there might be, if not a perfect uniformity in the administration of justice, yet the same spirit always prevailing, and the same maxims always kept in view; and that the law, as it is executed, not being to be found in any written code, might at least be collected with some degree of certainty from an attentive observation of the actual execution of it. If this be not done, if every judge be left to follow the light of his own understanding, and to act upon the principles and the system which he has derived partly from his own observation, and his reading, and partly from his natural temper and his early impressions, the law, invariable only in theory, must in practice be continually shifting with the temper, and habits, and opinions of those by whom it is administered. No man can have frequently attended our criminal courts, and have been an attentive observer of what was passing there, without having been deeply impressed with the great anxiety which the judges feel to discharge most faithfully their important duties to the public. Their perfect impartiality, their earnest desire in every case to prevent a failure of justice, to punish guilt, and to protect innocence, and the total absence

with them of all distinctions between the rich and the poor, the powerful and the unprotected, are matters upon which all men are agreed. In these particulars the judges are all actuated by one spirit, and the, practice of all of them is uniform. But in seeking to attain the same object, they frequently do, and of necessity must, from the variety of opinions which must be found in different men, pursue very different courses. The same benevolence and humanity, understood in a more confined or a more enlarged sense, will determine one judge to pardon and another to punish. It has often happened, it necessarily must have happened, that the very same circumstance which is considered by one judge as matter of extenuation, is deemed by another a high aggravation of the crime. The former good character of the delinquent, his having come into a country in which he was a stranger to commit the offence, the frequency or the novelty of the crime, are all circumstances which have been upon some occasions considered by different judges in those opposite lights: and it is not merely the particular circumstances attending the crime, it is the crime itself, which different judges sometimes consider in quite different points of view.

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Not a great many years ago, upon the Norfolk circuit, a larceny was committed by two men in a poultry yard, but only one of them was apprehended; the other having escaped into a distant part of the country, had eluded all pur suit. At the next assizes the apprehended thief was tried and convicted; but Lord Loughbo rough, before whom he was tried, thinking the offence a very slight one, sentenced him only to a few months imprisonment. The news of this sentence having reached the accomplice in his retreat, he immediately returned, and surrendered himself to take his trial at the next assizes. The next assizes came; but, unfortu nately for the prisoner, it was a different judge who presided; and still more unfortunately, Mr. Justice Gould, who happened to be the judge, though of a very mild and indulgent disposition, had observed, or thought he had observed, that men who set out with stealing fowls, generally end by committing the most atrocious crimes; and building a sort of system upon this observation, had made it a rule to punish this offence with very great severity, and he accordingly, to the great astonishment of this unhappy man, sentenced him to be transported. While one was taking his departure for Botany Bay, the term of the other's impri

sonment had expired; and what must have been the notions which that little public, who witnessed and compared these two examples, formed of our system of criminal jurisprudence?

In this uncertain administration of justice, not only different judges act upon different principles, but the same judge, under the same circumstances, acts differently at different times. It has been observed, that in the exercise of this judicial discretion, judges, soon after their promotion, are generally inclined to great lenity; and that their practical principles alter, or, as it is commonly expressed, they become more severe as they become more habituated to investigate the details of human misery and human depravity.

Let us only reflect how all these fluctuations of opinion and variations in practice must operate upon that portion of mankind, who are rendered obedient to the law only by the terror of punishment. After giving full weight to all the chances of complete impunity which they can suggest to their minds, they have besides to calculate upon the probabilities which there are, after conviction, of their escaping a

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severe punishment; to speculate upon what judge will go the circuit, and upon the prospect of its being one of those who have been recently elevated to the bench. As it has been truly observed, that most men are apt to confide in their supposed good fortune, and to miscalculate as to the number of prizes which there are in the lottery of life, so are those dissolute and thoughtless men, whose evil dispositions penal laws are most necessary to repress, much too prone to deceive themselves in their speculations upon what I am afraid they accustom themselves to consider as the lottery of justice.

Let it at the same time be remembered, that it is universally agreed, that the certainty of punishment is much more efficacious than any severity of example for the prevention of crimes. Indeed this is so evident, that if it were possible that punishment, as the consequence of guilt, could be reduced to an absolute certainty, a very slight penalty would be sufficient to prevent almost every species of crime, except those which arise from sudden gusts of ungovernable passion. If the restoration of the property stolen, and only a few weeks, or even a few days. imprisonment, were the unavoidable conse