ated by a great interval, are assigned to crimes hardly distinguishable in their guilt and mischief. other provision or supply; that his subsistence, however coarse and penurious, may be propor. tioned to his diligence, and that he may taste the advantage of industry together with the toil. I would go further; I would measure the confinement, not by the duration of time, but by quantity of work, in order both to ex. cite industry, and to render it more voluntary. But the principal difficulty remains still; namely, how to dispose of criminals after their enlargement. By a rule of life, which is per. haps too invariably and indiscriminately ad The end of punishment is two-fold ;amendment, and example. In the first of these, the reformation of criminals, little has ever been effected, and little, I fear, is practicable. From every species of punishment that has hitherto been devised, from imprisonment and exile, from pain and infamy, malefactors return more hardened in their crimes, and more instructed. If there be any thing that shakes the soul of a confirmed villain, it is the expec-hered to, no one will receive a man or woman tation of approaching death. The horrors of this situation may cause such a wrench in the mental organs, as to give them a holding turn: and I think it probable, that many of those who are executed, would, if they were delivered at the point of death, retain such a remembrance of their sensations, as might preserve them, unless urged by extreme want, from relapsing into their former crimes. But this is an experiment that, from its nature, cannot be re-soners might not, after the term of their conpeated often. out of a jail, into any service or employment whatever. This is the common misfortune of public punishments, that they preclude the offender from all honest means of future support". It seems incumbent upon the state to secure a maintenance to those who are willing to work for it; and yet it is absolutely necessary to divide criminals as far asunder from one another as possible. Whether male pri finement was expired, be distributed in the Of the reforming punishments which have not country, detained within certain limits, and yet been tried, none promises so much success employed upon the public roads; and females as that of solitary imprisonment, or the con- be remitted to the overseers of country parishes, finement of criminals in separate apartments. to be there furnished with dwellings, and with This improvement augments the terror of the the materials and implements of occupation; punishment; secludes the criminal from the whether by these, or by what other methods, society of his fellow-prisoners, in which society the worse are sure to corrupt the better; weans him from the knowledge of his companions, and from the love of that turbulent, precarious life in which his vices had engaged him: is calculated to raise up in him reflections on the folly of his choice, and to dispose his mind to such bitter and continued penitence, as may produce a lasting alteration in the principles of his conduct. it may be possible to effect the two purposes of employment and dispersion; well merits the attention of all who are anxious to perfect the internal regulation of their country. Torture is applied either to obtain confessions of guilt, or to exasperate or prolong the pains of death. No bodily punishment, however excruciating or long-continued, receives the name of torture, unless it be designed to kill the criminal by a more lingering death; As aversion to labour is the cause from or to extort from him the discovery of some which half of the vices of low life deduce their secret, which is supposed to lie concealed in his origin and continuance, punishments ought to breast. The question by torture appears to be be contrived with a view to the conquering of equivocal in its effects: for since extremity of this disposition. Two opposite expedients have pain, and not any consciousness of remorse in been recommended for this purpose; the one, the mind, produces those effects: an innocent solitary confinement with hard labour; the man may sink under the torment, as well as other, solitary confinement with nothing to do. he who is guilty. The latter has as much to Both expedients seek the same end;-to re-fear from yielding, as the former The instant concile the idle to a life of industry. The former hopes to effect this by making labour habitual; the latter, by making idleness insupportable and the preference of one method to the other depends upon the question, whether a man is more likely to betake himself, of his own accord, to work, who has been accustomed to employment, or who has been distressed by the want of it. When jails are once provided for the separate confinement of prisoners, which both proposals require, the choice between them may soon be determined by expe rience. If labour be exacted, I would leave the whole, or a portion, of the earnings to the prisoner's use, and I would dehar him from any and almost irresistible desire of relief may draw from one sufferer false accusations of himself or others, as it may sometimes extract the truth out of another. This ambiguity renders the use of torture, as a means of procuring infor. mation in criminal proceedings, liable to the risk of grievous and irreparable injustice. For which reason, though recommended by ancient and general example, it has been properly exploded from the mild and cautious system of penal jurisprudence established in this country. Until this inconvenience be remedied, small offences had perhaps better go unpunished: I do not mean that the law should exempt them from punishment, but that private persons should be tender in prosecuting them. Barbarous spectacles of human agony are They are not so apt to compare what they justly found fault with, as tending to harden gain by the crime with what they may suffer and deprave the public feelings, and to destroy from the punishment, as to encourage themthat sympathy with which the sufferings of our selves with the chance of concealment or flight. fellow-creatures ought always to be seen; or, For which reason, a vigilant magistracy, an if no effect of this kind follow from them, they accurate police, a proper distribution of force counteract in some measure their own design, and intelligence, together with due rewards by sinking men's abhorrence of the crime in for the discovery and apprehenson of malefactheir commiseration of the criminal. But if a tors, and an undeviating impartiality in carrymode of execution could be devised, which ing the laws into execution, contribute more would augment the horror of the punishment, to the restraint and suppression of crimes than without offending or impairing the public sen- any violent exacerbations of punishment. And sibility by cruel or unseemly exhibitions of for the same reason, of all contrivances directdeath, it might add something to the efficacy of ed to this end, those perhaps are most effectual the example: and, by being reserved for a few which facilitate the conviction of criminals. atrocious crimes, might also enlarge the scale of The offence of counterfeiting the coin could punishment; an addition to which seems want-not be checked by all the terrors and the uting; for, as the matter remains at present, you most severity of law, whilst the act of coining hang a malefactor for a simple robbery, and can was necessary to be established by specific do no more to the villain who has poisoned his proof. The statute which made possession of father. Somewhat of the sort we have been the implements of coining capital, that is, describing, was the proposal, not long since which constituted that possession complete suggested, of casting murderers into a den of evidence of the offender's guilt, was the first wild beasts, where they would perish in a man- thing that gave force and efficacy to the dener dreadful to the imagination, yet conceal-nunciations of law upon this subject. The ed from the view. 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. Infamous punishments are mismanaged in this country, with respect both to the crimes and the criminals. In the first place, they ought to be confined to offences which are holden in undisputed and universal detestation. To condemn to the pillory the author or editor It is upon the principle of this observation, of a libel against the state, who has rendered that I apprehend much harm to have been himself the favourite of a party, if not of the done to the community, by the over-strained people, by the very act for which he stands scrupulousness, or weak timidity, of juries, there, is to gratify the offender, and to expose which demands often such proof of a prisoner's the law to mockery and insult. In the se- guilt, as the nature and secrecy of his crime cond place; the delinquents who receive this scarce possibly admit of; and which holds it sentence, are for the most part such as have the part of a safe conscience not to condemn long ceased either to value reputation, or to any man, whilst there exists the minutest posfear shame; of whose happiness, and of whose sibility of his innocence. Any story they may enjoyments, character makes no part. Thus happen to have heard or read, whether real the low ministers of libertinism, the keepers or feigned, in which courts of justice have of bawdy or disorderly houses, are threatened been misled by presumptions of guilt, is enough, in vain with a punishment that affects a sense in their minds, to found an acquittal upon, which they have not; that applies solely to where positive proof is wanting. I do not the imagination, to the virtue and the pride mean that juries should indulge conjectures, of human nature. The pillory, or any other should magnify suspicions into proofs, or even infamous distinction, might be employed right- that they should weigh probabilities in gold ly, and with effect, in the punishment of some scales: but when the preponderation of evioffences of higher life; as of frauds and pecu-dence is so manifest as to persuade every prilation in office; of collusions and connivances, vate understanding of the prisoner's guilt; by which the public treasury is defrauded; of when it furnishes the degree of credibility breaches of trust; of perjury, and subornation upon which men decide and act in all other of perjury; of the clandestine and forbidden sale of places; of flagrant abuses of authority, or neglect of duty; and lastly, of corruption in the exercise of confidential or judicial offices. In all which, the more elevated was the station of the criminal, the more signal and conspicuous would be the triumph of justice. The certainty of punishment is of more consequence than the severity. Criminals do not so much flatter themselves with the lenity of the sentence, as with the hope of escaping. doubts, and which experience hath shown that they may decide and act upon with sufficient safety; to reject such proof, from an insinua. tion of 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 authorised by no considerations of rectitude or utility. It counteracts the care and damps the activity of government; it holds out public encourage MORAL AND POLITICAL PHILOSOPHY. ment to villany, by confessing the impossibility | be pursued, when certain degrees of credibi But when certain rules of adjudication must lity must be accepted, in order to reach the crimes with which the public are infested; There are two popular maxims, which seem the application of these rules by every suspicourts of justice should not be deterred from to have a considerable influence in producing cion of danger, or by the mere possibility of the injudicious acquittals of which we complain. confounding the innocent with the guilty.One is "That circumstantial evidence falls They ought rather to reflect, that he, who falls short of positive proof." This assertion, in the by a mistaken sentence, may be considered as unqualified sense in which it is applied, is not falling for his country; whilst he suffers untrue. A concurrence of well-authenticated cir- der the operation of those rules, by the genecumstances compose a stronger ground of assu- ral effect and tendency of which the welfare rance than positive testimony, unconfirmed by of the community is maintained and uphold. circumstances, usually affords. Circumstances en. 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, CHAPTER X. TOLERATION. the actual instances of deception are fewer, in OF RELIGIOUS ESTABLISHMENTS AND OF the one case than the other. ed positive proof in criminal matters, as where What is calla man swears to the person of the prisoner, and that he actually saw him commit the crime" Christianity: it is only the means of incul"A RELIGIOUS establishment is no part of with which he is charged, may be founded in "cating it." Amongst the Jews, the rights and the mistake or perjury of a single witness. offices, the order, family, and succession of the Such mistakes, and such perjuries, are not priesthood, were marked out by the authoriwithout many examples. Whereas, to impose ty which declared the law itself. These, there. upon a court of justice a chain of circumstan-fore, were parts of the Jewish religion, as well tial evidence in support of a fabricated accusa-as the means of transmitting it. Not so with tion, requires such a number of false witness-the new institution. It cannot be proved that es as seldom meet together; an union also of any form of church-government was laid down skill and wickedness which is still more rare; in the Christian, as it had been in the Jewish and, after all, this species of proof lies much Scriptures, with a view of fixing a constitumore open to discussion, and is more likely, if tion for succeeding ages; and which constitufalse, to be contradicted, or to betray itself by tion, consequently, the disciples of Christianisome unforeseen inconsistency, than that di- ty would every where, and at all times, by the rect proof, which, being confined within the very law of their religion, be obliged to adopt. knowledge of a single person, which, appealing | Certainly, no command for this purpose was to, or standing connected with, no external or delivered by Christ himself; and if it be shown collateral circumstances, is incapable, by its that the apostles ordained bishops and presbyvery simplicity, of being confronted with op-ters amongst their first converts, it must be posite probabilities. were appointed by them, with functions very remembered that deacons also and deaconesses dissimilar to any which obtain in the church at present 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 such offices were at first erected in the ChrisThe truth seems to have been, that better, be meant that it is more for the public tian church, as the good order, the instruction, advantage, the proposition, I think, cannot and the exigencies of the society at that time be maintained. which is essential to the value and the enjoy-out any declared design, of regulating the ap The security of civil life, required, without any intention, at least withment of every blessing it contains, and the pointment, authority, or the distinction, of interruption of which is followed by universal miseryand 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. 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 po licy, as to have formed, in some countries, a more ancient religion of the Jews, is necessaconsiderable obstacle to the progress and re-rily and intimately connected with the sacred ception of the religion itself. The authority therefore of a church-establishment is founded in its utility: and when ever, 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 re"ligious 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 in. to 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. The notion 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 Lerive 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 : writings, with the history and polity of that singular people: to which must be added, that the records of both revelations are preserved in languages which have long ceased to be spoken in any part of the world. Books which come down to us from times so remote, and under so many causes of unavoidable obscurity, cannot, it is evident, be understood without study and preparation. The languages must be learned. The various writings which these volumes contain, must be carefully compared with one another, and with themselves. What remains of contemporary authors, or of authors connected with the age, the country, or the subject of our Scriptures, must be perused and consulted, in order to interpret doubtful forms of speech, and to explain allusions which refer to objects or usages that no longer exist. Above all, the modes of expression, the habits of reasoning and argumentation, which were then in use, and to which the discourses even of inspired teachers were necessarily adapted, must be sufficiently known, and can only be known at all by a due acquaintance with ancient literature. And lastly, to esta blish the genuineness and integrity of the canonical Scriptures themselves, a series of testimony, recognising the notoriety and reception of these books, must be deduced from times near to those of their first publication, down the succession of ages through which they have been transmitted to us. The qualifications necessary for such researches demand, it is confessed, a degree of leisure, and a kind of edu. cation, inconsistent with the exercise of any other profession.-But how few are there amongst the clergy, from whom any thing of this sort can be expected! how small a proportion of their number, who seem likely either to augment the fund of sacred literature or even to collect what is already known!-To 1. The question first in order upon the sub- this objection may be replied, that we sow ject, as well as the most fundamental in its many seeds to raise one flower. In order to importance, is, whether the knowledge and produce a few capable of improving and conprofession of Christianity can be maintained tinuing the stock of Christian erudition, leiin a country without a class of men set apart sure and opportunity must be afforded to great by public authority to the study and teaching numbers. Original knowledge of this kind of religion, and to the conducting of public can never be universal; but it is of the utworship; and for these purposes secluded from most importance, and it is enough, that there other employments. I add this last circum-be, at all times, found some qualified for such stance, because in it consists, as I take it, the inquiries, and in whose concurring and inde substance of the controversy. Now it must be pendent conclusions upon each subject, the remembered, that Christianity is an historical rest of the Christian community may safely religion, founded in facts which are related to confide: whereas, without an order of clergy have passed, upon discourses which were hold-educated for the purpose, and led to the proen, and letters which were written, in a remote age, and distant country of the world, as well as under a state of life and manners, and during the prevalency of opinions, customs, and institutions, very unlike any which are found amongst mankind at present. Moreover, this religion, having been first published in the country of Judea, and being built upon the secution of these studies by the habits, the leisure, and the object, of their vocation, it may well be questioned whether the learning itself would not have been lost, by which the records of our faith are interpreted and defended. We contend, therefore, that an order of clergy is necessary to perpetuate the evidences of Revelation, and to interpret the ob MORAL AND POLITICAL PHILOSOPHY. scurity of those ancient writings, in which the | nally operate to the decay of virtue, and an religion is contained. But besides this, which irrecoverable forgetfulness of all religion in forms, no doubt, one design of their institu- the country. tion, the more ordinary offices of public teach- to fear, that, if it were referred to the discreIs there not too much reason ing, and of conducting public worship, call for tion of each neighbourhood, whether they qualifications not usually to be met with amidst would maintain amongst them a teacher of rethe employments of civil life. It has been ac-ligion or not, many districts would remain un knowledged by some, who cannot be suspect-provided with any; that, with the difficulties ed of making unnecessary concessions in fa- which incumber every measure requiring the vour of establishments, "to be barely possible, co-operation of numbers, and where each in"that a person who was never educated for dividual of the number has an interest secret"the office should acquit himself with decen-ly pleading against the success of the measure 66 cy as a public teacher of religion." And itself, associations for the support of Christian that surely must be a very defective policy worship and instruction would neither be nuwhich trusts to possibilities for success, when merous nor long continued? The devout and provision is to be made for regular and general pious might lament in vain the want or the instruction. Little objection to this argument distance of a religious assembly; they could can be drawn from the example of the Qua- not form or maintain one, without the concur kers, who, it may be said, furnish an experi-rence of neighbours who felt neither their zeal mental proof that the worship and profession nor their liberality. of Christianity may be upholden without a separate clergy. These sectaries every where subsist in conjunction with a regular establishment. They have access to the writings, they profit by the labours, of the clergy, in common with other Christians. They participate in that general diffusion of religious knowledge, which the constant teaching of a more regular ministry keeps up in the country: with such aids, and under such circumstances, the defects of a plan may not be much felt, although the plan itself be altogether unfit for general imitation. would be established and upheld upon the vo From the difficulty with which congregations luntary plan, let us carry our thoughts to the condition of those who are to officiate in them. Preaching, in time, would become a mode of begging. With what sincerity, or with what dignity, can a preacher dispense the truths of Christianity, whose thoughts are perpetually solicited to the reflection how he may increase his subscription? His eloquence, if he possesses any, resembles rather the exhibition of a player who is computing the profits of his theatre, 2. If then an order of clergy be necessary, self the awful expectations of religion, is seekthan the simplicity of a man who, feeling him. if it be necessary also to seclude them from ing to bring others to such a sense and underthe employments and profits of other profes- standing of their duty as may save their souls. sions, it is evident they ought to be enabled Moreover, a little experience of the disposition to derive a maintenance from their own. Now of the common people will in every country this maintenance must either depend upon the inform us, that it is one thing to edify them voluntary contributions of their hearers, or in Christian knowledge, and another to gratify arise from revenues assigned by authority of their taste for vehement, impassioned oratory law. To the scheme of voluntary contribu- that he, not only whose success, but whose tion there exists this insurmountable objec- subsistence, depends upon collecting and pleastion, that few would ultimately contribute any ing a crowd, must resort to other arts than the thing at all. However the zeal of a sect, or acquirement and communication of sober and the novelty of a change, might support such profitable instruction. For a preacher to be an experiment for a while, no reliance could thus at the mercy of his audience: to be obbe placed upon it as a general and permanent liged to adapt his doctrines to the pleasure of a provision. It is at all times a bad constitution, capricious multitude; to be continually affectwhich presents temptations of interest in op- ing a style and manner neither natural to him, position to the duties of religion; or which nor agreeable to his judgment; to live in conmakes the offices of religion expensive to those stant bondage to tyrannical and insolent diwho attend upon them; or which allows pre-rectors; are circumstances so mortifying, not tences of conscience to be an excuse for not only to the pride of the human heart, but to sharing in a public burthen. If, by declining the virtuous love of independency, that they to frequent religious assemblies, men could save their money, at the same time that they indulged their indolence, and their disinclination to exercises of seriousness and reflection; or, if by dissenting from the national religion, they could be excused from contributing to the support of the ministers of religion; it is to be feared that many would take advantage of the option which was thus imprudently left open to them, and that this liberty might fi are rarely submitted to without a sacrifice of be admitted, that a legal provision for the |