given up without having come to a final hearing. The legislative question having been thus disposed of, for a time, the pamphlet itself remains as a memorial of the author's views and reasonings upon one branch of the criminal law of our land.

An argument which submits to competent authority, does not immediately forfeit, as a matter of course, all esteem either with the author of it, or with many of his reflecting readers, who, although they delegate their public voice, reserve their judgment to themselves. In the present instance, if the learned author still holds the same unshaken confidence in the justness of his principles, he probably will not consent to abandon, on the first failure, this attempt to humanize the laws of his country in the few cases where they appear to have departed from their usual spirit of a judicious and temperate severity. But were all expectation gone, of seeing his proposed improvement carried into effect, we should only be the more inclined to bear our humble testimony to the principle of it, and pay a few literary obsequies to a fallen speculation. By the law as it now stands, the offences which we have already described are punishable with death. But the statutes which enjoin that punishment are not put in execution, except in a very few rare examples. From the records of the criminal courts, (Observ. p. 11,) we find that, in a period of seven years, from 1802 to 1809, inclusive, out of 508 persons, capitally convicted in London and Middlesex, 67 suffered the sentence of the law; these convictions including, it must be observed, every species of capital offence. By other tables of information it appears that, within the same period, there were committed to Newgate for trial, charged with the crime of stealing in dwelling-houses, 1013 persons; of shoplifting 859. The number of capital convictions obtained upon these charges is not easy to be ascertained: but of the persons so charged, one only was executed.

Such are some of the phenomena of the criminal courts at a recent time; and from them it is plain that the letter of the penal law, and the administration of it, as to the statutes already cited, are as widely at variance with each other as life and death can be. The documents that have been published are not so complete as could be wished in some other points, but particularly in that which respects the comparison of the actual convictions under each statute, with the instances in which the penalty has been enforced. But by arguing from the two general statements which we have just now given, and assuming, as a probable conjecture, that some proportion between a fourth and an eighth of the 1872 charged with those larcenies may have been found guilty of the capital part, the result will be that the law should seem to hold its course of rigour, without any violent inequality, against the more

atrocious

atrocious crimes, while the sentence of it is so rarely enforced upon the offences of capital theft, that usage has, in fact, anticipated that repeal of the statutes in question which it has been proposed to the legislature to enact.

No one blames this laxity in the administration of laws of unmeasured and revolting rigour. It brings them more nearly to the point where they ought to be. It vindicates the national character; upholds the distinction between cruelty and justice; and puts the means of redress on better conditions to the community. Those tribunals which have thought to keep order by a ferocious system of vindictive justice, have forgotten that such a system maintained in vigour must do away the dutiful respect and confidence which human beings ought to feel towards the laws under which they live; that it must alienate the humane and moderate, who most deserve to be protected, and harden the minds of a rougher cast by the spectacle of sanguinary or frequent executions. When life is made a cheap and vulgar thing by the laws themselves, to what principle of human nature can they apply for an effectual sanction? It may be right to remind men who are for making thorough work in the business of legislation, that it is better that some evils should be endured than that others should be done. All punishment is a sore and painful evil, not more to the offender than to the state which inflicts it. Not only, therefore, does it become a duty in the state to take care that the least measure of punishment that is sufficient, be inflicted, but sometimes to forego a remedy, which would put the common sense of humanity and justice to too severe a trial. Laws cannot do every thing we might wish, and we do wrong in acting as if we thought they could when strained to it. As they are human contrivances, partial inefficiency cannot be a heavy reproach to them; but as they are made by man against man, extreme severity must be so. Let it be granted that the first duty of the legislature is to give the citizen protection in his rights and property. Unquestionable, however, as this duty is, the performance of it must be attempted with those abatements and qualifications of prudence, which will give a more beneficial enjoyment of the object, than a keen, morose, and peremptory pursuit of it at all hazards. By no severity, inflicted as well as denounced, could crimes ever be wholly extirpated. Beyond a certain point, therefore, there may be an increase of severity that is a useless excess, and gains nothing but odium and obstruction to the course of justice. The true aim of legal rigour must be to make a compromise with things which it cannot subdue, and abate the prevalence of fraud and outrage so far as to render life tolerably secure. On this moderated scheme, which agrees best with the imperfection of the world in its means of power, and its destiny of happiness, law may begin to econo

VOL. VII. NO. XIII.

mize

mize in the evils which it is compelled to employ, and abate something of the sternuess of its retaliations and inflictions.

Whether the three particular statutes we have to consider were ever meant to be literally executed has been made a doubt. That they are not executed, is the fact; and that they ought not, is on all hands admitted. They who are anxious for reform, think the result of the practice is right in the main, but desire to see the sanguinary statutes abolished, and other provisions introduced in their place more congenial to the spirit and opinions of the age, and more consistent with the actual administration of justice. Their request does not seem very unreasonable. They desire to have justice done according to the laws rather than in spite of them.

That lenity, which the sense and usage of the times have substituted for a regular execution of the law, is a benefit upon the whole, but obtained at the price of many and great inconveniences. For, first of all, in how many instances do the parties themselves, who have been sufferers, decline to prosecute, or to urge the prosecution, deterred by the inordinate hardship of the fate to which they may by possibility bring the culprit? The loss of property is a wrong which men do not bear with very remarkable patience; but neither the goading sense of that wrong, nor obedience to public duty, will be strong enough to carry men through the anxieties of a capital prosecution, unless they are rather more vindictive than they ought to be, or hardier patriots than can be expected. Whereas it has been said that sanguinary penalties rarely enforced, can inspire no terror; we conceive this to be a mistake. They do often inspire a very effectual terror into the person who is injured; though it may be doubted how far he is exactly the proper object of legal intimidation. Seldom as it is put in force, the very name and apprehension of the sentence of death is a detriment to the cause of justice with him, however weak it may be as a check to the violation of it with the offender. In this way, severe statutes become often a charter of impunity to the crimes which they were intended to punish.

Suppose, however, that a prosecutor is found, whether honest or vindictive; that a man who has lost a piece of cotton from his shop, or a few silver spoons from his closet, undertakes, with great labour and expense to himself, to push the offender to the peril of his life; we are only one step in advance. Few are so little acquainted with the proceedings in a court as not to know that the evidence brought there is way-laid with the same scruples which impede the first movements of the prosecution; that witnesses do not unfrequently appear to disguise and withhold the truth, the whole of which they are sworn to speak, from the dread of swearing away,' how innocently soever, a man's life, for a matter of five

shillings,

shillings; and also that juries, under the same influence of tenderness towards that sacred deposit of life, have been led to make up their verdict by some other rule of judgment than that which their oath prescribes; and, finally, that when these several arbitrary corrections have been applied to the law, and rescued many from its grasp, the hand of justice is stayed towards others, after sentence passed, and when it is in the very act to strike, by the intercession, or the immediate mercy of the bench; so that the whole train of the judicial proceeding might be taken for an arrangement to protect the culprit, and to save him, if not from all punishment, certainly from that which the legislature has appointed.

Now, supposing that the ultimate distribution of penal justice by a mode so extraordinary is as good to the full for the present moment, as it would be by an amended system, explicitly laid down in law, which, however, is too much to be conceded, still the mode seems fraught with irregularities and inconveniences which it might be expedient to correct. The tone of lenient and equitable dealing, which has made its way into our courts, would be a more secure and legitimate benefit if it were invested with the force of the legislative sanction. We have it and have it not. It is only an equivocal possession. Being a practice, why should it not be a law? It is a wholesome irregularity; why not adopt it into the public code ? As the matter now is, courts of justice, most contrary to their true functions, become the legislative body: for such they are when the law is to be modified by them in the application of it to the particular case, according to measures and principles which are no where to be found but in their own occasional and recent practice. Most thankfully do we acknowledge that English courts are now guided by an enlightened feeling of what is upright and just. But what security is there for the permanence of this spirit? or for its steady and uniform tenour of operation, while it continues? The fluctuations that may, nay, must ensue, from differences of character in the judge or jury; from his particular course of legal observation, or his construction of what the public good requires; seem far to exceed those useful or passable inequalities which come within the meaning of a reasonable discretion. An ex post facto law is universally held to be a grievance; but are there not many of the objectionable ingredients of such a law contained in a practice which leaves it in the breast of jurors or judges to decide by what name the offence shall be described, and to vary the sentence from a short imprisonment to the loss of life? In this latitude of power the joint interpretation of the several members of the court does, to all intents and purposes, make the law, for the immediate case; an interpretation which is quite a precarious

and modern thing, guarded by no positive rules of statute, precedent, or any other authentic and systematic direction.

It is a truth we all believe, that known and written laws are the only safeguard of liberty, justice, and public order. It is another, as little to be denied, that no provisional wisdom can draw out a plan of statutes so complete in the enumeration of the lower genera and species of crime as to present a definite idea of the guilt and measure of punishment that shall tally exactly with the real case, and reduce the whole affair of justice to a technical reference to the statute-book. A legislative Linnæus is out of the question. The operose detail could never be carried far enough for the end in view, though it might soon be done to an extent which would cramp the interests of justice, and might lower that high sense of duty and the superior intelligence which are now seen upon the bench, so greatly to the public benefit.

Both of these maxims being equally true, and, perhaps, equally important, it remains to harmonize them, and make them act together. How far each should be studied is difficult to define in words, and is best determined by the occasion. But we hope that no statesman will content himself with standing exclusively on either of them alone, or contend so much for the ascendency of the one as virtually to set the other aside. On the judicious ac commodation of conflicting principles, and a mixed feeling for different ends, depends almost every thing practically useful in matters of government and legislation. Society exists by the union of restraint and freedom; and there must be more or less of these two qualities in every subordinate function in it. But those who plead for the expedience of bringing the administration of the penal law more precisely under the dominion of known restrictions, can hardly be thought to encroach too far on the freedom of courts, when they except from it the general commutation of life and death, and would take from them the power of pronouncing a sentence which, of their own accord, they forbear to execute above once in three or four hundred times. Nor is it a reform that threatens to encumber the statute law very grievously, when they would select some of the chief and palpable differences which common sense might point out, in the enormity of the same general offence, and make those differences the subject of a distinct enactment. In doing which they would willingly avail themselves of every light and assistance that can be had from a review of what has been the practice.

But it is urged that the threat of death is of use, under all the infrequency of it; that men fear what may be inflicted be it ever so seldom. We may well hesitate to admit this; for, considering

the,