with the crime of stealing in dwelling-houses, 599 men and 414 women; and charged with the crime of shop-lifting, 506 men and 353 women; in all 1,872 persons, and of these only one was executed.

In how many instances such crimes have been committed, and the persons robbed have not proceeded so far against the offenders as even to have them committed to prison: how many of the 1,872 thus committed were discharged, because those who had suffered by their crimes would not appear to give evidence upon their trial in how many cases the witnesses who did appear withheld the evidence that they could have given: and how numerous were the instances in which juries found a compassionate verdict, in direct contradiction to the plain facts clearly established before them, we do not know; but that these evils must all have existed to a considerable degree, no man can doubt.

Notwithstanding these facts, however, and whether this mode of administering justice be the result of design or of accident, there are many persons who conceive that it is upon the whole wise and beneficial to the community.

It cannot, therefore, but be useful to examine the arguments by which it is defended. Discussions on such subjects are always productive of good. They either lead to important improvements of the law, or they afford additional reasons for being satisfied with what is already established.

It is alleged by those who approve of the present practice, that the actions which fall under the cognizance of human laws are so varied by the circumstances which attend them, that if the punishment appointed by the law were invariably inflicted for the same species of crime, it must be too severe for the offence, with the extenuating circumstances which in some instances attend it, and it must in others fall far short of the moral guilt of the crime, with its accompanying aggravations: that the only remedy for this, the only way in which it can be provided that the guilt and the punishment shall in all cases be commensurate, is to announce death as the appointed punishment, and to leave a wide discretion in the judge of relaxing that severity, and substituting a milder sentence in its place.

If this be a just view of the subject, it would render the system more perfect, if in no case specific punishments were enacted, but it were always left to the judge, after the guilt of the criminal had been ascertained, to fix the punishment which he should suffer, from the severest allowed by our law to the slightest penalty which it knows: and yet what Englishman would not be alarmed at the idea of living under a law which was thus uncertain and unknown, and of being continually exposed to the arbitrary severity of a magistrate? All men would be shocked at a law which should declare that the offences of stealing in shops or dwelling-houses, or on board ships, property of the different values mentioned in the several statutes, should in general be punished with transportation, but that the King and his judges should have the power, under circumstances of great aggravation, respecting which they should be the sole arbiters, to order that the offender should suffer death; yet such is in practice the law of England.

In some respects, however, it would be far better that this ample and awful discretion should be formally vested in the judges, than

that the present practice should obtain; for it would then be executed under a degree of responsibility which does not now belong to it. If a man were found guilty of having pilfered in a dwelling-house, property worth forty shillings, or in a shop that which was of the value only of five shillings, with no one circumstance whatever of aggravation, what judge whom the constitution had intrusted with an absolute discretion, and had left answerable only to public opinion for the exercise of it, would venture for such a transgression to inflict the punishment of death: but if in such a case, the law having fixed the punishment, the judge merely suffers that law to take its course, and does not interpose to snatch the miserable victim from his fate, who has a right to complain? A discretion to fix the doom of every convict, expressly given to the judges, would in all cases be most anxiously and scrupulously exercised; but appoint the punishment by law, and give the judge the power of remitting it, the case immediately assumes a very different complexion. A man is convicted of one of those larcenies and is besides a person of

made capital by law, very bad character.

It is not to such a man

that mercy is to be extended; and, the sentence

of the law denouncing death, a remission of it must be called by the name of mercy; the man, therefore, is hanged; but in truth it is not for his crime that he suffers death, but for the badness of his reputation. Another man is suspected of a murder, of which there is not legal evidence to convict him; there is proof, however, of his having committed a larceny to the amount of forty shillings in a dwelling-house, and of that he is convicted. He, too, is not thought a fit object of clemency, and he is hanged, not for the crime of which he has been convicted, but for that of which he is only suspected. A third upon his trial for a capital larceny attempts to establish his innocence by witnesses whom the jury disbelieve, and he is left for execution, because he has greatly enhanced his guilt by the subornation of perjured witnesses. In truth, he suffers death, not for felony, but for subornation of perjury, although that be not the legal punishment of this offence.

If so large a discretion as this can safely be intrusted to any magistrates, the legislature ought at least to lay down some general rules to direct or assist them in the exercise of it, that