Three others contribute severally to the three in

ferior ends of punishment; viz.

1

7. Subserviency to reformation.

8. Efficacy in disabling.

9. Subserviency to compensation.

Another property tends to exclude a collateral mischief, which a particular mode of punishment is liable accidentally to produce; viz.

10. Popularity.

The remaining property tends to palliate a mischief, which all punishment, as such, is liable accidentally to produce; viz.

11. Remissibility.

The properties of commensurability, characteristicalness, exemplarity, subserviency to reformation, and efficacy in disabling, are more particularly calculated to augment the profit which is to be made by punishment: frugality, subserviency to compensation, popularity, and remissibility, to diminish the expense: variability and equability are alike subservient to both those purposes.

SIR EDW. COKE.

THUS have we, by the great goodness of Almighty God, per varios casus, per tot discrimina rerum, brought this work concerning high treason, and other pleas of the crown, or criminal causes, and of pardons, and restitutions, to a conclusion; wherein (as we are verily persuaded) we have made it apparent from the lively voice of the laws themselves, that no country in the christian world have, in criminal cases of highest nature, laws of such express and defined certainty, and so equal between the king and all his subjects, as this famous kingdom of England hath, being rightly understood and duly executed, to the great honour of the king, and of the laws, and the happy safety of all his loving and loyal subjects.

Now seeing justitia est duplex, viz. severè puniens, ét verè præveniens; that is, justice severely punishing, whereof we have spoken, and truly preventing, or preventing justice, (quæ adhuc desideratur) for we have spoken only of the former; we will therefore at this place (for a conclusion) point at the other, with a direction how it may be effected.

True it is, that we have found by woeful experience, that it is not frequent and often punishment that doth prevent like offences, melior est enim 'justitia verè præveniens, quam severè puniens, agreeing with the rule of the physician for the safety of the body, præstat cautela, quam medela: and it is a certain rule, that videbis ed sæpe committi, quæ sæpe vindicantur; Those offences are often committed, that are often punished: for the frequency of the punishment makes it so familiar as it is not feared. For example, what a lamentable case it is to see so many christian men and women strangled on that cursed tree of the gallows, insomuch as if in a large field a man might see together all the christians, that but in one year, throughout England come to that untimely and ignominious death, if there were any

spark of grace, or charity in him, it would make his heart to bleed for pity and compassion. But here I leave to Divines to inform the inward man, who being well informed, verbo informante, the outward man will be the easilier reformed, virga reformante.

every

This preventing justice consisteth in three things: First, in the good education of youth, and that both by good instruction of them in the grounds of the true religion of Almighty God, and by learning some knowledge or trade in their tender years, so as there should not be an idle person, or a beggar, but that child, male or female, whose parents are poor, might at the age of seven years earn their own living; for ars fit quod a teneris primum conjungitur annis: and this, for the time to come, would undoubtedly, by preventing justice, avoid idleness in all, (one of the foul and fatal channels that lead into mare mortuum) and by honest trades cause them to become good members in the common-wealth.

Secondly, in the execution of good laws: True it is that there be good laws already to punish idleness, but none of sufficient force or effect to set youth or the idle on work.

Thirdly, that forasmuch as many do offend in hope of pardon, that pardon be very rarely granted, for the reasons in the chapter of pardons expressed.

But the consideration of this preventing justice were worthy of the wisdom of a parliament, and in the mean time expert and wise men make preparations for the same, as the text saith, ut benedicat eis dominum. Blessed shall he be that layeth the first stone of this building, more blessed that proceeds in it, most of all that finisheth it, to the glory of God, and the honour of our king and nation.

Epilogue to the Third Institute. ̧

BURGH'S POLITICAL DISQUISITIONS.

THERE are two principal means for drawing mankind to decency of behaviour, and deterring them from those actions which are hurtful to society, viz. Rewards and Punishments. As to the former of these, it is but a little way that statesmen go in conferring them. In poor countries, governments have but little intheir power, and in rich ones they give the honours and emoluments not to those who deserve them, but to those whom it suits them best to gratify; and then they exchange the name of rewards for that of bribes. It is therefore not necessary to say much of rewards. As to punishments, the most indispensable requisite is their being adequate. A murder committed with the sword of justice, is the most horrid phænomenon in a state. And in all well-regulated states, the maxim, "Better ten guilty escape, than that one innocent be punished," has been held unquestioned.

Another essential in punishments is, that they be calculated to deter offenders, and prevent farther transgression. For this is, in fact, the sole end of punishments. And if a sanction does nothing toward preventing farther violation of the law, it is totally useless.

Malefactors in Russia are now condemned not to death, but to work in the mines. A regulation not less prudent than humane; since it renders this punishment of some advantage to the state. In other countries they only know how to put a criminal to death with the apparatus, but are not able to prevent the commission of crimes. The terror of death does not perhaps make such an impression on evil doers, who are generally given to idleness, as the fear of chastisement, and hard labour renewed every day.

*Mod. Univ. Hist. xxxv. 390.

Catharine the Czarina, on ascending the throne, promised, that no person should in her reign be punished with death. We punish every thing with death, and with death of the same sort ; so that two fellows shall go together to be hanged at Tyburn, the one for cutting his wife's throat, or worse, starving her to death, the other for taking a guinea of a rich man a stranger to him.*

Caput amputare, &c. Beheading, racking, mutilation, breaking on the wheel, are not legal punishments in England, and yet in no country are fewer murders committed.' Thom. Smith. DE REPUB. ANGL. Perhaps it is not strictly true, that there is no country in which fewer murders are committed, than in England. I imagine Scotland and Holland are exceptions; to mention no others. But be this as it will, it is certain that in no countries are atrocious crimes more frequent, than in those in which the punishments are the most inhuman.

Let us hear Mr. Fazakerly on this subject, who spoke as follows in the house, A. D. 1744:

66

"Some people confess that forfeitures and confiscations, when "annexed to capital punishments, are inconsistent with religious justice, and the spirit of our law; but these additional punish"ments, say they, are necessary for the preservation of govern"ment, and preventing conspiracies and civil wars. Did they "ever do so in any country? Did the severity of the punishment "ever prevent the frequency of the crime? Does breaking on the "wheel prevent robberies in France? Do the punishments of treason prevent treasons and rebellions in Asia, where traitors are put "to the most tormenting and cruel deaths, and their whole families "destroyed? Sir, there is something in the nature of man that dis"dains to be terrified; and therefore severe punishments have never "been found effectual for preventing any sort of crime. The most

Mod. Univ. Hist. xxxv. 556.