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 mental 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.

ployment, or who has been distressed by the want
of it. When jails are once provided for the sepa-
rate confinement of prisoners, which both propo-
sals 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 earn-
ings to the prisoner's use, and I would debar him
from any other provision or supply; that his sub-
sistence, 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 further; 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 prin
cipal difficulty remains still; namely, how to dis-
pose 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 jail, into any service or
employment whatever. This is the common
misfortune of public punishment, that they pre-
clude 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

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 punish-lie concealed in his breast. ment; 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 man is more likely to betake himself, of his own accord, to work, who has been accustomed to em

a

The question by tor

ture 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 griev ous 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

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.

Until this inconvenience be remedied, small offences

with which the sufferings of our fellow-creatures | facilitate the conviction of criminals. The offence ought always to be seen; or, if no effect of this of counterfeiting the coin could not be checked kind follow from them, they counteract in some by all the terrors and the utmost severity of law, measure their own design, by sinking men's ab- whilst the act of coining was necessary to be es horrence of the crime in their commiseration of tablished by specific proof. The statute which the criminal. But if a mode of execution could be made possession of the implements of coining devised, which would augment the horror of the capital, that is, which constituted that possession punishment, without offending or impairing the complete evidence of the offender's guilt, was the -public sensibility by cruel or unseemly exhibitions first thing that gave force and efficacy to the deof death, it might add something to the efficacy nunciations of law upon this subject. The statute of the example: and, by being reserved for a few of James the First, relative to the murder of basatrocious crimes, might also enlarge the scale of tard children, which ordains that the concealment punishment; an addition to which seems want- of the birth should be deemed incontestable proof ing; for, as the matter remains at present, you of the charge, though a harsh law, was, in like hang a malefactor for a simple robbery, and can manner with the former, well calculated to put a do no more to the villain who has poisoned his stop to the crime. 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.

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 Infamous punishments are mismanaged in which holds it the part of a safe conscience not this country, with respect both to the crimes and to condemn any man, whilst there exists the the criminals. In the first place, they ought to minutest possibility of his innocence. Any story be confined to offences which are holden in un- they may happen to have heard or read, whether disputed and universal detestation. To condemn real or feigned, in which courts of justice have to the pillory the author or editor of a libel against been misled by presumptions of guilt, is enough, the state, who has rendered himself the favourite in their minds, to found an acquittal upon, where of a party, if not of the people, by the very act for positive proof is wanting. I do not mean that which he stands there, is to gratify the offender, juries should indulge conjectures, should magnify and to expose the law to mockery and insult. In suspicions into proofs, or even that they should the second place; the delinquents who receive weigh probabilities in gold scales: but when the this sentence, are for the most part such as have preponderation of evidence is so manifest as to long ceased either to value reputation, or to fear persuade every private understanding of the prisonshame; of whose happiness, and of whose en-er's guilt; when it furnishes the degree of credijoyments, 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.

bility 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 villany, 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 The certainty of punishment is of more con-is: "That circumstantial evidence falls short of sequence than the severity. Criminals do not so positive proof." This assertion, in the unqualified much flatter themselves with the lenity of the sense in which it is applied, is not true. A consentence, as with the hope of escaping. They currence of well-authenticated circumstances comare not so apt to compare what they gain by the pose a stronger ground of assurance than positive crime with what they may suffer from the punish-testimony, unconfirmed by circumstances, usually ment, 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

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 per

presbyters amongst their first converts, it must be remembered that deacons also and deaconesses were appointed by them, with functions very dissimilar to any which obtain in the church at present. The truth seems to have been, that such offices were at first erected in the Christian church, as the good order, the instruction, and the exigencies of the society at that time required, without any intention, at least without any declared design, of regulating the appointment, authority, or the distinction, of Christian ministers under future circumstances. This reserve, if we may so call it, in the Christian Legis

jury 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 circum-lator, is sufficiently accounted for by two considerstances, is incapable, by its very simplicity, of being confronted with opposite probabilities.

ations:-First, that no precise constitution could be framed, which would suit with the condition of Christianity in its primitive state, and with that which it was to assume when it should be advanced into a national religion: Secondly, that a particular designation of office or authority amongst the ministers of the new religion, might have so interfered with the arrangements of civil policy, as to have formed, in some countries, a considerable obstacle to the progress and reception of the reli

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 uni-gion itself. versal 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.

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 dif erent establishments, the single view under which we ought to consider any of them is, that of "a scheme of instruction;" the single end we ought to propose by them is, "the preservation and communication of religious knowledge." Every other idea, and every other end, that have been But when certain rules of adjudication must mixed with this, as the making of the church an be pursued, when certain degrees of credibility engine, or even an ally, of the state; converting must be accepted, in order to reach the crimes it into the means of strengthening or diffusing inwith which the public are infested; courts of jus-fluence; or regarding it as a support of regal, in tice 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.

CHAPTER X.

opposition to popular forms of government; have served only to debase the institution, and to introduce into it numerous corruptions and abuses.

The notion of a religious establishment comprehends three things:—a clergy, or an order of men secluded from other professions to attend upon the offices of religion; a legal provision for the maintenance of the clergy; and the confining of that provision to the teachers of a particular sect of Christianity. If any one of these three things be wanting, if there be no clergy as amongst the Quakers; or if the clergy have no other provision than what they derive from the voluntary of Religious Establishments and of Toleration. which the laws assign to the support of religion contribution of their hearers; or if the provision "A RELIGIOUS establishment is no part of be extended to various sects and denominations of Christianity: it is only the means of inculcating Christians; there exists no national religion or it." Amongst the Jews, the rights and offices, the established church, according to the sense which order, family, and succession of the priesthood, these terms are usually made to convey. He, therewere marked out by the authority which declared fore, who would defend ecclesiastical establishthe law itself. These, therefore, were parts of ments, must show the separate utility of these the Jewish religion, as well as the means of trans-three essential parts of their constitution mitting it. Not so with the new institution. It cannot be proved that any form of church-government was laid down in the Christian, as it had been in the Jewish Scriptures, with a view of fixing a constitution for succeeding ages; and which constitution, consequently, the disciples of Christianity 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 Christ himself; and if it be shown that the apostles ordained bishops and

1. The question first in order upon the subject, as well as the most fundamental in its importance, is, whether the knowledge and profession of Christianity can be maintained in a country without a class of men set apart by public authority to the study and teaching of religion, and to the conducting of public worship; and for these purposes secluded from other employments. I add this last circumstance, because in it consists, as I take it, the substance of the controversy. Now it must be remembered, that Christianity is an historical

religion, founded in facts which are related to have their institution, the more ordinary offices of pubT passed, upon discourses which were holden, and lic teaching, and of conducting public worship, letters which were written, in a remote age, and call for qualifications not usually to be met with distant country of the world, as well as under a amidst the employments of civil life. It has been state of life and manners, and during the preva-acknowledged by some, who cannot be suspected lency of opinions customs, and institutions, very of making unnecessary concessions in favour of unlike any which are found amongst mankind at establishments, "to be barely possible, that a present. Moreover, this religion, having been person who was never educated for the office first published in the country of Judea, and being should acquit himself with decency as a public built upon the more ancient religion of the Jews, teacher of religion.". And that surely must be is necessarily and intimately connected with the a very defective policy which trusts to possibilities sacred writings, with the history and polity of for success, when provision is to be made for reguthat singular people: to which must be added, lar and general instruction. Little objection to that the records of both revelations are preserved this argument can be drawn from the example of in languages which have long ceased to be spo- the Quakers, who, it may be said, furnish an exken in any part of the world. Books which come perimental proof that the worship and profession down to us from times so remote, and under so of Christianity may be upholden without a sepamany causes of unavoidable obscurity, cannot, it is rate clergy. These sectaries every where subsist evident, be understood without study and prepa-in conjunction with a regular establishment. They ration. The languages must be learned. The have access to the writings, they profit by the various writings which these volumes contain, labours, of the clergy, in common with other Chrismust be carefully compared with one another, and tians. They participate in that general diffusion with themselves. What remains of contemporary of religious knowledge, which the constant teachauthors, or of authors connected with the age, the ing of a more regular ministry keeps up in the country, or the subject of our scriptures, must be country: with such aids, and under such circumperused and consulted, in order to interpret doubt-stances, the defects of a plan may not be much ful forms of speech, and to explain allusions which felt, although the plan itself be altogether unfit for refer to objects or usages that no longer exist. general imitation." Above all, the modes of expression, the habits of 2. If then an order of clergy be necessary, if it reasoning and argumentation, which were then be necessary also to seclude them from the emin use, and to which the discourses even of in-ployments and profits of other professions, it is spired teachers were necessarily adapted, must be sufficiently known, and can only be known at all by a due acquaintance with ancient literature. And lastly, to establish the genuineness and integrity of the canonical scriptures themselves, a series of testimony, recognising the notoriety and reception of these books, must be deduced from times near to those of their first publication, down the succession of ages through which they have been transmitted to us. The qualifications necessary for such researches demand, it is confessed, a degree of leisure, and a kind of education, inconsistent with the exercise of any other profes-presents temptations of interest in opposition to sion.-But how few are there amongst the clergy, the duties of religion; or which makes the offices from whom any thing of this sort can be expected! of religion expensive to those who attend upon how small a proportion of their number, who them; or which allows pretences of conscience to seem likely either to augment the fund of sacred be an excuse for not sharing in a public burthen. literature, or even to collect what is already known! If, by declining to frequent religious assemblies, -To this objection it may be replied, that we men could save their money, at the same time that sow many seeds to raise one flower. In order to they indulged their indolence, and their disinclinaproduce a few capable of improving and continution to exercises of seriousness and reflection; or, ing the stock of Christian erudition, leisure and if by dissenting from the national religion, they opportunity must be afforded to great numbers. could be excused from contributing to the support Original knowledge of this kind can never be of the ministers of religion; it is to be feared that universal; but it is of the utmost importance, and many would take advantage of the option which it is enough that there be, at all times, found was thus imprudently left open to them, and that some qualified for such inquiries, and in whose this liberty might finally operate to the decay of concurring and independent conclusions upon virtue, and an irrecoverable forgetfulness of all reeach subject, the rest of the Christian communityligion in the country. Is there not too much may safely confide: whereas, without an order of clergy educated for the purpose, and led to the prosecution of these studies by the habits, the leisure, and the object, of their vocation, it may well be questioned whether the learning itself would not have been lost, by which the records of our faith are interpreted and defended. We contend, therefore, that an order of clergy is necessary to perpetuate the evidences of Revelation, and to interpret the obscurity of those ancient writings, in which the religion is contained. But besides this, which forms, no doubt, one design of

evident they ought to be enabled to derive a maintenance from their own. Now this maintenance must either dep ad upon the voluntary contributions of their hearers, or arise from revenues assigned by authority of law. To the scheme of voluntary contribution there exists this insurmountable objection, that few would ultimately contribute any thing at all. However the zeal of a sect, or the novelty of a change, might support such an experiment for a while, no rehance could be placed upon it as a general and permanent provision. It is at all times a bad constitution, which

reason to fear, that, if it were referred to the discretion of each neighbourhood, whether they would maintain amongst them a teacher of religion or not, many districts would remain unprovided with any; that, with the difficulties which encumber every measure requiring the co-operation of num bers, and where each individual of the number has an interest secretly pleading against the success of the measure itself, associations for the support of Christian worship and instruction would neither be numerous nor long continued? The devout and pious might lament in vain the want or the

distance of a religious assembly; they could not form or maintain one, without the concurrence of neighbours who felt neither their zeal nor their liberality.

sary discussion and of great importance. And whatever we may determine concerning speculative rights and abstract proprieties, when we set about the framing of an ecclesiastical constitution adapted to real life, and to the actual state of religion in the country, we shall find this question very nearly related to and principally indeed deby whom, ought the ministers of religion to be appointed?" If the species of patronage be retained to which we are accustomed in this country, and which allows private individuals to nominate teachers of religion for districts and congregations to which they are absolute strangers; without some test proposed to the persons nominated, the utmost discordancy of religious opinions might arise between the several teachers and their reappoint a priest to say mass to a congregation of protestants; an episcopal clergyman be sent to of ficiate in a parish of presbyterians; or a presbyterian divine to inveigh against the errors of popery before an audience of papists. The requisition then of subscription, or any other test by which the national religion is guarded, may be considered merely as a restriction upon the exercise of private patronage. The laws speak to the private patron thus:-"Of those whom we have previously pronounced to be fitly qualified to teach religion, we allow you to select one; but we do not allow you to decide what religion shall be established in a particular district of the country; for which decision you are no wise fitted by any qualifications which, as a private patron, you may happen to possess. If it be necessary that the point be determined for the inhabitants by any other will than their own, it is surely better that it should be determined by a deliberate resolution of the legislature, than by the casual inclination of an individual, by whom the right is purchased, or to whom it devolves as a mere secular inheritance." Wheresoever, therefore, this constitution of patronage is adopted, a national religion, If, in deference then to these reasons, it be or the legal preference of one particular religion admitted, that a legal provision for the clergy, com- to all others, must almost necessarily accompany it. pulsory upon those who contribute to it, is expe- But, secondly, let it be supposed that the appointdient; the next question will be, whether this pro- ment of the minister of religion was in every parish vision should be confined to one sect of Christianity, left to the choice of the parishioners; might not or extended indifferently to all? Now it should be this choice, we ask, be safely exercised without observed, that this question never can offer itself its being limited to the teachers of any particular where the people are agreed in their religious sect? The effect of such a liberty must be, that a opinions; and that it never ought to arise, where papist, or a presbyterian, a methodist, a Moravian, a system may be framed of doctrines and worship or an anabaptist, would successively gain posseswide enough to comprehend their disagreement; sion of the pulpit, according as a majority of the and which might satisfy all, by uniting all in the party happened at each election to prevail.-Now, articles of their common faith, and in a mode of with what violence the conflict would upon every divine worship that omits every subject of contro- vacancy be renewed; what bitter animosities would versy or offence. Where such a comprehension be revived, or rather be constantly fed and kept is practicable, the comprehending religion ought alive, in the neighbourhood; with what unconto be made that of the state. But if this be de- querable aversion the teacher and his religion spaired of; if religious opinions exist, not only so would be received by the defeated party, may be various, but so contradictory, as to render it im- foreseen by those who reflect with how much paspossible to reconcile them to each other, or to any sion every dispute is carried on, in which the one confession of faith, rule of discipline, or form name of religion can be made to mix itself; much of worship; if, consequently, separate congrega- more where the cause itself is concerned so immetions and different sects must unavoidably con- diately as it would be in this. Or, thirdly, if the tinue in the country under such circumstances, state appoint the ministers of religion, this constiwhether the laws ought to establish one sect in tution will differ little from the establishment of a preference to the rest, that is, whether they ought national religion; for the state will, undoubtedly, to confer the provision assigned to the mainte-appoint those, and those alone, whose religious nance of religion upon the teachers of one system opinions, or rather whose religious denominations, of doctrines alone, becomes a question of neces- I agree with its own; unless it be thought that any

From the difficulty with which congregations would be established and upheld upon the voluntary plan, let us carry our thoughts to the condition of those who are to officiate in them. Preach-pendent upon another; namely, "In what way, or ing, in time, would become a mode of begging. With what sincerity, or with what dignity, can a preacher dispense the truths of Christianity, whose thoughts are perpetually solicited to the reflection how he may increase his subscription? His eloquence, if he possesses any, resembles rather the exhibition of a player who is computing the profits of his theatre, than the simplicity of a man who, feeling himself the awful expectations of religion, is seeking to bring others to such a sense and un-spective congregations. A popish patron might derstanding of their duty as may save their souls. Moreover, a little experience of the disposition of the common people will in every country inform us, that it is one thing to edify them in Christian knowledge, and another to gratify their taste for vehement, impassioned oratory; that he, not only whose success, but whose subsistence, depends upon collecting and pleasing a crowd, must resort to other arts than the acquirement and communication of sober and profitable instruction. For a preacher to be thus at the mercy of his audience; to be obliged to adapt his doctrines to the pleasure of a capricious multitude; to be continually affecting a style and manner neither natural to him, nor agreeable to his judgment; to live in constant bondage to tyrannical and insolent directors; are circumstances so mortifying, not only to the pride of the human heart, but to the virtuous love of independency, that they are rarely submitted to without a sacrifice of principle, and a deprivation of character;—at least it may be pronounced, that a ministry so degraded would fall into the lowest hands: for it would be found impossible to engage men of worth and ability in so precarious and humiliating a profession.