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 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 remitting this severity remains any where, the execution of the laws will become more sanguinary than the public compassion would endure, or than is necessary to the general security. "The law of England is constructed upon a different and a better policy. By the number of statutes creating capital offences, it sweeps into the net every crime, which under any possible circumstances may merit the punishment of death: but when the execution of this sentence comes to be deliberated upon, a small proportion of each class are singled out, the general character, or the particular aggravations of whose crimes, render them fit examples of public justice. By this expedient few actually suffer death, whilst the dread and danger of it hang over the crimes of many. The tenderness of the law cannot be taken advantage of. The life of the subject is spared, as far as the necessity of restraint and intimidation permits, yet no one will adventure upon the coinmission of any enormous crime from a knowledge that the laws have not provided for its punishment. The wisdom and humanity of this design furnish a just excuse for the multiplicity of capital offences, which the laws of England are accused of creating beyond those of other countries. The charge of cruelty is answered by observing, that these laws were never meant to be carried into indiscriminate execution; that the legislature, when it establishes its last and highest sanctions, trusts to the benignity of the crown to relax their severity as often as circumstances appear to palliate the offence, or even as often as those circumstances of aggravation are wanting, which rendered this rigorous interposition necessary. Upon this plan it is enough to vindicate the lenity of the laws, that some instances are to be found in each class of capital crimes, which require the restraint of capital punishment; and that this restraint could not be applied without subjecting the whole class to the same condemnation. "There is, however, one species of crimes, the making of |