OF CRIMES AND PUNISHMENTS.

453 of James the Firft, relative to the murder of baftard child ren, which ordains that the concealment of the birth fhould be deemed inconteftible 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 obfervation, that I apprehend much harm to have been done to the community, by over-ftrained fcrupuloufnefs, or weak timidity of juries, which demands often fuch proof of a prifoner's guilt, as the nature and fecrecy of his crime fcarce poffibly admit of; and which holds it the part of a fafe confcience not to condemn any man, whilft there exifts the minuteft poffibility 1 of his innocence. Any ftory they may happen to have heard or read, whether real or feigned, in which courts of juftice have been mifled by prefumptions of guilt, is enough in their minds to found an acquittal upon, where pofitive proof is I wanting. I do not mean that juries fhould indulge conjectures, fhould magnify fufpicions into proofs, or even that they fhould weigh probabilities in gold fcales; but when the preponderation of evidence is fo manifeft, as to perfuade every private understanding of the prifoner's guilt; when it furnishes that degree of credibility, upon which men decide and act in all other doubts, and which experience hath fhown that they may decide and act upon with fufficient fafety; to reject fuch proof, from an infinuation of uncertainty that belongs to all human affairs, and from a general dread left the charge of innocent blood fhould lie at their doors, is a conduct which however natural to a mind fludious of its own quiet, is authorized by no confiderations of rectitude or utility. It counteracts the care and damps the activity of government: it holds out public encou ragement to villainy, by confeffing the impoffibility of bringing villains to juftice; and that fpecies of encouragement, which, as hath been juft now ob

ferved, the minds of fuch men are moft apt to ertertain and dwell upon.

There are two popular maxims, which seem to have a confiderable influence in producing the inju dicious acquittals of which we complain. One is, "that circumftantial evidence falls fhort of pofitive "proof." This affertion, in the unqualified fenfe in which it is applied, is not true. A concurrence of well-authenticated circumftances composes a ftronger ground of affurance than positive teftimony, unconfirmed by circumftances, ufually affords. Cir cumftances cannot lie. The conclufion alfo which results from them, though deduced by only probable inference, is commonly more to be relied upon than the veracity of an unfupported folitary witnefs. The danger of being deceived is lefs, the actual inftances of deception are fewer, in the one cafe than the other. What is called pofitive proof in criminal matters, as where a man fwears to the perfon of the prifoner, and that he actually faw him commit the crime with which he is charged, may be founded in the mistake or perjury of a fingle witnefs. Such mistakes, and fuch perjuries, are not without many examples. Whereas to impofe upon a court of jul tice, a chain of circumftantial evidence in fupport of a fabricated accufation, requires fuch a number of falfe witneffes as feldom meet together; an union alfo of skill and wickednefs which is ftill more rare; and after all, this fpecies of proof lies much more open to difcuffion, and is more likely, if falfe, to be contradicted, or to betray itself by fome unforeseen inconfiftency, than that direct proof, which being confined within the knowledge of a fingle perfon, which appealing to, or ftanding connected with no external or collateral circumftances, is incapable, by its very fimplicity, of being confronted with oppofite probabilities.

The other maxim which deferves a fimilar examination is this, "that it is better that ten guilty per fons efcape, than that one innocent man fhould

"fuffer."

"fuffer." If by faying it is better, be meant that it is more for the public advantage, the propofition, I think, cannot be maintained. The fecurity of civil life, which is effential to the value and the enjoyment of every bleffing it contains, and the interruption of which is followed by univerfal mifery and confufion, is protected chiefly by the dread of punishment. The misfortune of an individual, for fuch may the fufferings, or even the death of an innocent perfon be called, when they are occafioned by no evil intention, cannot be placed in competition with this object. I do not contend that the life or fafety of the meaneft fubject ought. in any cafe, to be knowingly facrificed. No princi ple 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 infefted: courts of juftice fhould not be deterred from the application of thefe rules by every fufpicion of danger, or by the mere poffibility of confounding the innocent with the guilty. They ought rather to reflect, that he who falls by a mistaken fentence, may be confidered as falling for his country; whilft he fuffers under the operation of thefe rules, by the general effect and tendency of which the welfare of the community is maintained and upheld.

CHAP.

CHA P. X.

OF RELIGIOUS ESTABLISHMENTS AND OF TOLE

RATION.

A Religious eftablishment is no part of Chrif

tianity, it is only the means of inculcating "it." Amongst the Jews, the rites and offices, the order, family, and fucceffion of the priesthood were marked out by the authority which declared the law itself. There, therefore, were parts of the Jewish religion, as well as the means of tranfmitting it. Not fo with the new inftitution. It cannot be proved that any form of church government was laid down in the Chriftian, as it had been in the Jewish feriptures, with a view of fixing a conftitu tion for fucceeding ages; and which conftitution, confequently, the difciples of Chriftianity 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 Chrift himfelf; and if it be fhewn that the apoft les ordained bishops and prefbyters amongst their first converts, it must be remembered that deacons alfo and deaconeffes were appointed by them, with functions very diffimilar to any which obtain in the church at prefent. The truth feems to have been, that fuch offices were at firft erected in the Chriftian church, as the good order, the inftruction, and the exigencies of the fociety at that time required, without any intention, at least, without any declared defign, of regulating the appointment, authority, or the dif tinction of Chriftian minifters under future circumstances. This referve, if we may so call it, in the Chriftian Legiflator, is fufficiently accounted for by

two

two confiderations: Firft, that no precife conftitu- . tion could be framed, which would fuit with the condition of Chriftianity in its primitive ftate, and with that which it was to affume, when it fhould be advanced into a national religion. Secondly, that a particular defignation of office, or authority amongst the minifters of the new religion might have fo interfered with the arrangements of civil policy, as to have formed, in fome countries, a confiderable obstacle to the progrefs and reception of the religion itself.

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 different eftablifhments, the fingle view, under which we ought to confider any of them, is that of "a fcheme of inftruction," the fingle end we ought to propofe by them is, the prefervation and communication of religious knowledge." Every other idea, and other end that have been mixed with this, as every the making of the church an engine, or even an ally of the ftate; converting it into the means of ftrengthening or of diffufing influence; or regarding it as a fupport of regal in oppofition to popular forms of government, have ferved only to debafe the inftitution, and to introduce into it numerous corrup tions and abuses.

*.

The notion of a religious establishment comprehends three things; a clergy, or an order of men fecluded from other profeffions to attend upon the offices of religion; a legal provifion for the maintenance of the clergy; and the confining of that provifion to the teachers of a particular fect of Chriftianity. If any one of these three things be wanting; if there be no clergy, as amongft the quakers; or, if the clergy have no other provifion than what they derive from the voluntary contribution of their hearers; or, if the provifion which the laws affigu to the fupport of religion be extended to various

Lects