laws, and the ultimate decifion of every dispute between her fubjects. These are the men affigned to review judgments of law, pronounced by fages of the profeffion, who have spent their lives in the study and practice of the jurisprudence of their country. Such is the order which our ancestors have established. The effect only proves the truth of this maxim-" That when a single "inftitution is extremely diffonant from other

66

parts of the fyftem to which it belongs, it will

always find some way of reconciling itself to "the analogy which governs and pervades the "reft." By conftantly placing in the house of lords fome of the most eminent and experienced lawyers in the kingdom; by calling to their aid the advice of the judges, when any abstract queftion of law awaits their determination; by the almost implicit and undisputed deference, which the uninformed part of the house find it neceffary to pay to the learning of their colleagues, the appeal to the house of lords becomes in fact an appeal to the collected wisdom of our fupreme courts of juftice; receiving indeed folemnity, but little perhaps of direction, from the presence of the affembly in which it is heard and determined.

These, however, even if real, are minute imperfections.

perfections. A politician, who should fit down to delineate a plan for the difpenfation of public juftice, guarded against all access to influence and corruption, and bringing together the feparate advantages of knowledge and impartiality, would find when he had done, that he had been tranfcribing the judicial conftitution of England. And it may teach the most discontented amongst us to acquiefce in the government of his country, to reflect, that the pure, and wife, and equal administration of the laws, forms the first end and bleffing of focial union; and that this bleffing is enjoyed by him in a perfection, which he will seek in vain in any other nation of the world.

L

CHAP.

CHAP. IX.

OF CRIMES AND PUNISHMENTS.

TH

HE proper end of human punishment is, not the fatisfaction of justice, but the prevention of crimes. By the fatisfaction of justice, I mean the retribution of so much pain for fo much guilt; which is the dispensation we expect at the hand of God, and which we are accustomed to confider as the order of things that perfect juftice dictates and requires. In what fense, or whether with truth in any fenfe, juftice may be faid to demand the punishment of offenders, I do not now enquire; but I affert that this demand is not the motive or occafion of human punishment. What would it be to the magiftrate that offences went altogether unpunished, if the impunity of the offenders were followed by no danger or prejudice to the commonwealth? The fear left the escape of the criminal should encourage him, or others by his example, to repeat the fame crime, or to commit

dif

different crimes, is the fole confideration which authorizes 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 neceffity of preventing the repetition of the offence: and from hence refults the reafon, that crimes are not by any government punished in proportion to their guilt, nor in all cafes ought to be so, but in proportion to the difficulty and the neceffity 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 neceffary, and more difficult, to be prevented, the law, in certain circumftances, denounces against it a feverer punishment. The crime must be prevented by fome means or other; and confequently, 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 juftifies the infliction of punishinent at all. From the fame confideration it also follows, that punishment ought not to be em

ployed,

ployed, much less rendered fevere, when the crime can be prevented by any other means. Punishment is an evil to which the magiftrate reforts only from its being necessary to the prevention of a greater. This neceffity 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 fanguinary laws which have been made against counterfeiting or diminishing the gold coin of the kingdom might be juft, until the method of detecting the fraud, by weighing the money, was introduced into general ufage. Since that precaution was practifed, these laws have flept; and an execution under them at this day would be deemed a measure of unjustifiable feverity. The fame principle accounts for a circumftance, which has been often cenfured as an abfurdity in the penal laws of this, and of moft modern nations, namely, that breaches of truft 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, fhould mitigate the penalty?—This lenity, or rather forbearance of the laws, is founded in the most reasonable diftinction. A due circumfpection in the choice of the perfons