.

her fubjects. These are the men affigned to review judgments of law, pronounced by fages of the profeffion, who have spent their lives in the ftudy and practice of the jurifprudence of their country. Such is the order which our ancestors have eftablished. The effect only proves the truth of this maxim, << that when a fingle inftitution is extremely diffon"ant from other parts of the fyftem to which it << belongs, it will always find fome way of reconciling itself to the analogy which governs and per"vades the reft." By conftantly placing in the House of Lords fome of the moft eminent and experienced lawyers in the kingdom; by calling to their aid the advice of the judges, when any abstract queftion of law awaits their determination; by the almost implicit and undifputed deference, which the uninformed part of the houfe find it neceffary to pay to the learning of their colleagues, the appeal to the Houfe of Lords becomes in fact an appeal to the collected wisdom of our fupreme courts of juftice: receiving indeed folemnity, but little perhaps of direction, from the prefence of the affembly in which it is heard and determined.

Thefe, however, even if real, are minute imperfections. A politician, who fhould fit down to delineate a plan for the difpenfation of public juftice, guarded against all accefs to influence and corruption, and bringing together the feparate advantages of knowledge and impartiality, would find, when he had done, that he had been tranfcribing the judicial conftitution of England. And it may teach the most discontented amongst us to acquiefce in the government of his country, to reflect, that the pure, and wife, and equal adminiftration of the laws, forms the first end and bleffing of focial union; and that this bleffing is enjoyed by him in a perfection, which he will feck in vain, in any other nation of the world,

CHAP,

С НА Р.

IX.

OF CRIMES AND PUNISHMENTS.

TH

The

HE proper end of human punishment is, not the fatisfaction of juftice, but the prevention of crimes. By the fatisfaction of juftice, I mean the retribution of fo 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 fenfe, or whether with truth in any fenfe, juftice may be faid to demand the punishment of offenders I do not now inquire; but I af fert 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? fear left the efcape 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 authorizes the infliction of punifhment 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 reafon, that crimes are not by any governn ent punished in proportion to their guilt, nor in all cafes ought to be fo, 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

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 miuft 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 alfo 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, thefe laws have flept: and an execution under them at this day would be deemed a measure of unjuftifiable 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 modera naiions, namely, that breaches of truft are either not punished at all, or punifhed with lefs rigour than other frauds.-Wherefore is it, fome have afked, that a violation of confidence, which increafes the guilt, fhould mitigate the penalty? This lenity, or rather forbearance of the laws, is founded in the moft reasonable diftinction. A due circumfpection in the choice of tlie 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 defeription: and

the

the law will not interpofe its fanctions, to protec negligence and credulity, or to fupply the place of domeftic 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-house of his mafter, or upon property to which he must neceffa rily have accefs, the fentence of the law is not less 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, horse-stealing, 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 tranfportation, 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 measure of the punishment; but is a confiftent and regular confequence of the fuppofition, that the right of punishment refults from the neceflity of preventing the crime for if this be the end propofed, the feverity of the punishment muft 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 circumstance to be included in the fame confideration. It conftitutes indeed, with refpect to the crime, the facility of which we fpeak. By how much therefore the deution of an offender is more rare and uncertain,

by

by so 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 punishment, 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 asfigning the degrees of human punishment, we introduce confiderations distinct from that guilt, and a proportion fo varied by external circumftances, that equal crimes frequently undergo unequal punishments, or the less crime the greater; it is natural to demand the reafon why a different measure of punishment fhould 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 pursued and imitated by human laws? The folution of this difficulty must be fought for in thofe peculiar attributes of the divine nature, which diftinguifh the difpenfations of fupreme wisdom from the proceedings of human judicature. A Being whose 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 entrufted 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 of ten lie hid; whofe wifeft precautions and fpeediest purfuit may be eluded by artifice or concealment; a different