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Chapter 9: Of Crimes and Punishments - William Paley, The Principles of Moral and Political Philosophy 
The Principles of Moral and Political Philosophy, Foreword by D.L. Le Mahieu (Indianapolis: Liberty Fund, 2002).
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Of Crimes and Punishments
The proper end of human punishment is not the satisfaction of justice, but the prevention of crimes. By the satisfaction of justice, I mean the retribution of so much pain for so much guilt; which is the dispensation we expect at the hand of God, and which we are accustomed to consider as the order of things that perfect justice dictates and requires. In what sense, or whether with truth in any sense, justice may be said to demand the punishment of offenders, I do not now inquire: but I assert, that this demand is not the motive or occasion of human punishment. What would it be to the magistrate, that offences went altogether unpunished, if the impunity of the offenders were followed by no danger or prejudice to the commonwealth? The fear lest the escape of the criminal should encourage him, or others by his example, to repeat the same crime, or to commit different crimes, is the sole consideration which authorises the infliction of punishment by human laws. Now that, whatever it be, which is the cause and end of the punishment, ought undoubtedly to regulate the measure of its severity. But this cause appears to be founded, not in the guilt of the offender, but in the necessity of preventing the repetition of the offence: and hence results the reason, that crimes are not by any government punished in proportion to their guilt, nor in all cases ought to be so, but in proportion to the difficulty and the necessity of preventing them. Thus the stealing of goods privately out of a shop may not, in its moral quality, be more criminal than the stealing of them out of a house; yet being equally necessary, and more difficult, to be prevented, the law, in certain circumstances, denounces against it a severer punishment. The crime must be prevented by some means or other; and consequently, whatever means appear necessary to this end, whether they be proportionable to the guilt of the criminal or not, are adopted rightly, because they are adopted upon the principle which alone justifies the infliction of punishment at all. From the same consideration it also follows, that punishment ought not to be employed, much less rendered severe, when the crime can be prevented by any other means. Punishment is an evil to which the magistrate resorts only from its being necessary to the prevention of a greater. This necessity does not exist, when the end may be attained, that is, when the public may be defended from the effects of the crime, by any other expedient. The sanguinary laws which have been made against counterfeiting or diminishing the gold coin of the kingdom might be just until the method of detecting the fraud, by weighing the money, was introduced into general usage. Since that precaution was practised, these laws have slept; and an execution under them at this day would be deemed a measure of unjustifiable severity. The same principle accounts for a circumstance which has been often censured as an absurdity in the penal laws of this, and of most modern nations, namely, that breaches of trust are either not punished at all, or punished with less rigour than other frauds. Wherefore is it, some have asked, that a violation of confidence, which increases the guilt, should mitigate the penalty? This lenity, or rather forbearance, of the laws, is founded in the most reasonable distinction. A due circumspection in the choice of the persons whom they trust; caution in limiting the extent of that trust; or the requiring of sufficient security for the faithful discharge of it; will commonly guard men from injuries of this description; and the law will not interpose its sanctions to protect negligence and credulity, or to supply the place of domestic care and prudence. To be convinced that the law proceeds entirely upon this consideration, we have only to observe, that where the confidence is unavoidable—where no practicable vigilance could watch the offender, as in the case of theft committed by a servant in the shop or dwelling-house of his master, or upon property to which he must necessarily have access—the sentence of the law is not less severe, and its execution commonly more certain and rigorous, than if no trust at all had intervened.
It is in pursuance of the same principle, which pervades indeed the whole system of penal jurisprudence, that the facility with which any species of crimes is perpetrated, has been generally deemed a reason for aggravating the punishment. Thus, sheep-stealing, horse-stealing, the stealing of cloth from tenters or bleaching-grounds, by our laws, subject the offenders to sentence of death: not that these crimes are in their nature more heinous than many simple felonies which are punished by imprisonment or transportation, but because the property, being more exposed, requires the terror of capital punishment to protect it. This severity would be absurd and unjust, if the guilt of the offender were the immediate cause and measure of the punishment; but is a consistent and regular consequence of the supposition, that the right of punishment results from the necessity of preventing the crime: for if this be the end proposed, the severity of the punishment must be increased in proportion to the expediency and the difficulty of attaining this end; that is, in a proportion compounded of the mischief of the crime, and of the ease with which it is executed. The difficulty of discovery is a circumstance to be included in the same consideration. It constitutes indeed, with respect to the crime, the facility of which we speak. By how much therefore the detection of an offender is more rare and uncertain, by so much the more severe must be the punishment when he is detected. Thus the writing of incendiary letters, though in itself a pernicious and alarming injury, calls for a more condign and exemplary punishment, by the very obscurity with which the crime is committed.
From the justice of God, we are taught to look for a gradation of punishment exactly proportioned to the guilt of the offender: when therefore, in assigning the degrees of human punishment, we introduce considerations distinct from that guilt, and a proportion so varied by external circumstances, that equal crimes frequently undergo unequal punishments, or the less crime the greater; it is natural to demand the reason why a different measure of punishment should be expected from God, and observed by man; why that rule, which befits the absolute and perfect justice of the Deity, should not be the rule which ought to be pursued and imitated by human laws. The solution of this difficulty must be sought for in those peculiar attributes of the Divine nature, which distinguish the dispensations of Supreme Wisdom from the proceedings of human judicature. A Being whose knowledge penetrates every concealment, from the operation of whose will no art or flight can escape, and in whose hands punishment is sure; such a Being may conduct the moral government of his creation, in the best and wisest manner, by pronouncing a law that every crime shall finally receive a punishment proportioned to the guilt which it contains, abstracted from any foreign consideration whatever; and may testify his veracity to the spectators of his judgements, by carrying this law into strict execution. But when the care of the public safety is intrusted to men, whose authority over their fellow-creatures is limited by defects of power and knowledge; from whose utmost vigilance and sagacity the greatest offenders often lie hid; whose wisest precautions and speediest pursuit may be eluded by artifice or concealment; a different necessity, a new rule of proceeding, results from the very imperfection of their faculties. In their hands, the uncertainty of punishment must be compensated by the severity. The ease with which crimes are committed or concealed, must be counteracted by additional penalties and increased terrors. The very end for which human government is established, requires that its regulations be adapted to the suppression of crimes. This end, whatever it may do in the plans of Infinite Wisdom, does not, in the designation of temporal penalties, always coincide with the proportionate punishment of guilt.
There are two methods of administering penal justice.
The first method assigns capital punishment to few offences, and inflicts it invariably.
The second method assigns capital punishment to many kinds of offences, but inflicts it only upon a few examples of each kind.
The latter of which two methods has been long adopted in this country, where, of those who receive sentence of death, scarcely one in ten is executed. And the preference of this to the former method seems to be founded in the consideration, that the selection of proper objects for capital punishment principally depends upon circumstances, which, however easy to perceive in each particular case after the crime is committed, it is impossible to enumerate or define beforehand; or to ascertain however with that exactness which is requisite in legal descriptions. Hence, although it be necessary to fix by precise rules of law the boundary on one side, that is, the limit to which the punishment may be extended; and also that nothing less than the authority of the whole legislature be suffered to determine that boundary, and assign these rules; yet the mitigation of punishment, the exercise of lenity, may without danger be intrusted to the executive magistrate, whose discretion will operate upon those numerous, unforeseen, mutable, and indefinite circumstances, both of the crime and the criminal, which constitute or qualify the malignity of each offence. Without the power of relaxation lodged in a living authority, either some offenders would escape capital punishment, whom the public safety required to suffer; or some would undergo this punishment, where it was neither deserved nor necessary. For if judgement of death were reserved for one or two species of crimes only (which would probably be the case if that judgement was intended to be executed without exception), crimes might occur of the most dangerous example, and accompanied with circumstances of heinous aggravation, which did not fall within any description of offences that the laws had made capital, and which consequently could not receive the punishment their own malignity and the public safety required. What is worse, it would be known beforehand, that such crimes might be committed without danger to the offender’s life. On the other hand, if to reach these possible cases, the whole class of offences to which they belong be subjected to pains of death, and no power of remitting this severity remain any where, the execution of the laws will become more sanguinary than the public compassion would endure, or than is necessary to the general security.
The law of England is constructed upon a different and a better policy. By the number of statutes creating capital offences, it sweeps into the net every crime which, under any possible circumstances, may merit the punishment of death: but when the execution of this sentence comes to be deliberated upon, a small proportion of each class are singled out, the general character, or the peculiar aggravations, of whose crimes, render them fit examples of public justice. By this expedient, few actually suffer death, whilst the dread and danger of it hang over the crimes of many. The tenderness of the law cannot be taken advantage of. The life of the subject is spared as far as the necessity of restraint and intimidation permits; yet no one will adventure upon the commission of any enormous crime, from a knowledge that the laws 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 should 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 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 magistrate 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 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 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 conveyance; inasmuch as these practices tend to deprive the public of accommodations, which not only improve the conveniencies 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 civilised 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 be 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 authorised 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 committed without a possibility of contradiction or discovery; that the success and prevalency 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, 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 its 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 magistrate, of each man’s time, employment, and means of subsistence; nor securities to be required when these accounts appear unsatisfactory or dubious; nor men to be apprehended upon the mere suggestion of idleness or vagrancy; nor to be confined to 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 villainy, 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 no terror into the minds of those for whose warning and admonition it was intended. This chasm in the scale of punishment produces also two farther imperfections in the administration of penal justice: the first is, that the same punishment is extended to crimes of very different character and malignancy: the second, that punishments separated by a great interval, are assigned to crimes hardly distinguishable in their guilt and mischief.
The end of punishment is two-fold—amendment, and example. In the first of these, the reformation of criminals, little has ever been effected, and little, I fear, is practicable. From every species of punishment that has hitherto been devised, from imprisonment and exile, from pain and infamy, malefactors return more hardened in their crimes, and more instructed. If there be any thing that shakes the soul of a confirmed villain, it is the expectation of approaching death. The horrors of this situation may cause such a wrench in the mortal organs, as to give them a holding turn: and I think it probable, that many of those who are executed, would, if they were delivered at the point of death, retain such a remembrance of their sensations, as might preserve them, unless urged by extreme want, from relapsing into their former crimes. But this is an experiment that, from its nature, cannot be repeated often.
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 punishment; 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.
As aversion to labour is the cause from which half of the vices of low life deduce their origin and continuance, punishments ought to be contrived with a view to the conquering of this disposition. Two opposite expedients have been recommended for this purpose; the one, solitary confinement with hard labour; the other, solitary confinement with nothing to do. Both expedients seek the same end—to reconcile the idle to a life of industry. The former hopes to effect this by making labour habitual; the latter, by making idleness insupportable: and the preference of one method to the other depends upon the question, whether a man is more likely to betake himself, of his own accord, to work, who has been accustomed to employment, or who has been distressed by the want of it. When gaols are once provided for the separate confinement of prisoners, which both proposals require, the choice between them may soon be determined by experience. If labour be exacted, I would leave the whole, or a portion, of the earnings to the prisoner’s use, and I would debar him from any other provision or supply; that his subsistence, however coarse and penurious, may be proportioned to his diligence, and that he may taste the advantage of industry together with the toil. I would go farther; I would measure the confinement, not by the duration of time, but by quantity of work, in order both to excite industry, and to render it more voluntary. But the principal difficulty remains still; namely, how to dispose of criminals after their enlargement. By a rule of life, which is perhaps too invariably and indiscriminately adhered to, no one will receive a man or woman out of a gaol, into any service or employment whatever. This is the common misfortune of public punishments, that they preclude the offender from all honest means of future support.* It seems incumbent upon the state to secure a maintenance to those who are willing to work for it; and yet it is absolutely necessary to divide criminals as far asunder from one another as possible. Whether male prisoners might not, after the term of their confinement was expired, be distributed in the country, detained within certain limits, and employed upon the public roads; and females be remitted to the overseers of country parishes, to be there furnished with dwellings, and with the materials and implements of occupation—whether by these, or by what other methods, it may be possible to effect the two purposes of employment and dispersion; well merits the attention of all who are anxious to perfect the internal regulation of their country.
Torture is applied either to obtain confessions of guilt, or to exasperate or prolong the pains of death. No bodily punishment, however excruciating or long-continued, receives the name of torture, unless it be designed to kill the criminal by a more lingering death; or to extort from him the discovery of some secret, which is supposed to lie concealed in his breast. The question by torture appears to be equivocal in its effects: for since extremity of pain, and not any consciousness of remorse in the mind, produces those effects, an innocent man may sink under the torment, as well as he who is guilty. The latter has as much 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 jurisprudence 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 villain 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 holden 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 impartiality 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 law, whilst the act of coining was necessary to be established by specific proof. The statute which made possession of the implements of coining capital, that is, which constituted that possession complete evidence of the offender’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 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 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 the 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 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 villainy, 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 composes a stronger ground of assurance than positive testimony, unconfirmed 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 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 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 enjoyment 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 persued, 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.
[* ]Until this inconvenience be remedied, small offences had perhaps better go unpunished: I do not mean that the law should exempt them from punishment, but that private persons should be tender in prosecuting them.