In the year 1731-2, which was only thirty-two years after the act of King William, and only sixteen after the act of Queen Ann, a period during which there had scarcely been any sensible diminution in the value of money, it appears from the sessions papers that, of thirty-three persons indicted at the Old Bailey for stealing privately in shops, warehouses, or stables, goods to the value of five shillings and upwards, only one was convicted, twelve were acquitted, and twenty were found guilty of the theft, but the things stolen were found to be worth less than five shillings. Of fifty-two persons tried in the same year at the Old Bailey, for stealing in dwelling-houses, money, or other property, of the value of forty shillings, only six were convicted, twenty-three were acquitted, and twenty-three were convicted of the larceny, but saved from a capital punishment by the jury stating the stolen property to be of less value than forty shillings. In the following years the numbers do not differ very materially from those in the year 1731.

Some of the cases which occurred about this time are of such a kind, that it is difficult to imagine by what casuistry the jury could have been reconciled to their verdict. It may be proper to mention a few of them.-Elizabeth Hobbs was tried in September 1732, for stealing in a dwelling-house one broad piece, two guineas, two half-guineas, and forty-four shillings, in money. She confessed the fact, and the jury found her guilty, but found that the money stolen was worth only thirty-nine shillings. Mary Bradley, in May 1732, was indicted for stealing in a dwelling-house, lace which she had offered to sell for twelve guineas, and for which she had refused to take eight guineas; the jury, however, who found her guilty, found the lace to be worth no more than thirty-nine shillings. Wm. Sherrington, in Oct. 1732, was indicted for stealing privately in a shop, goods which he had actually sold for 11. 5s. and the jury found that they were worth only 4s. 10d.

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.

66

Com. vol. iv. p. 239.

F

In the year 1731-2, which was only thirty-two years after the act of King William, and only sixteen after the act of Queen Ann, a period during which there had scarcely been any sensible diminution in the value of money, it appears from the sessions papers that, of thirty-three persons indicted at the Old Bailey for stealing privately in shops, warehouses, or stables, goods to the value of five shillings and upwards, only one was convicted, twelve were acquitted, and twenty were found guilty of the theft, but the things stolen were found to be worth less than five shillings. Of fifty-two persons tried in the same year at the Old Bailey, for stealing in dwelling-houses, money, or other property, of the value of forty shillings, only six were convicted, twenty-three were acquitted, and twenty-three were convicted of the larceny, but saved from a capital punishment by the jury stating the stolen property to be of less value than forty shillings. In the following years the numbers do not differ very materially from those in the year 1731.

Some of the cases which occurred about this time are of such a kind, that it is difficult to imagine by what casuistry the jury could have been reconciled to their verdict. It may be proper to mention a few of them.-Elizabeth Hobbs was tried in September 1732, for stealing in a dwelling-house one broad piece, two guineas, two half-guineas, and forty-four shillings, in money. She confessed the fact, and the jury found her guilty, but found that the money stolen was worth only thirty-nine shillings. Mary Bradley, in May 1732, was indicted for stealing in a dwelling-house, lace which she had offered to sell for twelve guineas, and for which she had refused to take eight guineas; the jury, however, who found her guilty, found the lace to be worth no more than thirty-nine shillings. Wm. Sherrington, in Oct. 1732, was indicted for stealing privately in a shop, goods which he had actually sold for 11. 5s. and the jury found that they were worth only 4s. 10d.

In the case of Michael Allom, indicted in February 1733, for privately stealing in a shop forty-three dozen pairs of stockings, value 31. 10s. It was proved that the prisoner had sold them for a guinea and a half, to a witness who was produced on the trial, and yet the jury found him guilty of stealing what was only of the value of 4s. 10d. In another case, that of Geo. Dawson and Joseph Hitch, also indicted in February 1733, it appeared that the two prisoners, in company together at the same time, stole the same goods privately in a shop, and the jury found one guilty to the amount of 4s. 10d. and the other to the amount of 5s. that is, that the same goods were at one and the same moment of different values. This monstrous proceeding is accounted for by finding that Dawson, who was capitally convicted, had been tried before at the same sessions for a similar offence, and had been convicted of stealing to the amount only of 4s. 10d. The jury seem to have thought, that having had the benefit of their indulgence once, he was not entitled to it a second time, or in other words, that having once had a pardon at their hands, he had no further claims upon their mercy.

NOTE B. P. 29.

THE whole of the passage in Paley, here commented on, is in the following words:

"There are two methods of administering penal justice.

"The first method assigns capital punishments to few offences, and inflicts it invariably.

"The second method assigns capital punishments to many kinds of offences, but inflicts it only upon a few examples of each kind.

"The latter of which two methods has been long adopted in this country, where, of those who receive sentence of death, scarcely one in ten is executed. And the preference of this to the former method seems to be founded in the consideration, that the selection of proper objects for capital punishment, principally depends upon circumstances, which, however easy to perceive in each particular case after the crime is committed, it is impossible to enumerate or define before-hand; or to ascertain, however, with that exactness which is requisite in legal descriptions. Hence, although it be necessary to fix, by precise rules of law, the boundary on one side, that is, the limit to which the punishment may be extended, and also that nothing less than the authority of the whole legislature be suffered to determine that boundary, and assign these rules; yet the mitigation of punishment, the exercise of lenity, may, without danger, be intrusted to the executive magistrate, whose discretion will operate upon those numerous unforeseen, mutable, and indefinite circumstances, both of the crime and the criminal, which constitute or qualify the malignity of each offence. Without the power of relaxation lodged in a living authority, either some offenders would escape capital punishment, whom the public safety required to suffer; or some would undergo this punishment, where it was neither deserved nor necessary. For if judgment of death were reserved for one or two species of crimes only, which would probably be the case, if that judgment was intended to be executed without exception, crimes might occur of the most dangerous example, and accompanied with circumstances of heinous aggravation which did not fall within any description of offences that the laws had made capital, and which consequently could not receive the punishment their own malignity and the public safety required. What is worse, it would be known before-hand, that such crimes might be committed without danger to the offender's life. On the other hand, if, to reach these possible cases, the whole class of offences to which they belong be subjected to pains of death, and no power of