, to be knowingly sacrificed: no principle of judicature, no end of punishment, can ever require that. But when certain rules of adjudication must be pursued, when certain degrees of credibility must be accepted, in order to reach the crimes with which the public are infested; courts of justice should not be deterred from the application of these rules, by every suspicion of danger, or by the mere possibility of confounding the innocent with the guilty. They ought rather to reflect, that he who falls by a mistaken sentence may be considered as falling for his country, whilst he suffers under the operation of those rules, by the general effect and tendency of which the welfare of the community is maintained and up
of RELIGIOUS ESTABLISHMENTS, AND OF TOLERATION.
“A RELIGIOUs establishment is no part of Christianity; it is only the means of inculcating it.”. Amongst the Jews, the rights and offices, the order, family, and succession of the priesthood were marked out by the
authority which declared the law itself. These, therefore, were parts of the Jewish religion, as well as the means of transmitting it. Not so with the new institution. It cannot be proved that any form of churchgovernment was laid down in the Christian, as it had been in the Jewish Scriptures, with a view of fixing a constitution for succeeding ages; and which constitution, consequently, the disciples of Christianity would everywhere, and at all times, by the very law of their religion, be obliged to adopt. Certainly, no command for this purpose was delivered by Christ himself: and if it be shown that the apostles ordained bishops and presbyters amongst their first converts, it must be remembered that deacons also and deaconesses were appointed by them, with functions very dissimilar to any which obtain in the church at present. The truth seems to have been, that such offices were at first erected in the Christian church, as the good order, the instruction, and the exigencies of the society at that time required, without any intention, at least without any declared design, of regulating the appointment, authority, or the distinction of Christian ministers under future circumstances. This reserve, if we may so call it, in the Christian Legislator, is sufficiently accounted for by two considerations:— First, that no precise constitution could be framed, which would suit with the condition of Christianity in its primitive state, and with that which it was to assume when it should be advanced into a national religion: Secondly, that a particular designation of office or authority amongst the ministers of the new religion might have so interfered with the arrangements of civil policy, as to have formed, in some countries, a considerable obstacle to the progress and reception of the religion itself. The authority therefore of a church establishment is founded in its utility: and whenever, upon this principle, we deliberate concerning the form, propriety, or comparative excellency of different establishments, the single view under which we ought to consider any of them is, that of “a scheme of instruction;” the single end we ought to propose by them is “the preservation and communication of religious knowledge.” Every other idea, and every other end, that have been mixed with this, as the making of the church an engine, or even an ally, of the state; converting it into the means of strengthening or diffusing influence; or regarding it as a support of regal in opposition to popular forms of government; have served only to debase the institution, and to introduce into it numerous corruptions and abuses. Thenotion of a religious establishment comprehends three things; a clergy, or an order of men secluded from other professions to attend upon the offices of religion; a legal provision for the maintenance of the clergy; and the confining of that provision to the teachers of a particular sect of Christianity. If any one of these three things be wanting; if there be no clergy, as amongst the Quakers; or if the clergy have no other provision than what they derive from the voluntary contribution of their hearers; or if the provision which the laws assign to the support of religion be extended to various sects and denominations of Christians; there exists no national religion or established church, according to the sense which these terms are usually made to convey. He therefore, who would defend ecclesiastical establishments, must show the separate utility of these three essential parts of their constitution.— 1. The question first in order upon the subject, as well as the most fundamental in its importance, is, whether the knowledge and profession of Christianity can be maintained in a country, without a class of men set apart by public authority to the study and teaching of religion, and to the conducting of public worship; and for these purposes secluded from other employments. I add this last circumstance, because in it consists, as I take it, the substance of the controversy. Now it must be remembered, that Chris