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 grievous 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 jurispru dence 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 with which the sufferings of our fellow creatures ought always to be seen; or, if no effect of this kind follow from them, they counteract in some measure their own design, by sinking men's abhorrence of the crime in their commiseration of the criminal. But if a mode of execution could be devised, which would augment the horror of the punishment, without offending or impairing the public sensibility by cruel or unseemly exhibitions of death, it might add something to the efficacy of the example; and by being reserved for a few atrocious crimes, might also enlarge the scale of punishment; an addition to which seems wanting; for, as the matter remains at present, you hang a malefactor for a simple robbery, and can do no more to the villian who has poisoned his 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.

Infamous punishments are mismanaged in this country, with respect both to the crimes and the criminals. In the first place, they ought to be confined to offences, which are held in undisputed and universal detestation. To condemn to the pillory the author or editor of a libel against the state, who has rendered himself the favourite of a party, if not of the people, by the very act for which he stands there, is to

gratify the offender, and to expose the laws to mockery and insult. In the second place, the delinquents who receive this sentence are, for the most part, such as have long ceased either to value reputation, or to fear shame; of whose happiness, and of whose enjoyments, 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.

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 punishment, 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 im partiality 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 facilitate the conviction of criminals. The offence of counterfeiting the coin could not be checked by all the terrors and the utmost severity of the law, whilst the act of coining was necessary to be established by

specific proof. The statute which made the possession of the implements of coining capital, that is, which constituted that possession complete evidence of the offenders's guilt, was the first thing that gave force and efficacy to the denunciations of law upon this subject. The statute of JAMES the First, relative to the murder of bastard children, which ordains that the concealment of the birth should be deemed incontestable proof of the charge, though a harsh law, was, in like manner with the former, well calculated to put a stop to the crime.

It is upon the principle of this observation, that I apprehend much harm to have been done to the community, by the overstrained 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 which holds it the part of a safe conscience not to condemn any man, whilst there exists the minutest possibility of his innocence. Any story they may happen to have heard or read, whether real or feigned, in which courts of justice have been misled by presumptions of guilt, is enough, in their minds, to found an acquittal upon, where positive proof is wanting. I do not mean that juries should indulge conjectures, should magnify suspicions into proofs, or even that they should weigh probabilities in gold scales; but when the preponderation of evidence is so manifest, as to persuade every private understanding of the prisoner's guilt; when it furnishes that degree of credibility, 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 to its own quiet, is authorized 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

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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 composes a stronger ground of assurance than positive testimony, uncon-firmed by circumstances, usually 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 withess. 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 perjury 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 circumstances, is incapable, by its very simplicity, of being confronted with opposite probabilities.

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 enjoy ment of every blessing it contains, and the interruption of which is followed by universal 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 upheld.

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