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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.

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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 mane 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 dif ference 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 spe cies 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 th 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 de therefore we carry forwards our views to the more Qu distant, but not less certain, consequences of these of 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 porion of his property, and which even in its general endency seems to do nothing more than obstruct he 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 auhorized 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

ted without a possibility of contradiction or disco very; that the success and prevalency of this vice tend to introduce the most grievous and fatal injust tice into the administration of human affairs, or such a distrust of testimony as must create univer sal embarrassment and confusion:-when we re-r flect upon these mischiefs, 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 u 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, whe ther 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, de serves to be reckoned amongst the worst species of robbery.

The frequency of capital executions in this coun try, owes its necessity to three causes;-much liberty, great cities, and the want of a punishment short of death, possessing a sufficient degree of ter ror. 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 inspe tion, scrutiny, and control, which are exercised with success in arbitrary governments. For ex ample, neither the spirit of the laws, nor of the people, will suffer the detention or confinement suspected persons, without proofs of their guilt which it is often impossible to obtain; nor wil they allow that masters of families be obliged t record and render up a description of the stranger or inmates whom they entertain; nor that an a count be demanded, at the pleasure of the mag strate, of each man's time, employment, and mea of subsistence; nor securities to be required whe these accounts appear unsatisfactory or dubiou nor men to be apprehended upon the mere sugges sion of idleness or vagrancy; nor to be confined t

certain districts; nor the inhabitants of each district to be made responsible for one another's behaviour: nor passports to be exacted from all persons entering or leaving the kingdom: least of all will they tolerate the appearance of an armed force, or of military law; or suffer the streets and public roads to be guarded and patrolled by soldiers; or, lastly, intrust the police with such discretionary powers, as may make sure of the guilty, however they involve the innocent. These expedients, although arbitrary and rigorous, are 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; by collecting thieves and robbers into the same neighbourhood, which enables them to form communications and confederacies, that increase their art and courage, as well as strength and wickedness; but principally by the refuge they afford to viliany, in the means of concealment, and of subsisting in secrecy, which crowded towns supply to men of every description. These temptations and facilities can only be counteracted by adding to 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

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