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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 sanctions, trusts to the benignity of the crown to 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.
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 stealing 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 suspending the laws is a privilege of too high a nature to be committed to many hands, or to those of any inferior officer in the state. The king also can best collect the advice by which his resolutions shall be governed; and is at the same time removed at the greatest distance from the influence of private motives. But let this power be deposited where it will, the exercise of it ought to be regarded, not as a favour to be yielded to solicitation, granted to
friendship, or, least of all, to be made subservient to the conciliating or gratifying 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 the 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.
Aggravations which ought to guide the magis trate in the selection of objects of condign punishment, are principally these three,-repetition, cruelty, combination. The first two, it is manifest, add to every reason upon which the justice or the necessity of rigorous measures can be founded; and with respect to the last circumstance, 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 public 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 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 government to repress; because their extent is unlimited; because no private precaution can protect the subject against them; because they endanger life and safety, as well as property; and lastly, because they render the condition of society wretched, by a sense of personal insecurity. These reasons do not apply to frauds which circumspection may prevent; which must wait for opportunity; which can proceed only to certain limits; and by the apprehension of which, although the business of life be incommoded, life itself is not made miserable.The appearance of this distinction has led 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 punishing 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 dwelling-house 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.
Of frauds, or of injuries which are effected without force, the most noxious kinds are,-forgeries, counterfeiting or diminishing of the coin, and the stealing of letters in the course of their convey. ance; inasmuch as these practices tend to deprive the public of accommodations, which not only im prove the conveniences of social life, but are essential to the prosperity, and 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 discouragements; 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, suc ceed 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 diminish
ed; 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 conveniences, 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.
In the case of forgeries, there appears a substantial difference between the forging of bills of exchange, or of securities which are circulated, and of which the circulation and currency are found to serve and facilitate valuable purposes of commerce; and the forging of bonds, leases, mortgages; or of instruments which are not commonly transferred from one hand to another; because in the former case, credit is necessarily given to the signature, and without that credit the negotiation of such property could not be carried on, nor the public utility, sought from it, be attained in the other case, all possibility of deceit might be precluded, by a direct communication between the parties, or by due care in the choice of their agents, with little interruption to business, 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.
Perjury is another crime of the same class and magnitude. And, when we consider what reliance is necessarily placed upon oaths; that all judicial decisions proceed upon testimony; that consequently there is not a right that a man possesses, of which false witnesses may not deprive him; that reputation, property and life itself, lie open to the attempts of perjury; that it may often be commit