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the presiding magistrate comes into the country a principle of reasoning, by which he can foretell, oi stranger to its prejudices, rivalships, and connex even conjecture, the event of a judicial contest. ions, he brings with him none of those attach- To remove therefore the grounds of this expectaments and regards which are so apt to pervert the tion, by rejecting the force and authority of precourse of justice when the parties and the judges cedents, is to entail upon the subject the worst inhabit the same neighbourhood. Again; as this property of slavery,—to have no assurance of his magistrate is usually one of the judges of the su- rights, or knowledge of his duty. The quiet also preme tribunals of the kingdom, and has passed of the country, as well as the confidence and satishis life in the study and administration of the faction of each man's inind, requires uniformity laws, he possesses, it may be presumed, those pro- in judicial proceedings. Nothing quells a spirit of fessional qualifications which befit the dignity and litigation, like despair of success: therefore nothing importance of his station. Lastly, as both he, and so completely puis an end to law-suits, as a rigid the advocates who accompany him in his circuit, adherence to known rules of adjudication. Whilst are employed in the business of those superior the event is uncertain, which it ever must be courts (to which also their proceedings are amena- whilst it is uncertain whether former determinable,) they will naturally conduct themselves by the tions upon the same subject will be followed or rules of adjudication which they have applied or not, law-suits will be endless and innumerable: learned there; and by this means maintain, what men will commonly engage in them, either from constitutes a principal perfection of civil govern the hope of prevailing in their claims, which the ment, one law of the land in every part and dis- smallest chance is sufficient to encourage; or with trict of the empire.
the design of intimidating their adversary by the Next to the constitution of courts of justice, we terror of a dubious litigation. When justice is are naturally led to consider the maxims which rendered to the parties, only half the business of a ought to guide their proceedings; and, upon this court of justice is done: the more important part subject, the chief inquiry will be, how far, and of its office remains ;-to put an end, for the future, for what reasons, it is expedient to adhere to for- to every fear, and quarrel, and expense, upon the mer determinations; or whether it be necessary same point; and so to regulate its proceedings, for judges to attend to any other consideration that not only a doubt once decided may be stirred than the apparent and particular equity of the no more, but that the whole train of law-suits, case before them. Now, although to assert that which issue from one uncertainty, may die with precedents established by one set of judges ought the parent-question. Now this advantage can be to be incontrovertible by their successors in the attained only by considering each decision as a disame jurisdiction, or by those who exercise a high-rection to succeeding judges. And it should be er, would be to attribute to the sentence of those observed, that every departure from former deterjudges all the authority we ascribe to the most minations, especially if they have been often resolemn acts of the legislature: yet the general se- peated or long submitted to, shakes the stability curity of private rights, and of civil lite, requires of all legal title. It is not fixing a point anew, that such precedents, especially if they have been it is leaving every thing untixed. "For by the confirmed by repeated adjudications, should not same stretch of power by which the present race be overthrown, without a detection of manifest of judges take upon them to contradict the judgerror, or without some imputation of dishonesty ment of their predecessors, those who try the upon the court by whose judgment the question question next may set aside theirs. was first decided. And this deference to prior From an adherence however to precedents, by decisions is founded upon two reasons: first, that which so much is gained to the public, two conthe discretion of judges may be bound down by sequences arise which are often lamented; the positive rules ; and secondly, that the subject, up- hardship of particular determinations, and the inon every occasion in which his legal interest is tricacy of the law as a science. To the first of concerned, may know beforehand how to act, and these complaints, we must apply this reflection :what to expect. To set judges free from any obli- " That uniformity is of more importance than gation to conform themselves to the decisions of equity, in proportion as a general uncertainty their predecessors, would be to lay open a latitude would be a greater evil than particular injustice.” of judging with which no description of men can The second is attended with no greater inconvesafely he intrusted; it would be to allow space for niency than that of erecting the practice of the the exercise of those concealed partialities, which, law into a separate profession; which this reason, since they cannot by any human policy be exclud- we allow, makes necessary : for if we attribute so ed, ought to be confined by boundaries and land- much authority to precedents, it is expedient that marks. It is in vain to allege, that the superin- they be known, in every cause, both to the advotendency of parliament is always at hand to con- cates and to the judge: this knowledge cannot be trol and punish abuses of judicial discretion. By general, since it is the fruit oftentimes of laborious what rules can parliament procoed? How shall research, or demands a memory stored with longthey pronounce a decision to be wrong, where collected erudition. there exists no acknowledged measure or standard of what is right; which, in a multitude of instances, would be the case, if prior determinations were no longer to be appealed to ?
To a mind revolving upon the subject of huDiminishing the danger of partiality, is one man jurisprudence, there frequently occurs this thing gained by adhering to precedents; but not question :- Why, since the maxims of natural the principal thing. The subject of every system justice are few and evident, do there arise so many of laws must expect that decision in his own case, doubts and controversies in their application ? Or, which he knows that others have received in in other words, how comes it to pass, that although cases similar to his. If he expect not this, he the principles of the law of nature be simple, anil can expect nothing. There exists no other rule or for the most part sufficiently obvious, there should
zxist, nevertheless, in every system of municipal | than the rest, as to recompense the inconveniency laws, and in the actual administration of relative of an alteration. In all such cases, the law of justice, numereus uncertainties and acknowledged nature sends us to the law of the land. She diditñculty? Whence, it may be asked, so much rects that either some fixed rule be introduced by room for litigation, and so many subsisting dis an act of the legislature, or that the rule which putes, if the rules of human duty be neither ob- accident, or custom, or common consent, hath alsure nor dubious ? If a system of morality con- ready established, be steadily maintained. Thus, taining both the precepts of revelation and the in the descent of lands, or the inheritance of perdeductions of reason, may be comprised within sonals from intestate proprietors, whether the the compass of one moderate volume; and the kindred of the grandmother, or of the great-grandmoralist be able, as he pretends, to describe the mother, shall be preferred in the succession; rights and obligations of mankind, in all the dif- whether the degrees of consanguinity shall be comferent relations they may hold to one another; puted through the common ancestor, or from him; what need of those codes of positive and particu- whether the widow shall take a third or a moiety har institutions, of those tomes of statutes and re- of her husband's fortune; whether sons shall be ports, which require the employment of a long preferred to daughters, or the elder to the younger; lite even to peruse? And this question is immedi- | whether the distinction of age shall be regarded ately connected with the argument which has amongst sisters, as well as between brothers; in been discussed in the preceding paragraph: for, these, and in a great variety of questions which unless there be found some greater uncertainty in the same subject supplies, the law of nature deterthe law of nature, or what may be called natural mines nothing. The only answer she returns to equity, when it comes to be applied to real cases our inquiries is, that some certain and geneand to actual adjudication, than what appears in ral rule be laid down by public authority; be the rules and principles of the science, as delivered obeyed when laid down; and that the quiet of the in the writings of those who treat of the subject, country be not disturbed, nor the expectation of it were better that the determination of every cause heirs frustrated, by capricious innovations. This should be left to the conscience of the judge, silence or neutrality of the law of nature, which we unfettered by precedents and authorities; since have exemplified in the case of intestacy, holdsconthe very purpose for which these are introduced, cerning a great part of the questions that relate to is to give a certainty to judicial proceedings, the right or acquisition of property. Recourse then which such proceedings would want without must necessarily be had to statutes, or precedents, them.
or usage, to fix what the law of nature has left Now to account for the existence of so many loose. The interpretation of these statutes, the sources of litigation, notwithstanding the clearness search after precedents, the investigation of cusand perfection of natural justice, it should be ob- toms, compose therefore an unavoidable, and at served, in the first place, that treatises of morality the same time a large and intricate, portion of foalways suppose facts to be ascertained; and not rensic business. Positive constitutions or judicial only so, but the intention likewise of the parties authorities are, in like manner, wanted to give to be known and laid bare. For example: when precision to many things which are in their nature we pronounce that promises ought to be fulfilled indeterminate. "The age of legal discretion; at in that sense in which the promiser apprehended, what time of life a person shall be deemed comat the time of making the promise, the other party, petent to the performance of any act which may received and understood it: the apprehension of bind his property; whether at twenty, or twentyone side, and the expectation of the other, must one, or earlier or later, or at some point of tiine be discovered, before this rule can be reduced to between these years; can only be ascertained by a practice, or applied to the determination of any positive rule of the society to which the party beactual dispute. Wherefore the discussion of facts longs. The line has not been drawn by nature; which the moralist supposes to be settled, the the human understanding advancing to maturity discovery of intentions which he presumes to be by insensible degrees, and its progress varying in known, still remain to exercise the inquiry of different individuals. Yet it is necessary, for the courts of justice. And as these facts and inten- sake of mutual security, that a precise age be fixed, tions are often to be inferred, or rather conjectured, and that what is fixed be known to all. It is on from obscure indications, from suspicious testimo- these occasions that the intervention of law supny, or from a comparison of opposite and contend-plies the inconstancy of nature. Again, there ing probabilities, they afford a never-failing supply are other things which are perfectly arbitrary, of doubt and litigation. For which reason, as hath and capable of no certainty but what is given to been observed in a former part of this work, the them by positive regulation. It is fit that a limited science of morality is to be considered rather as a time should be assigned to defendants, to plead to direction to the parties, who are conscious of their the complaints alleged against them; and also own thoughts and motives, and designs, to which that the default of pleading within a certain time consciousness the teacher of morality constantly should be taken for a confession of the charge: appeals; than as a guide to the judge, or to any but to how many days or months that term should tard person, whose arbitration must proceed upon be extended, though necessary to be known with rules of evidence, and maxims of credibility, with certainty, cannot be known at all by any informawhich the moralist has no concern.
tion which the law of nature affords. And the Secondly, there exists a multitude of cases, in same remark seems applicable to almost all those which the law of nature, that is, the law of public rules of proceeding, which constitute what is callexpediency, prescribes nothing, except that some ed the practice of the court: as they cannot be certain rule be adhered to, and that the rule ac- traced out by reasoning, they must be settled by tually established, be preserved; it either being authority. indifferent what rule obtains, or, out of many Thirdly; in contracts, whether express or imrules, no one being so much more advantageous plied, which involve a great number of conditions;
les in those which are entered into between mas nature commands, that reparation be made; and ters and servants, principals and agents; many adds to her command, that, when the aggressor also of merchandise, or for works of art; in some and the sufferer disagree, the damage be assessed likewise which relate to the negotiation of money by authorised and indifferent arbitrators. Here or bills, or to the acceptance of credit or security: then recourse must be had to courts of law, not the original design and expectation of the parties only with the permission, but in some measure by was, that both sides should be guided by the course the direction, of natural justice. and custom of the country in transactions of the Sixthly; when controversies arise in the intersame sort. Consequently, when these contracts pretation of written laws, they for the most part come to be disputed, natural justice can only refer arise upon some contingency which the composer to that custom Bút as such customs are not al- of the law did not foresee or think of. In the adways sufficiently uniform or notorious, but often judication of such cases, this dilemma presents to be collected from the production and compa- itself; if the laws be permitted to operate only rison of instances and accounts repugnant to one upon the cases which actually were contemplated another; and each custom being only that, after by the law-makers, they will always be found deall, which amongst a variety of usages seems to fective: if they be extended to every case to which predominate; we have here also ample room for the reasoning, and spirit, and expediency, of the doubt and contest.
provision seem to belong, without any farther eviFourthly; as the law of nature, founded in the dence of the intention of the legislature, we shall very construction of human society, which is form- allow to the judges a liberty of applying the law, ed to endure through a series of perishing genes which will fall very little short of the power
of rations, requires that the just engagements a man making it. If a literal construction be adhered to, enters into should continue in force beyond his the law will often fail of its end; if a loose and own life ; it follows, that the private rights of per- vague exposition be admitted, the law might as sons frequently depend upon what has been trans- well have never been enacted; for this license acted, in times remote from the present, by their will bring back into the subject all the discretion ancestors or predecessors, by those under whom and uncertainty which it was the design of the lethey claim, or to whose obligations they have suc- gislature to take away. Courts of justice are, and ceeded. Thus the questions which usually arise always must be, embarrassed by these opposite between lords of manors and their tenants, be difficulties; and, as it never can be known beforetween the king and those who claim royal fran- hand, in what degree either consideration may chises, or between them and the persons affected prevail in the mind of the judge, there remains an by these franchises, depend upon the terms of the unavoidable cause of doubt, and a place for conoriginal grant. In like manner, every dispute tention. concerning tithes, in which an exemption or com Seventhly; the deliberations of courts of jusposition is pleaded, depends upon the agreement tice upon every new question, are encumbered which took place between the predecessor of the with additional difficulties, in consequence of the claimant and the ancient owner of the land. The authority which the judgment of the court posappeal to these grants and agreements is dictated sesses, as a precedent to future judicatures; which by natural equity, as well as by the municipal authority appertains not only to the conclusions the law; but concerning the existence, or the condi- court delivers, but to the principles and arguments tions, of such old covenants, doubts will perpetu- upon which they are built
. The view of this efally occur, to which the law of nature affords no fect makes it necessary for a judge to look beyond solution. The loss or decay of records, the pe- the case before him; and, beside the attention he rishableness of living memory, the corruption and owes to the truth and justice of the cause between carelessness of tradition, all conspire to multiply the parties, to reflect whether the principles, and uncertainties upon this head; what cannot be maxims, and reasoning, which he adopts and auproduced or proved, must be left to loose and fal. thorises, can be applied with safety to all cases lible presumption. Under the same head may which admit of a comparison with the present. The be included another topic of altercation ;-the decision of the cause, were the effects of the detracing out of boundaries, which time, or neglect, cision to stop there, might be easy: but the conor unity of possession, or mixture of occupation, has sequence of establishing the principle which confounded or obliterated. To which should be such a decision assumes, may be difficult, though added, a difficulty which often presents itself in of the utmost importance, to be foreseen and regudisputes concerning rights of way, both public lated. and private, and of those easements which one Finally ; after all the certainty and rest that can man claims in another man's property, namely, be given to points of law, either by the interposi that of distinguishing, after a lapse of years, tion of the legislature or the authority of precethe use of an indulgence from the exercise of a dents, one principal source of disputation, and into right.
which indeed the greater part of legal controversies Fifthly; the quantity or extent of an injury, may be resolved, will remain still, namely, “the even when the cause and author of it are known, competition of opposite analogies."
When a is often dubious and undefined. If the injury, point of law has been once adjudged, neither that consists in the loss of some specific right, the va- question, nor any which completely, and in all its lue of the right measures the amount of the in circumstances, corresponds with that, can be jury: but what a man may have suffered in brought a second time into dispute: but questions his person, from an assault; in his reputation, by arise which resemble this only indirectly and in slander; or in the comfort of his life, by the part, in certain views and circumstances, and which seduction of a wife or daughter; or what sum of may seem to hear an equal or a greater affinity to money shall be deemed a reparation for damages other adjudged cases; questions which can be such as these; cannot be ascertained by any rules brought within any fixed rule only by analogy, which the law of nature supplies. The law of and which hold a relation by analogy to different
rules. It is by the urging of the different analo- rule are not so detrimental, as the rule itself is ungies that the contention of the bar is carried on: reasonable ;-in criminal prosecutions, it operates so it is in the comparison, adjustment, and re- considerably in favour of the prisoner: for if a conciliation of them with one another; in the juror find it necessary to surrender to the obstidiscerning of such distinctions ; and in the fram- nacy of others, he will much more readily resign ing of such a determination, as may either save his opinion on the side of mercy than of condemthe various rules alleged in the cause, or if that nation : in civil suits, it adds weight to the direcbe impossible, may give up the weaker analogy to tion of the judge; for when a conference with the stronger; that the sagacity and wisdom of the one another does not seem likely to produce, in court are seen and exercised. Amongst a thou- the jury, the agreement that is necessary, they sand instances of this, we may eite one of general will naturally close their disputes by a common notoriety, in the contest that has lately been agi- submission to the opinion delivered from the tated concerning literary property:—The personal bench. However, there seems to be less of the inlustry which an author expends upon the com- concurrence of separate judgments in the same position of his work, bears so near a resemblance conclusion, consequently less assurance that the to that by which every other kind of property is conclusion is founded in reasons of apparent truth earned, or deserved, or acquired; or rather there and justice, than if the decision were left to a esists such a correspondency between what is plurality, or to some certain majority of voices. created by the study of man's mind, and the pro
The second circumstance in our constitution duction of his labour in any other way of applying which, however it may succeed in practice, does it, that he seems entitled to the same exclusive, not seem to have been suggested by any intelliassignable, and perpetual, right in both ; and that gible fitness in the nature of the thing, is the right to the same protection of law. This was choice that is made of the House of Lords as a the analogy contended for on one side. On the court of appeal from every civil court of judicature other hand, a book, as to the author's right in it, in the kingdom; and the last also and highest apappears siinilar to an invention of art, as a ma- peal to which the subject can resort. chine, an engine, a medicine: and since the law pears to be nothing in the constitution of that pernits these to be copied, or imitated, except assembly; in the education, habits, character, or where an exclusive use or sale is reserved to the professions, of the members who compose it; in inventor by patent, the same liberty should be al- the mode of their appointment, or the right by lowed in the publication and sale of books. This which they succeed to their places in it; that was the analogy maintained by the advocates of an should qualify them for this arduous office; exopen trade. And the competition of these oppo- cept perhaps, that the elevation of their rank and site analogies constituted the difficulty of the case, fortune affords a security against the offer and as far as the same was argued, or adjudged, upon influence of small bribes. Officers of the army principles of common law.-One example may and navy, courtiers, ecclesiastics; young men serve to illustrate our meaning: but whoever takes who have just attained the age of twenty-one, up a volume of Reports, will find most of the ar- and who have passed their youth in the dissipation guments it contains, capable of the same analysis: and pursuits which commonly accompany the although the analogies, it must be confessed, are possession or inheritance of great fortunes ; counsometimes so entangled as not to be easily unra- try-gentlemen, occupied in the management of Felled, or even perceived.
their estates, or in the care of their domestic conDoubtful and obscure points of law are not cerns and family interests; the greater part of the bowever nearly so numerous as they are appre- assembly born to their station, that is, placed in it hended to be. Out of the multitude of causes by chance; most of the rest advanced to the peerwhich, in the course of each year, are brought to age for services, and from motives, utterly uncontrial in the metropolis, or upon the circuits, there nected with legal erudition :—these men compose are few in which any point is reserved for the the tribunal, to which the constitution entrusts judgment of superior courts. Yet these few con- the interpretation of her laws, and the ultimate tain all the doubts with which the law is charge decision of every dispute between her subjects. able: for as to the rest, the uncertainty, as hath These are the men assigned to review judgments been shown above, is not in the law, but in the of law, pronounced by sages of the profession, means of human information.
who have spent their lives in the study and practice of the jurisprudence of their country. Such
is the order which our ancestors have established. There are two peculiarities in the judicial con- The effect only proves the truth of this maxim;stitution of this country, which do not carry with “That when a single institution is extremely disthem that evidence of their propriety which recom- sonant from other parts of the system to which it mends almost every other part of the system. The belongs, it will always find some way of reconfirst of these is the rule which requires that juries ciling itself to the analogy which governs and perbe unanimous in their verdicts. To expect that vades the rest." By constantly placing in the twelve men, taken by lot out of a promiscuous House of Lords some of the most eminent and multitude, should agree in their opinion upon experienced lawyers in the kingdom; by calling to points confessedly dubious, and upon which of their aid the advice of the judges, when any abtentimes the wisest judgments might be holden stract question of law awaits their determinain suspense; or to suppose that any real una- tion; by the almost implicit and undisputed deTiimity or change of opinion, in the dissenting ference, which the uninformed part of the house jurors, could be procured by confining them until find it necessary to pay to the learning of their they all consented to the same verdict, bespeaks colleagues ; the appeal to the House of Lords bemore of the conceit of a barbarous age, than of the comes in fact an appeal to the collected wisdom policy which could dictate such an institution as of our supreme courts of justice ; receiving indeed that of juries. Nevertheless, the effects of this solemnity, but little perhaps of direction, from
the presence of the assembly in which it is heard | fended from the effects of the crime, by any other and determined.
expedient. The sanguinary laws which have been These, however, even if real, are minute imper- made against counterfeiting or diminishing the fections. A politician who should sit down to gold coin of the kingdom might be just until the delineate a plan for the dispensation of public jus- method of detecting the fraud, by weighing the tice, guarded against all access to intluence and money, was introduced into general usage. Since corruption, and bringing together the separate ad that precaution was practised, these laws have vantages of knowledge and impartiality, would slept; and an execution under them at this day find, when he had done, that he had been trans- would be deemed a measure of unjustifiable se cribing the judicial constitution of England. And verity. The same principle accounts for a circumit may teach the most discontented amongst us stance which has been often censured as an abto acquiesce in the government of his country, surdity in the penal laws of this, and of most to reflect, that the pure, and wise, and equal ad- modern nations, namely, that breaches of trust ars ministration of the laws, forms the first end and either not punished at all, or punished with less blessing of social union ; and that this blessing is rigour than other frauds.—Wherefore is it, some enjoyed by him in a perfection, which he will seek have asked, that a violation of confidence, whicb in vain in any other nation of the world. increases the guilt, should mitigate the penalty ?
This lenity, or rather forbearance, of the laws, is founded in the most reasonable distinction. A
due circumspection in the choice of the persons CHAPTER IX.
whom they trust; caution in limiting the extent Of Crimes and Punishments.
of that trust; or the requiring of sufficient secu
rity for the faithful discharge of it, will cornmonly The proper end of human punishment is not guard men from injuries of this description; and the satisfaction of justice, but the prevention of the law will not interpose its sanctions to protect crimes. By the satisfaction of justice, I mean the negligence and credulity, or to supply the place 0. retribution of so much pain for so much guilt; domestic care and prudence. To be convinced which is the dispensation we expect at the hand that the law proceeds entirely upon this considera of God, and which we are accustomed to consider tion, we have only to observe, that where the conas the order of things that perfect justice dictates tidence is unavoidable, -where no practicable vigiand requires. In what sense, or whether with truth lance could watch the offender, as in the case of in any sense, justice may be said to demand the theft committed by a servant in the shop or dwellpunishment of offenders, I do not now inquire: ing house of his master, or upon property to which but I assert, that this demand is not the motive or he must necessarily have access, -the sentence of occasion of human punishment. What would it the law is not less severe, and its execution con be to the magistrate, that offences went altogether monly more certain and rigorous, than if no trust unpunished, if the impunity of the offenders were at all had intervened. followed by no danger or prejudice to the common It is in pursuance of the same principle, which wealth? The fear lest the escape of the criminal pervades indeed the whole system of penal jurisshould encourage him, or others by his example, prudence, that the facility with which any species to repeat the same crime, or to commit different of crimes is perpetrated, has been generally deemcriines, is the sole consideration which authorises ed a reason for aggravating the punishment. Thus, the infliction of punishment by human laws. Now sheep-stealing, horse-stealing, the stealing of cloth that, whatever it he, which is the cause and end from tenters or bleaching grounds, by our laws, of the punishment, ought undoubtedly to regulate subject the offenders to sentence of death: not that the measure of its severity. But this cause ap- | these crimes are in their nature more heinous than pears to be founded, not in the guilt of the offender, many simple felonies which are punished by imbut in the necessity of preventing the repetition prisonment or transportation, but because the proof the offence : and hence results the reason, that perty, being more exposed, requires the terror of crimes are not by any government punished in pro- capital punishment to protect it. This severity portion to their guilt, nor in all cases ought to be would be absurd and unjust, if the guilt of the of
0, but in proportion to the difficulty and the ne- fender were the immediate cause and measure of cessity of preventing them. Thus the stealing of the punishment; but is a consistent and regular gools privately out of a shop may not, in its moral consequence of the supposition, that the right of quality, be more criminal than the stealing of them punishment results from the necessity of preventout of a house ; yet being equally necessary and ing the crime ; for if this be the end proposed, the more difficult to he prevented, the law, in certain severity of the punishment must be increased in circumstances, denounces against it a severer pun- proportion to the expediency and the difficulty of ishment. The crime must be prevented by some attaining this end ; that is, in a proportion commeans or other; and consequently, whatever pounded of the mischief of the crime, and of the means appear necessary to this end, whether they ease with which it is executed.-The difficulty of be proportionable to the guilt of the criminal or not, discovery is a circumstance to be included in the are adopted rightly, because they are adopted upon same consideration. It constitutes indeed, with the principle which alone justifies the intliction of respect to the crime, the facility of which we punishment at all. From the same consideration it speak. By how much therefore the detection of also follows, that punishment ought not to be em an offender is more rare and uncertain, by so much ployed, much less rendered severe, when the crime the more severe must be the punishment when he can be prevented by any other means. Punishment is detected. Thus the writing of incendiary letters, is an evil to which the magistrate resorts only from though in itself a pernicious and alarming injury, its being necessary to the prevention of a greater. calls for a more condign and exemplary punishThis necessity does not exist, when the end may ment, by the very obscurity with which the crime e attained, that is, when the public may be dois committed,