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; some humane writers to express a wish, that as a deliberation to be conducted with the same capital punishments might be confined to crimes character of impartiality, with the same exact and of violence. 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.

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 aflixing 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 their conveyance; inasmuch as these practices robbers are once collected into gangs, their violence tend to deprive the public of accommodations, becomes more formidable, the confederates more which not only improve the conveniencies of sodesperate, 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

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

couragements; the sources of subsistence fail, by which the inhabitants of the country are supported; the country itself, where the intercourse of civil life was so endangered and defective, be deserted; and that, beside the distress and poverty which the loss of employment would produce to 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 he 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.

we shall be brought, probably, to agree with the opinion of those who contend that perjury, in its punishment, especially that which is attempted in solemn evidence, and in the face of a court of justice, should be placed upon a level with the most flagitious frauds.

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 execution, deserves to be reckoned amongst the worst species of robbery.

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 malefactors 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 magis

In 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 cxof their agents, with little interruption to busi-pedients, although arbitrary and rigorous, are ness, and without destroying, or much encumber- many of them effectual: and in proportion as they ing, the uses for which these instruments are cal-render the commission or concealment of crimes culated. 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.

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 comhance 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 the number of capital punishments.-But a third 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,

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 | ployment, or who has been distressed by the want

Of the reforming punishments which have not yet been tried, none promises so much success as that of solitary imprisonment, or the confinement of criminals in separate apartments. This improvement 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.

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 prisonsame; 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 punishrent 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 is:-"That circumstantial evidence falls short of positive proof." This assertion, in the unqualified sense in which it is applied, is not true. A concurrence of well-authenticated circumstances compose a stronger ground of assurance than positive

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. They are not so apt to compare what they gain by the 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 aay violent exacerbations of punishment. And, bar 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

presbyters amongst their first converts, it must be remembered that deacons also and deaconesses were appointed by them, with functions very dissimilar to any which obtain in the church at present. The truth seems to have been, that such offices were at first erected in the Christian church, as the good order, the instruction, and the exigencies of the society at that time required, without any intention, at least without any declared design, of regulating the appointment, authority, or the distinction, of Christian ministers under future circumstances. This reserve, if we may so call it, in the Christian Legis

jury of a single witness.-Such mistakes, and such perjuries, are not without many examples. Whereas, to impose upon a court of justice a chain of circumstantial evidence in support of a fabricated accusation, requires such a number of false witnesses as seldom meet together; an union also of skill and wickedness which is still more rare; and, after all, this species of proof lies much more open to discussion, and is more likely, if false, to be contradicted, or to betray itself by some unforeseen inconsistency, than that direct proof, which, being confined within the knowledge of a single person, which, appealing to, or standing connected with, no external or collateral circum-lator, is sufficiently accounted for by two considerstances, is incapable, by its very simplicity, of being confronted with opposite probabilities.

ations:-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 policy, as to have formed, in some countries, a considerable obstacle to the progress and reception of the reli

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 better, be meant that it is more for the public advantage, the proposition, I think, cannot be maintained. The security of civil life, which is essential to the value and the enjoyment of every blessing it contains, and the interruption of which is followed by uni-gion itself. versal misery and 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.

But when certain rules of adjudication must be pursued, when certain degrees of credibility must be accepted, in order to reach the crimes with which the public are infested; courts of justice should not be deterred from the application of these rules by every suspicion of danger, or by the mere possibility of confounding the innocent with the guilty.-They ought rather to reflect, that he who falls by a mistaken sentence, may be considered as falling for his country; whilst he suffers under the operation of those rules, by the general effect and tendency of which the welfare of the community is maintained and upholden.

CHAPTER X.

Of Religious Establishments and of Toleration. "A RELIGIOUS establishment is no part of Christianity: it is only the means of inculcating it." Amongst the Jews, the rights and offices, the order, family, and succession of the priesthood, were marked out by the authority which declared the law itself. These, therefore, were parts of the Jewish religion, as well as the means of transmitting it. Not so with the new institution. It cannot be proved that any form of church-government was laid down in the Christian, as it had been in the Jewish Scriptures, with a view of fixing a constitution for succeeding ages; and which constitution, consequently, the disciples of Christianity would every where, and at all times, by the very law of their religion, be obliged to adopt. Certainly, no command for this purpose was delivered by Christ himself; and if it be shown that the apostles ordained bishops and

The authority therefore of a church-establishment is founded in its utility: and whenever, upon this principle, we deliberate concerning the form, propriety, or comparative excellency of dif erent 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 religious 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 into 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 derive from the voluntary which the laws assign to the support of religion contribution of their hearers; or if the provision 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:

1. The question first in order upon the subject, as well as the most fundamental in its importance, is, whether the knowledge and profession of Christianity can be maintained in a country without a class of men set apart by public authority to the study and teaching of religion, and to the conducting of public worship; and for these purposes secluded from other employments. I add this last circumstance, because in it consists, as I take it, the substance of the controversy. Now it must be remembered, that Christianity is an historical