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. The crime must be prevented by fome means or other; and confequently, whatever means appear neceffary 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 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 method of detecting the fraud by weighing the money, was introduced into general ufage. Since that precaution was practifed, these laws have flept: and an execution under them at this day would be deemed a measure of unjustifiable feverity. The fame principle accounts for a circumftance, which has been often cenfured as an abfurdity in the penal laws of this, and of moft modern nations, namely, that breaches of truft are either not punished at all, or punished with lefs rigour than other frauds.Wherefore is it, fome have asked, that a violation of confidence, which increases the guilt, fhould mitigate the penalty? This lenity, or rather forbearance of the laws, is founded in the most reasonable diftinction. A due circumfpection in the choice of the perfons whom they truft; caution in limiting the extent of that truft; or the requiring of fufficient fecurity for the faithful difcharge of it, will commonly guard men from injuries of this defcription: and Ff 2

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the law will not interpofe its fanctions, to protect negligence and credulity, or to fupply the place of domestic care and prudence. To be convinced that the law proceeds entirely upon this confideration, we have only to obferve, 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-houfe of his master, or upon property to which he muft 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 punishment. Thus, fheepftealing, horfe-ftealing, the ftealing of 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 feverity would be abfurd and unjuft, if the guilt of the offender were the immediate caufe and meafare 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 feverity of the punishment must be increafed 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 of the eafe with which it is executed. The difficulty of difcovery is a circumftance to be included in the fame confideration. It conftitutes indeed, with respect to the crime, the facility of which we fpeak. By how much therefore the detection of an offender is more rare and uncertain,

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by fo much the more fevere must be the punishment, when he is detected. Thus the writing of incendiary letters, though in itself a pernicious and alarming injury, calls for a more condign and exemplary punifhment, by the very obfcurity with which the crime is committed.

From the juftice of God we are taught to look for a gradation of punishment, exactly proportioned to the guilt of the offender: when therefore, in affigning the degrees of human punishment, we introduce confiderations diftinct from that guilt, and a proportion fo varied by external circumstances, that equal crimes frequently undergo unequal punishments, or the lefs crime the greater, it is natural to demand the reafon why a different measure of punishment should be expected from God, and obferved by man; why that rule, which befits the abfolute and perfect juftice of the Deity, fhould not be the rule which ought to be purfued and imitated by human laws? The folution of this difficulty must be fought for in thofe peculiar attributes of the divine nature, which diftinguish the difpenfations of fupreme wisdom from the proceedings of human judicature. A Being whofe knowledge penetrates every concealment; from the operation of whofe will no art or flight can efcape; and in whofe hands punishment is fure; fuch a Being may conduct the moral government of his creation, in the best and wifest manner, by pronouncing a law that every crime fhall finally receive a punishment proportioned to the guilt which it contains, abftracted from any foreign confideration whatever; and may teftify his veracity to the spectators of his judgments, by carrying this law into ftrict execution. But when the care of the public fafety is entrusted to men, whose authority over their fellow creatures is limited by defects of power and knowledge; from whofe utmoft vigilance and fagacity the greateft offenders often lie hid; whofe wifelt precautions and fpeedieft purfuit may be eluded by artifice or concealment; a different

different neceffity, a new rule of proceeding refults from the very imperfections of their faculties. In their hands the uncertainty of punishment must be compenfated by the feverity. The eafe with which crimes are committed or concealed, muft be counteracted by additional penalties and increased terrors, The very end for which human government is eftablished, requires that its regulations be adapted to the fuppreffion of crimes. This end, whatever it may do in the plans of infinite wisdom, does not in the defignation of temporal penalties, always coincide with the proportionate punishment of guilt.

There are two methods of administering penal juftice.

The first method affigns capital punishments to few offences, and inflicts it invariably.

The fecond method affigns capital punishments to many kinds of offences, but inflicts it only upon a few examples of each kind.

The latter of which two methods has been long adopted in this country, where, of those who receive fentence of death, fcarcely one in ten is executed. And the preference of this to the former method feems to be founded in the confideration, that the felection of proper objects for capital punifhment principally depends upon circumftances, which, however easy to perceive in each particular cafe after the crime is committed, it is impoffible to enumerate or define beforehand; or to ascertain however with that exactness, which is requifite in legal descriptions. Hence, although it be neceffary to fix by precife rules of law, the boundary on one fide, that is, the limit to which the punishment may be extended, and also that nothing less than the authority of the whole legislature be fuffered to determine that boundary and affign these rules; yet the mitigation of punishment, the exercife of lenity, may, without danger, be entrusted to the executive magiftrate, whofe difcretion will operate upon those numerous, unforeseen, mutable, and indefinite circumstances,

cumftances, both of the crime and the criminal, which constitute or qualify the malignity of each offence. Without the power of relaxation lodged in a living authority, either fome offenders would escape capital punishment, whom the public fafety required to fuffer; or fome would undergo this punishment, where it was neither deferved nor neceffary. For if judgment of death were reserved for one or two fpecies of crimes only, which would probably be the cafe, if that judgment was intended to be executed without exception, crimes might occur of the most dangerous example, and accompanied with circumftances of heinous aggravation, which did not fall within any defcription of offences that the law had made capital, and which confequently could not receive the punishment their own malignity and the public fafety required. What is worfe, it would be known beforehand, that fuch crimes might be committed without danger to the offender's life. On the other hand, if, to reach thefe poffible cafes, the whole clafs of offences to which they belong be fubjected to pains of death, and no power of remitting this feverity remain any where, the execution of the laws will become more fanguinary than the public compaffion would endure, or than is neceffary to the general fecurity.

The law of England is conftructed upon a different and a better policy. By the number of ftatutes creating capital offences, it fweeps into the net every crime which under any poffible circumftances may merit the punishment of death: but when the execution of this fentence comes to be deliberated upon, a fmall portion of each class are fingled out, the general character, or the peculiar aggravations of whofe crimes, render them fit examples of public juftice. By this expedient few actually fuffer death, whilft the dread and danger of it hang over the crimes of many. The tendernefs of the law cannot be taken advantage of. The life of the fubject is fpared, as far as the neceffity of reftraint and inti

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