quence of theft, no theft would ever be com mitted. No man would steal what he was sure that he could not keep; no man would, by a voluntary act, deprive himself of his li berty, though but for a few days. It is the desire of a supposed good which is the incentive to every crime: no crime, therefore, could exist, if it were infallibly certain that not good, but evil must follow, as an unavoidable consequence to the person who committed it. This absolute certainty, however, is unattainable, where facts are to be ascertained by human testimony, and questions, are to be decided by human judgments. All that can be done is, by a vigilant police, by rational rules of evidence, by clear laws, and by punishments proportioned to the guilt of the offender, to approach as nearly to that certainty as human imperfection will admit.

There is another point of view in which this matter may be considered; and which will make it evident that it would be more expedient that the judges should have the power vested in them by law, of appointing the punishment of every offence after it had been established with all its circumstances in proof, and of proportion

ing the particular nature and degree of the pu nishment to those circumstances, than that, for such offences as I am speaking of, so severe a punishment should be fixed by law, with a power left in the judges according to circumstances, to relax it. In the former case it is highly probable that the discretion would in practice be exercised by none but the judges, that is, by magistrates accustomed to judicial investigations, fully aware of the importance of the duties which they are called on to discharge, and who from the eminence of their stations, are, and cannot but be sensible, that they are under a very great degree of responsibility to the public. According to the practice which now prevails, this most important discretion is constantly assumed by persons to whom the constitution has not intrusted it, and to whom it certainly cannot with the same safety be intrusted; by prosecutors, by juries, and by witnesses. Though for those thefts which are made capital by law, death is seldom in practice inflicted; yet as it is the legal appointed punishment, prosecutors, witnesses, and juries, consider death as that which, if it will not with certainty, yet possibly may be the consequence, of the several parts which they have to

act in the judicial proceeding; and they act their parts accordingly, though they never can, in this indirect way, take upon themselves to prevent the execution of the law, without abandoning their duty; and in the case of jurymen and witnesses, without a violation of their oaths.*

There is still another view which may be taken of this subject, and which is perhaps more important than those which have been already considered. The sole object of human punishments, it is admitted, is the prevention of crimes; and to this end, they operate principally by the terror of example. In the present system, however, the benefit of example is entirely lost, for the real cause of the convict's execution is not declared in his sentence, nor is it in any other mode published to the world. A man is publickly put to death. All that is told to the spectators of this tragedy, and to that part of the public who hear or who read of it, is, that he stole, a sheep, or five shillings worth of goods privately in a shop, or that he pilfered to the value of forty shillings from his employer in a dwellinghouse, and they are left in total ignorance that

*Note A.

the criminal produced upon his trial perjured witnesses to prove an alibi, or some other defence, and that it is for that aggravation of his crime that he suffers death. The example cannot operate to prevent subornation of witnesses to establish a false defence, for it is not known to any but those who were present at the trial, that such was the offender's crime; neither can it operate to prevent sheep-stealing, or privately stealing in a shop, or larceny in a dwelling-house, because it is notorious that these are offences for which, if attended with no aggravating circumstances, death is not in practice inflicted. Nothing more is learned from the execution of the sentence, than that a man has lost his life because he has done that which by a law not generally executed, is made capital, and because some unknown circumstance or other existed either in the crime itself, or in the past life of the criminal, which in the opinion of the judge who tried him, rendered him a fit subject to be singled out for punishment. Surely if this system is to be persevered in, the judge should be required in a formal sentence to declare why death is inflicted, that the sufferings and the privations of the individual might be rendered useful to society in deterring others

from acting as he has done, and drawing on themselves a similar doom. The judge would undoubtedly be required to do this if the discretion which he exercises in point of fact, were expressly confided to him by law. But unfortunately, as the law stands, he is supposed not to select for capital punishment, but to determine to whom mercy shall be extended; although these objects of mercy, as compared with those who suffer, are in the proportion of six to one. Were recorded reasons to be required of the judge, it will be said, they must be his reasons for extending mercy, which is his act, not his reasons for inflicting punishment, which is the act of the law: an additional proof of the mischief which results from leaving the theory and the practice of the law so much at vari

ance.

In truth, where the law which is executed is different from that which is to be found in the written statutes, great care should be taken to make the law which is executed known, because it is that law alone which can operate to the prevention of crimes. An unexecuted law can no more have that effect, than the law of a foreign country; and the only mode that can be