remains in the competition of opposite analogies. A doubtful point of a positive nature can seldom be mooted oftener than once. But new cases frequently arise which are similar, partly to one precedent, and partly to another; so that the analogy drawn from the principles of one decision is af variance with the analogy drawn from the principles of the other. Now, as the skill of the advocates on either side, is employed in combining analogies apparently dissimilar, and separating those apparently similar; so the sagacity of the judge is seen in his detection of the fallacies of both, and in his reconciliation of conflicting principles; or, if that be impossible, in his perspicuity to see which the weaker, and ought to yield. For instance, in the question connected with literary property, it was once argued in England, that the mental labor expended by an author on his production, is similar to the manual labor expended by an operative on his work; and that as the produce of manual labor is the property of the operative, so the produce of mental labor ought to be the property of the author; and as the operative is protected in the enjoyment of his property by rights, exclusive, assignable, and perpetual, so is the author entitled to the same protection of his property by similar rights. To this it was replied, that a book is similar to the invention of a machine or a medicine; and that as the law permits these to be copied, except where an exclusive sale is reserved by a patent to the inventor, it was fair to infer that a book, unless so reserved, may be copied likewise. The competition of these analogies constituted the difficulty of decision; and the same may be said of the majority of cases found in the Reports; although it must be confessed that the analogies there produced are sometimes so entangled as not to be easily unraveled, and so obscure as not even to be perceived.

Doubtful points of law are, however, not so numerous as they are supposed to be; and even in the few that are reserved for the decision of the judges, the uncertainty does not arise so much from the imperfection of the law, as from the means of human information.

There is one particular in the judicial constitution of this

477 What duty is devolved by this circumstance upon the judge? Give an illustration.

478 But are doubtful points of law very numerous?

479 Is there any defect in the constitution of our judiciary? What is it? Why?

country, which does not carry with it that evidence of its propriety which recommends almost every other part of the system. It is the rule which requires unanimity in the verdict of a jury. For, to expect twelve men to agree on a point confessedly dubious, or to suppose that, if they differ, any real unanimity can be the result of confining them until they all consent to the same verdict, shows more of a barbarous conceit of the dark ages, than of a policy so wise as to dictate the institution of the jury. Still, though the rule is so unreasonable, it is not often really detrimental. Indeed, in criminal prosecutions, it operates in favor of the prisoner; for if a juror must surrender his opinion to that of others, he will more readily resign it to acquit than condemn, [unless in times of high party feelings.] In civil suits, it adds weight to the direction of the judge: for when a disagreement not likely to be easily reconciled takes place amongst the jurors, they will naturally close their disputes by a common submission to the learning of the judge. On the other hand, in such forced unanimity there is less assurance of the correctness of the verdict, than if the decision were left to a plurality, or to any fixed majority of voices.

CHAP. XIV.-CRIMES AND PUNISHMENTS.

The end of human punishment is the prevention of crime, and not the retribution of so much pain for so much guilt; although the last is the plan which perfect justice would dictate, and is, therefore, the dispensation we expect from God. In what sense, or whether in any sense justice can be said to demand the punishment of offenders, I do not now inquire. But I assert that this demand is not the occasion of punishment; for it is certain that the offence would not arrest the notice of the magistrate, if impunity were followed by no danger to the commonwealth. But as the impunity of an offender would lead him or others to repeat a similar offence, civil rulers have determined that human laws must inflict punishment as an example; and punishments are resorted to, only

Why?

480 Is that defect a source of much evil? 481 How does it affect our opinion of the correctness of the verdicts? 482 State the proper end of human punishments.

483 Does not justice require vengeance against an offender?

484 How then do we determine that human laws do not punish offences on that account?

485 Why have civil rulers instituted punishments?

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for that purpose. Now, as the severity of punishment must be regulated by the necessity for its use, and as this necessity depends on the utility of prevention; crimes are properly punished, not according to the mischief done, but to the difficulty of preventing them. Thus, the stealing of goods privately out of a shop is an act not more criminal then stealing them out of a house; yet, as the former theft is more difficult to be prevented than the latter, it should, under certain circumstances, be punished with greater severity. The crime must be prevented somehow, and consequently all necessary means are justifiable; no matter what their proportion may be to the guilt of the criminal. But as punishments are justifiable only because they are necessary, they must not be severe if milder means will answer the same purpose of prevention. Thus, the sanguinary laws against counterfeiting or clipping foreign gold coin, might be just, when prevention was difficult; but when the detection of the fraud by weighing was introduced into general usage, the prevention became easy; and the severity should now in part be done away with. On this principle may be explained, what appears to be an absurdity in the penal laws of most countries; namely, that a breach of trust is either not punished, or punished less than other frauds. Some have asked why should a violation of confidence, which increases the crime of peculation, mitigate the penalty? It may be replied, that this lenity is strictly just for a due caution in choosing the person to be intrusted; in limiting the trust; and in demanding security; might prevent the mischief; and the law will not interpose to protect him who will not protect himself. But it will interpose, and does so with severity, where no reasonable vigilance could prevent the crime. On the same principle, the stealing of sheep or horses in fields, or of cloth from bleaching-grounds, are punished with greater severity than other felonies; not with reference to the greater moral turpitude of the acts, but be

486 What principle of punishment do we derive from this reasoning? 487 Give an example, and account for it.

488 What opinion as to their mitigation do we derive from the same principle? Illustrate.

489 What apparent absurdity is explained upon this principle? 490 What question has been asked; and how is it answered?

491 What other instances of severity are accounted for on the same principle?

cause such necessary exposure of the property, as it makes the prevention more difficult, justifies a greater punishment. In like manner a greater punishment is justified by the difficulty of detection; as in case of the writing incendiary letters, without any or with false signatures.

But when we assert that human punishments are regulated less by the quantity of guilt, than by circumstances so varied that not only equal crimes undergo unequal punishment, but even a less crime the greater; it is natural to inquire, why different measures of justice should be expected from God on the one hand, and from man on the other? Why the rule, which befits the justice of God, should not be pursued by human laws? The answer is, that a Being, who knows the very thoughts of his creatures and whose punishments none can escape, may conduct his moral government in the wisest way by punishing crimes according to their moral turpitude alone. But when the public safety is intrusted to men necessarily so deficient in power and knowledge, that the greatest offenders often escape, or, if discovered, are from the imperfection of law only slightly punished, a different rule must be adopted; and as the certainty of punishment which exists with God, justifies one rule on his part, so the uncertainty which exists with men, will justify another rule on their part. So that instead of proportioning the punishment to the guilt, which God can do, but man cannot, the latter can only compensate for the uncertainty by severity; a rule which God, from his greater knowledge and power, need not adopt.

["There is, besides the prevention of crime, another object to be gained by punishment, which, though subordinate to the other, might perhaps still obtain greater notice from the legislator than it is wont to do, viz. restitution or compensation.* Since what are called criminal actions are commonly injuries committed by one man upon another, it appears to be a very obvious dictate of reason that the injury should be

492 What question arises from the preceding considerations?

493 How is the difficulty removed?

494 What may be called a third object of punishment? 495 Is it a proper object? Give some illustrations.

"The law of nature commands that reparation be made."-Paley's Mor. and Pol. Phil. book 6. chap. 13. And this dictate of nature appears to have been recognised in the Mosaic law, in which compensation to the suffering party is expressly required.

repaired; that he, from whom the thief steals a purse should regain its value; that he who is injured in his person or otherwise should receive such compensation as he may. When my house is broken into, and a hundred dollars' worth of property is carried off, it is but an imperfect satisfaction to me that the robber will be punished. I ought to recover the value of my property. The magistrate in taking care of the general, should take care of the individual weal.

"If in an improved state of penal affairs it should be found practicable to oblige offenders to recompense by their labor those who had suffered by their crime, this advantage would attend, that while it would probably involve considerable punishment, it would approve itself to the offender's mind as the demand of reason and of justice. This is no trifling consideration; for in every species of coercion and punishment, public or domestic, it is of consequence that the punished party should feel the justice and propriety of the measures which are adopted.”—Dymond, Essay iii. ch. 12.] There are two methods of administering penal justice :1. Where the capital punishment is affixed to a few offences, and invariably inflicted:

2. Where capital punishment is affixed to many kinds of offences, but inflicted only on a few examples of each kind.

Of these methods, the last is adopted in England, where, out of ten sentenced to death, scarcely one is executed, And the reason given for the adoption of this method is, that by the selection of objects for capital punishment, such circumstances may in each case be taken into consideration, as might be unknown or not so well known, before, as after conviction; and therefore, though it is necessary to fix by law the limit to which punishment may be extended, still its mitigation may be safely intrusted to the discretion of the executive magistrate, who, it is supposed, will be influenced by the view of all the circumstances that go to prove the quantity and quality of the crime. Without such a power of mitigation, some would escape who ought to suffer, and others suffer who ought to escape. For, if death were affixed

496 What improvement in general regulations is suggested?

497 What great recommendation has it?

498 What are the two methods of administering penal justice? 499 Where is the second method preferred?

500 What reason is given for this preference?

501 What reason is given for the power of mitigation?