opened a little wider than they are without either mischief or inconvenience; and I am the bolder in the assertion as I know a very learned judge who concurs with this opinion. There is no branch of the law more bulky, more full of confusion and contradiction, I had almost said of absurdity, than the law of evidence as it now stands.

One rule of this law is, that no man interested shall be sworn as a witness. By this is meant pecuniary interest; but are mankind governed by no other passion than avarice? Is not revenge the sweetest morsel, as a divine calls it, which the devil ever dropped into the mouth of a sinner? Are not pride, hatred, and the other passions, as powerful tyrants in the mind of man; and is not the interest which these passions propose to themselves by the enjoyment of their object, as prevalent a motive to evil as the hope of any pecuniary interest whatever?

But, to keep more closely to the point-Why shall not any credit be given to the evidence of an accomplice ?-My lord Hale tells us, that he hath been guilty of a great crime: and yet, if he had been convicted and burnt in the hand, all the authorities tell us, that his credit had been restored; a more miraculous power of fire than any which the Royal Society can produce. The same happens if he be pardoned.

Again, says lord Hale, he swears to save his own life. This is not altogether so; for when once a felon hath impeached his companions, and is admitted an evidence against them, whatever be the fate of his evidence, the impeacher always goes free. To this, it is true, he hath no positive title, no more hath he, if a single felon be convicted on his oath. But the practice is as I mention, and I do not remember any instance to the contrary.

But what inducement hath the accomplice to perjure himself; or what reason can be assigned why he should be suspected of it? That he himself was one

of the robbers appears to a demonstration; that he had accomplices in the robbery is as certain. Why then should he be induced to impeach A and B, who are innocent, and not C and D, who are guilty? Must he not think that he hath a better chance of convicting the guilty than the innocent? Is he not liable if he gives a false information to be detected in it? One of his companions may bę discovered and give a true information, what will then become of him and his evidence? And why should he do this? From a motive of friendship? Do the worst of men carry this passion so much higher than is common with the best? But he must not only run the risque of his life but of his soul too. The very mention of this latter risque may appear ridiculous when it is considered of what sort of persons I am talking. But even these persons can scarce be thought so very void of understanding as to lose their souls for nothing, and to commit the horrid sins of perjury and murder without any temptation, or prospect of interest, nay, even against their interest. Such characters are not to be found in history, nor do they exist any where but in distempered brains, and are always rejected as monsters when they are produced in works of fiction for surely we spoil the verse rather than the sense by saying, nemo gratis fuit turpissimus. Under such circumstances, and under the caution of a good judge, and the tenderness of an English jury, it will be the highest improbability that any man should be wrongfully convicted; and utterly impossible to convict an honest man: for I intend

more than that such evidence shall put the prisoner on his defence, and oblige him either to controvert the fact by proving an alibi, or by some other circumstance; or to produce some reputable person to his character. And this brings me to consider the second fortress of the criminal, in the hardiness of his own evidence.

The usual defence of a thief, especially at the Old Bailey, is an alibi: to prove this by perjury is a common act of Newgate friendship; and there seldom is any difficulty in procuring such witnesses. I remember a felon within this twelvemonth to have been proved to be in Ireland at the time when the robbery was sworn to have been done in London, and acquitted; but he was scarce gone from the bar, when the witness was himself arrested for a robbery committed in London, at that very time when he swore both he and his friend were in Dublin; for which robbery, I think, he was tried and executed. This kind of defence was in a great measure defeated by the late baron Thompson, when he was recorder of London, whose memory deserves great honour for the services he did the publick in that post. These witnesses should always be examined with the utmost care and strictness, by which means the truth (especially if there be more witnesses than one to the pretended fact) will generally be found out. And as to character, though I allow it to have great weight, if opposed to the single evidence of an accomplice, it should surely have but little where there is good and strong proof of the fact; and none at all unless it comes from the mouths of persons who have themselves some reputation and credit,

SECT. X.

Of the Encouragement given to Robbers by frequent

Pardons.

I COME now to the sixth encouragement to felons, from the hopes of a pardon, at least with the condi tion of transportation.

This I am aware is too tender a subject to speak to. To pardon all crimes where the prosecution is

*ive. That he was at another place at the time.

in his name, is an undoubted prerogative of the king. I may add, it is his most amiable prerogative, and that which, as Livy observes, renders kingly government most dear to the people: for in a republick there is no such power. may add farther, that it seems to our excellent sovereign to be the most favourite part of his prerogative, as it is the only one which hath been carried to its utmost extent in the present reign.

Here therefore I beg to direct myself only to those persons who are within the reach of his majesty's sacred ear. Such persons will, I hope, weigh well what I have said already on the subject of false compassion, all which is applicable on the present occasion and since our king (as was with less truth said of another) is of all men the truest image of his maker in mercy, I hope too much good-nature will transport no nobleman so far as it once did a clergyman in Scotland, who in the fervour of his benevolence prayed to God that he would graciously be pleased to pardon the poor devil.

To speak out fairly and honestly, though mercy may appear more amiable in a magistrate, severity is a more wholesome virtue; nay, severity to an individual may, perhaps, be in the end the greatest mercy, not only to the publick in general, for the reason given above, but to many individuals for the reasons to be presently assigned.

To consider a human being in the dread of a sudden and violent death: to consider that his life or death depend on your will; to reject the arguments which a good mind will officiously advance to itself; that violent temptations, necessity, youth, inadvertency, have hurried him to the commission of a crime which hath been attended with no inhumanity; to resist the importunities, cries, and tears,

*Dec. 1. 1. ii. cap. 3. Esse gratiæ locum, esse beneficio: et irasci et ignoscere posse (Regem scilicet); inter amicum atque inimicum discrimen nosse: leges, rem surdam, inexorabilem esse, &c. Disc. 1. iii. c. 3.

By Dryden of Charles I.

of a tender wife, and affectionate children, who, though innocent, are to be reduced to misery and ruin by a strict adherence to justice--these altogether form an object which whoever can look upon without emotion must have a very bad mind; and whoever, by the force of reason, can conquer that emotion must have a very strong one.

And what can reason suggest on this occasion? First, that by saving this individual I shall bring many others into the same dreadful situation. That the passions of the man are to give way to the principles of the magistrate. Those may lament the criminal, but these must condemn him. It was nobly said by Bias to one who admired at his shedding tears while he passed sentence of death, Na⚫ture exacts my tenderness but the law my rigour.' The elder Brutus* is a worthy pattern of this maxim; an example, says Machiavel, most worthy of being transmitted to posterity. And Dionysius Halicarnasseus calls it a great and wonderful action, of which the Romans were proud in the most extraordinary degree. Whoever derives it therefore from the want of humane and paternal affections is unjust; no instances of his inhumanity are recorded. • But the 'severity,' says Machiavel, was not only profitable ' but necessary?' and why? Because a single pardon granted ex mera gratia et favore, is a link broken in the chain of justice, and takes away the concatenation and strength of the whole. The danger and certainty of destruction are very different objects, and strike the mind with different degrees of force. It is of the very nature of hope to be sanguine, and it will derive more encouragement from one pardon than diffidence from twenty executions.

He put his two sons to death for conspiring with Tarquin. Neither Livy nor Dionysius give any character of cruelty to Brutus; indeed the latter tells us, that he was superior to all those passions which disturb hum n reason. Τῶν ἐπιβαραιτονίων της λογισμός παθῶν καρτερος.

† Page 272. Edit. Hudson.