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guilt," if he had not himself formally, at the outset of his dissertation upon crimes and punish

ment, protested against such being in any case "the motive or occasion of human punish"ment."*

The evil, it seems, to be guarded against, is that of the punishment of death being sometimes inflicted where it is neither deserved or necessary. Now, in whatever sense these words be used, it is most certain, that that evil still must continue where the exercise of lenity is to depend upon human, that is, upon fallible judgments. We know almost with certainty of some cases, that if they were submitted to the discretion of two different individuals, one would be for exercising lenity, and the other for enforcing the law, each acting from the best of motives, each satisfied that he had conscientiously discharged his duty, the one by executing the law, the other by extending mercy; and who shall presume to say which of them has "suffered an "offender to escape capital punishment, whom "the public safety required to suffer;" and "which has inflicted that punishment where it 66 was neither deserved nor necessary ?"

* P. 275.

"If judgment of death," continues Dr. Paley, "were reserved for one or two species of crimes

only, which would probably be the case if "that judgment were intended to be executed "without exception; crimes might occur of "the most dangerous example, and accompa"nied with circumstances of heinous aggrava"tion, which did not fall within any description "of offences that the law had made capital, and "which consequently could not receive the pu"nishment their own malignity and the public

safety required." Undoubtedly if it were intended that the laws should be executed, we should not in an age which persuades itself that humanity is amongst its peculiar characteristics, see the punishment of death affixed to so long a catalogue of crimes as appear in the English statutes; but yet no reason can be assigned, as long as death is retained in our law as a punishment, why it should not, in laws meant to be rigorously executed, be the appointed punishment for crimes" of the most dangerous example, ac"companied with circumstances of heinous ag"gravation." What danger could there possibly be that we should lessen the power of inflicting punishment on crimes of most dangerous example, accompanied with circumstances of

heinous aggravation, by striking out of the statute book the acts which inflict death on the crimes of privately stealing to the value of five shillings in a shop, of stealing forty shillings' worth of property in a dwelling-house, or of stealing cloth from bleaching grounds?

"What is worse," he adds, "it would be "known beforehand that such crimes might be "committed without danger to the offender's "life." If this be an evil, it is an evil that the law should be known, or that there should be any law at all; for unknown laws are the same as non-existing laws. It is a necessary consequence of knowing what actions are punishable by law, that it should also be known what a man may do without fear of punishment; and it is not a little extraordinary, that in a country in which men have been accustomed to think that one of the greatest political blessings they enjoyed, was that they lived in the security which known and certain laws afforded them, we should be told by a writer of such high character and such extraordinary merit as Dr. Paley, that it is a good that laws be not known, because if known, they might be evaded.

Undoubtedly it would be a great mischief if

actions dangerous to the public safety could be committed with impunity, and much more, if, in the language of this writer, "men could adven"ture upon the commission of enormous crimes "from a knowledge that the law had not provid"ed for their punishment."* But what must be the character of that code of laws which leaves enormous crimes without punishment provided for them? and what other remedy is there for this evil than that which Dr. Paley himself recommends, when he reprobates the use of acts of attainder and bills of pains and penalties? "Let "the legislature, admonished of the defect of "the laws, provide against the commission of "future crimes of the same sort."†

The terms, "enormous crimes," and "heinous aggravations," are of so vague and indefinite a nature, that it is not possible to ascertain with accuracy in what sense they are here used; but understanding them in their common and popular acceptation to mean actions of great moral depravity, it is not easy to understand how the punishment of them is secured by the system which Dr. Paley defends. On the one hand, it is not at all evident how the stealing privately * P. 284. + P. 239.

in a shop, or the stealing from bleaching grounds,

or the stealing of sheep, can under any circumstances be considered as an enormous crime, or accompanied with heinous aggravations: and on the other it must be admitted, that sanguinary as our law is, numerous as are our capital offences, wide, to use Dr. Paley's own metaphor, wide as the penal net is spread, there are many acts of the greatest moral depravity for which neither the punishment of death nor any other punishment of great severity is provided. A guardian who has defrauded his ward of the property with which he was intrusted for her benefit, and who has besides seduced her and turned her out upon the world a beggar and a prostitute; a man who being married, has concealed that fact, and having gained the affections of a virtuous woman, has persuaded her to become his wife, knowing at the same time that the truth cannot long be concealed, and that whenever disclosed it must plunge her into the deepest misery, and must have destroyed irretrievably all her prospects of happiness in life; has surely done that which better deserves the epithet of enormous crime, accompanied with heinous aggravation, than a butler who has stolen his master's wine. It is not a great many years ago since an attorney