nefit of clergy was taken away from the crime of privately stealing, in a shop, goods of the value of five shillings, that offence was already punishable capitally on all but those who could read. The statute had no other effect, therefore, than to place men, whose crime was aggravated by the education which they had received, upon a level with those who had to urge, in extenuation of their guilt, the deplorable ignorance in which they had been left by their parents and by the state.

The same observation cannot, indeed, be made on the Act of the 12th Anne, which relates to stealing money or goods in a dwellinghouse: but when it passed, only seven years had elapsed since the adoption of the law, which extended the benefit of clergy to the illiterate, as well as to those who could read: and men who had been accustomed to see ignorant persons convicted capitally, for stealing what was of the value only of thirteen-pence, in any place, or under any circumstances, could not have thought it an act of great severity, to appoint death as a punishment for stealing in a dwelling-house property of the value of forty shillings.

It is sufficient, however, to say of those laws, that they are not, and that it is impossible that they should, be executed; and that instead of preventing, they have multiplied crimes, the very crimes they were intended to repress, and others no less alarming to society, perjury, and the obstructing the administration of justice.

But although these laws are not executed, and may be said, therefore, to exist only in theory, they are attended with many most serious practical consequences. Amongst these, it is not the least important, that they form a kind of standard of cruelty, to justify every harsh and excessive exercise of authority. Upon all such occasions these unexecuted laws are appealed to as if they were in daily execution. Complain of the very severe punishments which prevail in the army and the navy, and you are told that the offences, which are so chastised, would by the municipal law be punished with death. When not long since a governor of one of the West India islands was accused of having ordered that a young woman should be tortured, his counsel said in his defence, that the

woman had been guilty of a theft, and that by the laws of this country her life would have been forfeited. When, in the framing new laws, it is proposed to appoint for a very slight transgression a very severe punishment, the argument always urged in support of it is, that actions, not much more criminal, are by the already existing law punished with death. So in the exercise of that large discretion which is left to the judges, the state of the law affords a justification for severities, which could not otherwise be justified. When for an offence, which is very low in the scale of moral turpitude, the punishment of transportation for life is inflicted, a man who only compared the crime with the punishment, would be struck with its extraordinary severity; but he finds, upon inquiry, that all that mass of human suffering which is comprised in the sentence, passes by the names of tenderness and mercy, because death is affixed to the crime by a law scarcely ever executed, and, as some persons imagine, never intended to be executed.

For the honour of our national characterfor the prevention of crimes--for the mainte

nance of that respect which is due to the laws, and to the administration of justice-and for the sake of preserving the sanctity of oathsit is highly expedient that these statutes should be repealed.

NOTES.

NOTE A. P. 23.

THE latitude which juries allow themselves in estimating the value of property stolen, with a view to the punishment which is to be the consequence of their verdict, is an evil of very great magnitude. Nothing can be more pernicious, than that jurymen should think lightly of the important duties they are called upon to discharge, or should acquire a habit of trifling with the solemn oaths they take. And yet ever since the passing of the acts which punish with death the stealing in shops or houses, or on board ships, property of the different values which are there mentioned, juries have, from motives of humanity, been in the habit of frequently finding by their verdicts, that the things stolen were worth much less than was clearly proved to be their value. It is held, indeed, by some of the judges (whether by all of them, and upon all occasions, I am not certain) that juries in favour of life may fairly, in fixing the value of the property, take into their consideration the depreciation of money which has taken place since the statutes passed, or in the words of Mr. Justice Blackstone," may reduce the present nominal value of

money to its ancient standard." To shew, therefore, to what an extent juries have assumed to themselves a power of dispensing with the law in this respect, it will be proper to refer to the earliest trials, for these offences, that I happen to have met with.

* Com. vol. iv. p. 239.