yet that magiſtrate muſt be eſteemed both a weak and a cruel ſurgeon, who cuts off every limb, which through ignorance or indolence he will not attempt to cure. It has been therefore ingeniouſly propoſed[1], that in every ſtate a ſcale of crimes ſhould be formed, with a correſponding ſcale of puniſhments, deſcending from the greateſt to the leaſt : but, if that be too romantic an idea, yet at leaſt a wiſe legiſlator will mark the principal diviſions, and not aſſign penalties of the firſt degree to offences of an inferior rank. Where men ſee no diſtinction made in the nature and gradations of puniſhment, the generality will be led to conclude there is no diſtinction in the guilt. Thus in France the puniſhment of robbery, either with or without murder, is the ſame[2] : hence it is, that though perhaps they are therefore ſubject to fewer robberies, yet they never rob but they alſo murder. In China murderers are cut to pieces, and robbers not : hence in that country they never murder on the highway, though they often rob. And in England, beſides the additional terrors of a ſpeedy execution, and a ſubſequent expoſure or diſſection, robbers have a hope of tranſportation, which ſeldom is extended to murderers. This has the ſame effect here as in China ; in preventing frequent aſſaſination and ſlaughter.
Yet, though in this ſtance we may glory in the wiſdom of the Engliſh law, we ſhall find it more difficult to juſtify the frequency of capital puniſhment to be found therein ; inflicted (perhaps inattentively) by a multitude of ſucceſſive independent ſtatutes, upon crimes very different in their natures. It is a melancholy truth, that among the variety of actions which men are daily liable to commit, no leſs than an hundred and ſixty have been declared by act of parliament[3] to be felonies without benefit of clergy ; or, in other words, to be worthy of inſtant death. So dreadful a liſt, inſtead of diminiſhing, increaſes the number of
