, are restraints from plunder, from
acts of publick violence, and undisguised oppression. The ferocity of
our ancestors, as of all other nations, produced not fraud, but rapine.
They had not yet learned to cheat, and attempted only to rob. As manners
grow more polished, with the knowledge of good, men attain, likewise,
dexterity in evil. Open rapine becomes less frequent, and violence gives
way to cunning. Those who before invaded pastures and stormed houses,
now begin to enrich themselves by unequal contracts and fraudulent
intromissions.

It is not against the violence of ferocity, but the circumventions of
deceit, that this law was framed; and, I am afraid, the increase of
commerce, and the incessant struggle for riches, which commerce excites,
give us no prospect of an end speedily to be expected of artifice and
fraud. It, therefore, seems to be no very conclusive reasoning, which
connects those two propositions:--'the nation is become less ferocious,
and, therefore, the laws against fraud and covin shall be relaxed.'

Whatever reason may have influenced the judges to a relaxation of the
law, it was not that the nation was grown less fierce; and, I am afraid,
it cannot be affirmed, that it is grown less fraudulent.

Since this law has been represented as rigorously and unreasonably
penal, it seems not improper to consider, what are the conditions and
qualities that make the justice or propriety of a penal law.

To make a penal law reasonable and just, two conditions are necessary,
and two proper. It is necessary that the law should be adequate to its
end; that, if it be observed, it shall prevent the evil against which it
is directed. It is, secondly, necessary that the end of the law be of
such importance as to deserve the security of a penal sanction. The
other conditions of a penal law, which, though not absolutely necessary,
are, to a very high degree, fit, are, that to the moral violation of the
law there are many temptations, and, that of the physical observance
there is great facility.

All these conditions apparently concur to justify the law which we are
now considering. Its end is the security of property, and property very
often of great value. The method by which it effects the security is
efficacious, because it admits, in its original rigour, no gradations of
injury; but keeps guilt and innocence apart, by a distinct and definite
limitation. He that intromits, is criminal; he that intromits not, is