PHI LOS 0 P H Y . - Classic Works of Apologetics Online

Of Crimes olzd Punishments. 897
often cen~:'rcd as an ab~urdity in the penal laws of
tllis, and of most modern nations, namely ~ that
breaches of trust are either not punished at ali, or pun~
ished with less rigour than other frauds.-\Vherefore'.
is it, some have asked, that a violation of cOllfidence,i
which increases the guilt, should mitigate the penalty ~
This lenity, or rather forbearance of the law~, i~
founded in the most reasonable distinction. .L\ due
circumspection in the choice of the persons whorn
they trust; caution in iimiting the extent of that
trust; or the requiring of sufficient security for the
faithful discharge of it, will commonly guard nlen
from injuries of this description: and the law will
not interpose its sanctions, to protect negligence and
credulity, or to supply the place of domestic care and
prudence. To be convinced that the law proceeds
entirely upon this consideration, we have oniy to observe,
that, where the confidence is unavoidable~
where no practicable vigilance could watch the offender,
as in the case of theft committed by a ser\'ant in
the shop or dwelling-house of his master, or upon
property to which he must necessarily have access,
the sentence of the lay/ is not less severe, and its execution
commonly more certain and rigorous, than
if no trust at all had intervened.
;' It is in pursuance of the same principle, 'Nhich per ..
vades indeed the whole system of penal jur~sprudence,
that the facility, with \\lhich any species (Jf crimes is
~erpetrated, has been generally deemed a reason for
aggravating the punishment./ Thus, sheep-stealing,
horse.stealing, the stealing ot cloth from tenters, or
bleaching grounds, by our Jaws, subject the offepders
to sentence of death: not that these crinles are in
their nature more heinous, than many simple felonies
\vhich are punished by inlprisonment or transpor ..
tation, but because the property being more exposed:.
rrquircs the terror of capital pllnishnlent to prot(~ct
it. This severity would be ab~urd and unjust, jf the
gtlilt of the offender were tIle itnmeJiate rallse Jl1