yet the mitigation of punishment, the exercise of lenity, may without danger be intrusted to the executive magistrate, whose discretion will operate upon those numerous, unforeseen, mutable, and indefinite circumstances, 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 some the public safety required to suffer; or some would undergo this punishment, where it was neither deserved nor necessary. For if judgment of death were reserved for one or two species of crimes only (which would probably be the case if that judg ment was intended to be executed without exception,) crimes might occur of the most dangerous example, and accompanied with circumstances of heinous aggravation, which did not fall within any description of offences that the laws had made capital, and which consequently could not receive the punishment their own malignity and the public safety required.-What is worse, it would be known before-hand, that such crimes might be committed without danger to the offender's life. On the other hand, if to reach these possible cases, the whole class of offences to which they belong be subjected to pains of death, and no power of remitting this severity remain any where, the execution of the laws will become more sanguinary than the public compassion would endure, or than is necessary to the general security. From the justice of God, we are taught to look, for a gradation of punishment exactly proportioned to the guilt of the offender: when therefore, in assigning the degrees of human punishment, we introduce considerations distinct from that guilt, and a proportion so varied by external circumstances, that equal crimes frequently undergo unequal punishments, or the less crime the greater: it is natural to demand the reason why a different mea-offenders would escape capital punishment, whom sure of punishment should be expected from God, and observed by man; why that rule, which befits the absolute and perfect justice of the Deity, should not be the rule which ought to be pursued and imitated by human laws.-The solution of this difficulty must be sought for in those peculiar attributes of the Divine nature, which distinguish the dispensations of Supreme Wisdom from the proceedings of human judicature. A being whose knowledge penetrates every concealment, from the operation of whose will no art or flight can escape, and in whose hands punishment is sure; such a Being may conduct the moral government of his creation, in the best and wisest manner, by pronouncing a law that every crime shall finally receive a punishment proportioned to the guilt which it contains, abstracted from any foreign consideration whatever; and may testify his veracity to the spectators of his judgments, by carrying this law into strict execution. But when the care of the public safety is intrusted to men, whose authority over their fellow-creatures is limited by defects of power and knowledge; from whose utmost vigilance and sagacity the greatest offenders often lie hid; whose wisest precautions and speediest pursuit may be eluded by artifice or concealment; a different necessity, a new rule of proceeding, results from the very imperfection of their faculties. In their hands, the uncertainty of punishment must be compensated by the severity. The ease with which crimes are committed or concealed, must be counteracted by additional penalties and increased terrors. The very end for which human government is established, requires that its regulations be adapted to the suppression of crimes. This end, whatever it may do in the plans of Infinite Wisdom, does not, in the designation of temporal penalties, always coincide with the proportionate punishment of guilt. There are two methods of administering penal justice. The first method assigns capital punishment to few offences, and inflicts it invariably. The second method assigns capital punishment to many kinds of offences, but inflicts it only upon a few examples of each kind. The law of England is constructed upon a different and a better policy. By the number of statutes creating capital offences, it sweeps into the net every crime which, under any possible circumstances, may merit the punishment of death: but when the execution of this sentence comes to be deliberated upon, a small proportion of each class are singled out, the general character, or the peculiar aggravations of whose crimes, render them fit examples of public justice. By this expedient, few actually suffer death, whilst the dread and danger of it hang over the crimes of many. The tenderness of the law cannot be taken advantage of. The life of the subject is spared as far as the necessity of restraint and intimidation permits; yet no one will adventure upon the commission of any enormous crime, from a knowledge that the laws have not provided for its punishment. The wisdom and humanity of this design furnish a just excuse for the multiplicity of capital offences, which the laws of England are accused of creating beyond those of other countries. The charge of cruelty is answered by observing, that these laws were never meant to be carried into indiscriminate execution; that the legislature, when it establishes its last and highest relax their severity as often as circumstances appear to palliate the offence, or even as often as those circumstances of aggravation are wanting which rendered this rigorous interposition necessary. Upon this plan, it is enough to vindicate the lenity of the laws, that some instances are to be found in each class of capital crimes, which require the restraint of capital punishment, and that this restraint could not be applied without subjecting the whole class to the same condemnation. The latter of which two methods has been long adopted in this country, where, of those who receive sentence of death, scarcely one in ten is exe-sanctions, trusts to the benignity of the crown to cuted. And the preference of this to the former method seems to be founded in the consideration, that the selection of proper objects for capital punishment principally depends upon circumstances, which, however easy to perceive in each particular case after the crime is committed, it is impossible to enumerate or define beforehand; or to ascertain however with that exactness which is requisite in legal descriptions. Hence, although it be necessary to fix by precise rules of law the boundary on one side, that is, the limit to which the punishment may be extended; and also that nothing less than the authority of the whole legislature be suffered to determine that boundary, and assign these rules; | There is however one species of crimes, the making of which capital, can hardly, I think, be defended even upon the comprehensive principle just now stated:-I mean that of privately steal joined him in the felony; not so much on account of any distinction in the guilt of the offenders, as for the sake of casting an obstacle in the way of such confederacies, by rendering it difficult for the confederates to settle who shall begin the attack, or to find a man amongst their number willing to expose himself to greater danger than his associates. This is another instance in which the punishment which expediency directs, does not pursue the exact proportion of the crime. Injuries effected by terror and violence, are those which it is the first and chief concern of legal go ing from the person. As every degree of force is excluded by the description of the crime, it will be difficult to assign an example, where either the amount or circumstances of the theft place it upon a level with those dangerous attempts to which the punishment of death should be confined. It will be still more difficult to show, that, without gross and culpable negligence on the part of the sufferer, such examples can ever become so frequent, as to make it necessary to constitute a class of capital offences, of very wide and large extent. The prerogative of pardon is properly reserved to the chief magistrate. The power of suspend-vernment to repress; because their extent is uning the laws is a privilege of too high a nature to limited; because no private precaution can protect be committed to many hands, or to those of any the subject against them; because they endanger inferior officer in the state. The king also can life and safety, as well as property; and lastly, bebest collect the advice by which his resolutions cause they render the condition of society wretched, should be governed: and is at the same time re- by a sense of personal insecurity. These reasons moved at the greatest distance from the influence do not apply to frauds which circumspection may of private motives. But let this power be de- prevent; which must wait for opportunity; which posited where it will, the exercise of it ought to can proceed only to certain limits; and by the be regarded, not as a favour to be yielded to so apprehension of which, although the business of licitation, granted to friendship, or, least of all, to life be incommoded, life itself is not made miserabe made subservient to the conciliating or gratify-ble. The appearance of this distinction has led ing of political attachments, but as a judicial act; as a deliberation to be conducted with the same character of impartiality, with the same exact and diligent attention to the proper merits and circumstances of the case, as that which the judge upon the bench was expected to maintain and show in the trial of the prisoner's guilt. The questions, whether the prisoner be guilty, and whether, being guilty, he ought to be executed, are equally questions of public justice. The adjudication of the latter question is as much a function of magistracy, as the trial of the former. The public welfare is interested in both. The conviction of an offender should depend upon nothing but the proof of his guilt; nor the execution of the sentence upon any thing beside the quality and circumstances of his crime. It is necessary to the good order of society, and to the reputation and authority of government, that this be known and believed to be the case in each part of the proceeding. Which reflections show, that the admission of extrinsic or oblique considerations, in dispensing the power of pardon, is a crime, in the authors and advisers of such unmerited partiality, of the same nature with that of corruption in a judge. some humane writers to express a wish, that capital punishments might be confined to crimes of violence. In estimating the comparative malignancy of crimes of violence, regard is to be had, not only to the proper and intended mischief of the crime, but to the fright occasioned by the attack, to the general alarm excited by it in others, and to the consequences which may attend future attempts of the same kind. Thus, in affixing the punishment of burglary, or of breaking into dwelling-houses by night, we are to consider not only the peril to which the most valuable property is exposed by this crime, and which may be called the direct mischief of it, but the danger also of murder in case of resistance, or for the sake of preventing discovery; and the universal dread with which the silent and defenceless hours of rest and sleep must be disturbed, were attempts of this sort to become frequent; and which dread alone, even without the mischief which is the object of it, is not only a public evil, but almost of all evils the most insupportable. These circumstances place a difference between the breaking into a dwellinghouse by day, and by night; which difference obtains in the punishment of the offence by the law of Moses, and is probably to be found in the judicial codes of most countries, from the earliest ages to the present. Aggravations, which ought to guide the magistrate in the selection of objects of condign punishment, are principally these three,-repetition, cruelty, combination. The first two, it is Of frauds, or of injuries which are effected manifest, add to every reason upon which the without force, the most noxious kinds are,justice or the necessity of rigorous measures can forgeries, counterfeiting or diminishing of the be founded; and with respect to the last circum-coin, and the stealing of letters in the course of stance, it may be observed, that when thieves and robbers are once collected into gangs, their violence becomes more formidable, the confederates more desperate, and the difficulty of defending the pub-cial life, but are essential to the prosperity, and lic against their depredations much greater, than in the case of solitary adventurers. Which several considerations compose a distinction that is properly adverted to, in deciding upon the fate of convicted malefactors. In crimes, however, which are perpetrated by a multitude, or by a gang, it is proper to separate, in the punishment, the ringleader from his followers, the principal from his accomplices, and even the person who struck the blow, broke the lock, or first entered the house, from those who their conveyance; inasmuch as these practices tend to deprive the public of accommodations, which not only improve the conveniencies of so even the existence, of commerce. Of these crimes it may be said, that although they seem to affect property alone, the mischief of their operation does not terminate there. For let it be supposed, that the remissness or lenity of the laws should, in any country, suffer offences of this sort to grow into such a frequency, as to render the use of money, the circulation of bills, or the public conveyance of letters, no longer safe or practicable; what would follow, but that every species of trade and of activity must decline under these dis The obtaining of money by secret threats, whether we regard the difficulty with which the crime is traced out, the odious imputations to which it may lead, or the profligate conspiracies that are sometimes formed to carry it into execu tion, deserves to be reckoned amongst the worst species of robbery. couragements; the sources of subsistence fail, by | we shall be brought, probably, to agree with the which the inhabitants of the country are sup- opinion of those who contend that perjury, in its ported; the country itself, where the intercourse punishment, especially that which is attempted in of civil life was so endangered and defective, be solemn evidence, and in the face of a court of jusdeserted; and that, beside the distress and poverty tice, should be placed upon a level with the most which the loss of employment would produce to flagitious frauds. the industrious and valuable part of the existing community, a rapid depopulation must take place, each generation becoming less numerous than the last; till solitude and barrenness overspread the land; until a desolation similar to what obtains in many countries of Asia, which were once the most civilized and frequented parts of the world, succeed in the place of crowded cities, of cultivated fields, of happy and well peopled regions?-When therefore we carry forwards our views to the more distant, but not less certain consequences of these crimes, we perceive that, though no living creature be destroyed by them, yet human life is diminished: that an offence, the particular consequence of which deprives only an individual of a small portion of his property, and which even in its general tendency seems to do nothing more than obstruct the enjoyment of certain public conveniencies, may nevertheless, by its ultimate effects, conclude in the laying waste of human existence. This observation will enable those who regard the divine rule of "life for life, and blood for blood," as the only authorized and justifiable measure of capital punishment, to perceive, with respect to the effects and quality of the actions, a greater resemblance than they suppose to exist between certain atrocious frauds, and those crimes which attack personal safety. The frequency of capital executions in this country owes it necessity to three causes;—much liberty, great cities, and the want of a punishment short of death, possessing a sufficient degree of terror. And if the taking away of the life of male factors be more rare in other countries than in ours, the reason will be found in some difference in these articles. The liberties of a free people, and still more the jealousy with which these liberties are watched, and by which they are preserved, permit not those precautions and restraints, that inspection, scrutiny, and control, which are exercised with success in arbitrary governments. For example, neither the spirit of the laws, nor of the people, will suffer the detention or confinement of suspected persons, without proofs of their guilt, which it is often impossible to obtain; nor will they allow that masters of families be obliged to record and render up a description of the strangers or inmates whom they entertain; nor that an account be demanded, at the pleasure of the magisIn the case of forgeries, there appears a sub- trate, of each man's time, employment, and means stantial difference between the forging of bills of of subsistence; nor securities to be required when exchange, or of securities which are circulated, these accounts appear unsatisfactory or dubious; and of which the circulation and currency are nor men to be apprehended upon the mere sugfound to serve and facilitate valuable purposes of gestion of idleness or vagrancy; nor to be concommerce; and the forging of bonds, leases, fined to certain districts; nor the inhabitants of mortgages, or of instruments which are not com- each district to be made responsible for one monly transferred from one hand to another; be- another's behaviour; nor passports to be exacted cause in the former case, credit is necessarily from all persons entering or leaving the kingdom: given to the signature; and without that credit the least of all will they tolerate the appearance of an negotiation of such property could not be carried armed force, or of military law; or suffer the streets on, nor the public utility, sought from it, be at- and public roads to be guarded and patrolled by tained in the other case, all possibility of deceit soldiers; or lastly, intrust the police with such dismight be precluded, by a direct communication cretionary powers, as may make sure of the guilty, between the parties, or by due care in the choice however they involve the innocent. These exof their agents, with little interruption to busi-pedients, although arbitrary and rigorous, are ness, and without destroying, or much encumbering the uses for which these instruments are calculated. This distinction I apprehend to be not only real, but precise enough to afford a line of division between forgeries, which as the law now stands, are almost universally capital, and punished with undistinguishing severity. many of them effectual: and in proportion as they render the commission or concealment of crimes more difficult, they subtract from the necessity of severe punishment.-Great cities multiply crimes, by presenting easier opportunities, and more incentives to libertinism, which in low life is commonly the introductory stage to other enormities; Perjury is another crime, of the same class and by collecting thieves and robbers into the same magnitude. And, when we consider what re- neighbourhood, which enables them to form comlance is necessarily placed upon oaths; that all munications and confederacies, that increase their judicial decisions proceed upon testimony; that art and courage, as well as strength and wickedconsequently there is not a right that a man pos-ness; but principally by the refuge they afford to sesses, of which false witnesses may not deprive villany, in the means of concealment, and of subhim; that reputation, property, and life itself, lie sisting in secrecy, which crowded towns supply to open to the attempts of perjury; that it may often men of every description. These temptations and be committed without a possibility of contradic-facilities can only be counteracted by adding to tion or discovery; that the success and prevalency of this vice tend to introduce the most grievous and fatal injustice into the administration of human affairs, or such a distrust of testimony as must create universal embarrassment and confusion-when we reflect upon these mischiefs, the number of capital punishments.-But a third cause, which increases the frequency of capital executions, in England, is, a defect of the laws, in not being provided with any other punishment than that of death, sufficiently terrible to keep offenders in awe. Transportation, which is the sentence second in the order of severity, appears | to me to answer the purpose of example very imperfectly not only because exile is in reality a slight punishment to those who have neither property, nor friends, nor reputation, nor regular means of subsistence, at home; and because their situation becomes little worse by their crime, than it was before they committed it; but because the punishment, whatever it be, is unobserved and unknown. A transported convict may suffer under his sentence, but his sufferings are removed from the view of his countrymen: his misery is unseen; his condition strikes no terror into the minds of those for whose warning and admonition it was intended. This chasm in the scale of punishment produces also two farther imperfections in the administration of penal justice; the first is, that the same punishment is extended to crimes of very different character and malignancy: the second, that punishments separated by a great interval, are assigned to crimes hardly distinguishable in their guilt and mischief. 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 expectation 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 repeated often. ployment, or who has been distressed by the want of it. When jails are once provided for the sepa rate confinement of prisoners, which both proposals require, the choice between them may soon be determined by experience. If labour be exacted, I would leave the whole, or a portion, of the earnings to the prisoner's use, and I would debar him from any other provision or supply; that his subsistence, however coarse and penurious, may be proportioned 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 excite 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 perhaps too invariably and indiscriminately adhered to, no one will receive a man or woman out of a jail, into any service or employment whatever. This is the common misfortune of public punishment, 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 prisoners might not, after the term of their confinement was expired, be distributed in the country, detained within certain limits, and employed upon the public roads; and females be remitted to the overseers of country parishes, to be there furnished with dwellings, and with the materials and implements of occupation;-whether by these, or by what other methods, 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 excruOf the reforming punishments which have not ciating or long-continued, receives the name of yet been tried, none promises so much success as torture, unless it be designed to kill the criminal that of solitary imprisonment, or the confinement by a more lingering death; or to extort from him of criminals in separate apartments. This im- the discovery of some secret, which is supposed to provement augments the terror of the punish-lie concealed in his breast. The question by torment; secludes the criminal from the 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. As aversion to labour is the cause from which half of the vices of low life deduce their origin and continuance, punishments ought to be contrived with a view to the conquering of this disposition. Two opposite expedients have been recommended for this purpose; the one, solitary confinement with hard labour; the other, solitary confinement with nothing to do. Both expedients seek the same end-to reconcile 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 em ture appears to be equivocal in its effects: for since extremity of pain, and not any conscious-ness of remorse in the mind, produces those effects: an innocent man may sink under the torment, as well as he who is guilty. The latter has as much to fear from yielding, as the former. The instant 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 information in criminal proceedings, liable to the risk of griev ous 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. Barbarous spectacles of human agony are justly found fault with, as tending to harden and deprave the public feelings, and to destroy that sympathy 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 with which the sufferings of our fellow-creatures | facilitate the conviction of criminals. The offence ought always to be seen; or, if no effect of this of counterfeiting the coin could not be checked kind follow from them, they counteract in some by all the terrors and the utmost severity of law, measure their own design, by sinking men's ab- whilst the act of coining was necessary to be es horrence of the crime in their commiseration of tablished by specific proof. The statute which the criminal. But if a mode of execution could be made possession of the implements of coining devised, which would augment the horror of the capital, that is, which constituted that possession punishment, without offending or impairing the complete evidence of the offender's guilt, was the public sensibility by cruel or unseemly exhibitions first thing that gave force and efficacy to the deof death, it might add something to the efficacy nunciations of law upon this subject. The statute of the example: and, by being reserved for a few of James the First, relative to the murder of basatrocious crimes, might also enlarge the scale of tard children, which ordains that the concealment punishment; an addition to which seems want- of the birth should be deemed incontestable proof ing; for, as the matter remains at present, you of the charge, though a harsh law, was, in like hang a malefactor for a simple robbery, and can manner with the former, well calculated to put a do no more to the villain who has poisoned his stop to the crime. father. Somewhat of the sort we have been describing, was the proposal, not long since suggested, of casting murderers into a den of wild beasts, where they would perish in a manner dreadful to the imagination, yet concealed from the view. It is upon the principle of this observation, that I apprehend much harm to have been done to the community, by the over-strained 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 Infamous punishments are mismanaged in which holds it the part of a safe conscience not this country, with respect both to the crimes and to condemn any man, whilst there exists the the criminals. In the first place, they ought to minutest possibility of his innocence. Any story be confined to offences which are holden in un- they may happen to have heard or read, whether disputed and universal detestation. To condemn real or feigned, in which courts of justice have to the pillory the author or editor of a libel against been misled by presumptions of guilt, is enough, the state, who has rendered himself the favourite in their minds, to found an acquittal upon, where of a party, if not of the people, by the very act for positive proof is wanting. I do not mean that which he stands there, is to gratify the offender, juries should indulge conjectures, should magnify and to expose the law to mockery and insult. In suspicions into proofs, or even that they should the second place; the delinquents who receive weigh probabilities in gold scales: but when the this sentence, are for the most part such as have preponderation of evidence is so manifest as to long ceased either to value reputation, or to fear persuade every private understanding of the prisonshame; of whose happiness, and of whose en-er's guilt; when it furnishes the degree of credijoyments, character makes no part. Thus the low ministers of libertinism, the keepers of bawdy or disorderly houses, are threatened in vain with a punishment that affects a sense which they have not; that applies solely to the imagination, to the virtue and the pride of human nature. The pillory, or any other infamous distinction, might be employed rightly, and with effect, in the punishment of some offences of higher life; as of frauds and peculation in office; of collusions and connivances, by which the public treasury is defrauded; of breaches of trust; of perjury, and subornation 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. bility 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 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 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 The certainty of punishment is of more con- is:-"That circumstantial evidence falls short of sequence than the severity. Criminals do not so positive proof." This assertion, in the unqualified much flatter themselves with the lenity of the sense in which it is applied, is not true. A consentence, as with the hope of escaping. They currence of well-authenticated circumstances comare not so apt to compare what they gain by the pose a stronger ground of assurance than positive crime with what they may suffer from the punish-testimony, unconfirmed by circumstances, usually ment, as to encourage themselves with the chance of concealment or flight. For which reason, a vigilant magistracy, an accurate police, a proper distribution of force and intelligence, together with due rewards for the discovery and apprehension of malefactors, and an undeviating impartiality in carrying the laws into execution, contribute more to the restraint and suppression of crimes than any violent exacerbations of punishment. And, for the same reason, of all contrivances directed to this end, those perhaps are most effectual which 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 per |