shillings; and also that juries, under the same influence of tenderness towards that sacred deposit of life, have been led to make up their verdict by some other rule of judgment than that which their oath prescribes; and, finally, that when these several arbitrary corrections have been applied to the law, and rescued many from its grasp, the hand of justice is stayed towards others, after sentence passed, and when it is in the very act to strike, by the intercession, or the immediate mercy of the bench; so that the whole train of the judicial proceeding might be taken for an arrangement to protect the culprit, and to save him, if not from all punishment, certainly from that which the legislature has appointed.

Now, supposing that the ultimate distribution of penal justice by a mode so extraordinary is as good to the full for the present moment, as it would be by an amended system, explicitly laid down in law, which, however, is too much to be conceded, still the mode seems fraught with irregularities and inconveniences which it might be expedient to correct. The tone of lenient and equitable dealing, which has made its way into our courts, would be a more secure and legitimate benefit if it were invested with the force of the legislative sanction. We have it and have it not. It is only an equivocal possession. Being a practice, why should it not be a law? It is a wholesome irregularity; why not adopt it into the public code ? As the matter now is, courts of justice, most contrary to their true functions, become the legislative body: for such they are when the law is to be modified by them in the application of it to the particular case, according to measures and principles which are no where to be found but in their own occasional and recent practice. Most thankfully do we acknowledge that English courts are now guided by an enlightened feeling of what is upright and just. But what security is there for the permanence of this spirit ? or for its steady and uniform tenour of operation, while it continues ? The Auctuations that may, nay, must ensue, from differences of character in the judge or jury; from his particular course of legal observation, or his construction of what the public good requires; seem far to exceed those useful or passable inequalities which come within the meaning of a reasonable discretion. An ex post facto law is universally held to be a grievance; but are there not many of the objectionable ingredients of such a law contained in a practice which leaves it in the breast of jurors or judges to decide by what name the offence shall be described, and to vary the sentence from a short imprisonment to the loss of life? In this latitude of power the joint interpretation of the several members of the court does, to all intents and purposes, make the law, for the immediate case; an interpretation which is quite a precarious

and modern thing, guarded by no positive rules of statute, precedent, or any other authentic and systematic direction.

It is a truth we all believe, that known and written laws are the only safeguard of liberty, justice, and public order. It is another, as little to be denied, that no provisional wisdom can draw out a plan of statutes so complete in the enumeration of the lower genera and species of crime as to present a definite idea of the guilt and measure of punishment that shall tally exactly with the real case, and reduce the whole affair of justice to a technical reference to the statute-book. A legislative Linnæus is out of the question. The operose detail could never be carried far enough for the end in view, though it might soon be done to an extent which would cramp the interests of justice, and might lower that high sense of duty and the superior intelligence which are now seen upon the bench, so greatly to the public benefit.

Both of these maxims being equally true, and, perhaps, equally important, it remains to harmonize them, and make them act together. How far each should be studied is difficult to define in words, and is best determined by the occasion. But we hope that no statesman will content himself with standing exclusively on either of them alone, or contend so much for the ascendency of the one as virtually to set the other aside. On the judicious accommodation of conflicting principles, and a mixed feeling for different ends, depends almost every thing practically useful in matters of government and legislation. Society exists by the union of restraint and freedom; and there must be more or less of these two qualities in every subordinate function in it. But those who plead for the expedience of bringing the administration of the penal law more precisely under the dominion of known restrictions, can hardly be thought to encroach too far on the freedom of courts, when they except from it the general commutation of life and death, and would take from them the power of pronouncing a sentence which, of their own accord, they forbear to execute above once in three or four hundred times. Nor is it a reform that threatens to encumher the statute law very grievously, when they would select some of the chief and palpable differences which common sense might point out, in the enormity of the same general offence, and make those differences the subject of a distinct enactment. In doing which they would willingly avail themselves of every light and assistance that can be had from a review of what has been the practice.

But it is urged that the threat of death is of use, under all the infrequency of it; that men fear what may be inflicted be it ever su seldom. We may well hesitate to admit this; for, considering


the perverse and infatuated calculations which the folly of a dishonest mind is known to indulge, and the remoteness of the chance upon any calculation, as far as these statutes are concerned, we may doubt whether a single crime have been checked by the odd example or two which may have been made in the memory of the present house-plundering and shoplifting practice. In the debate between villany and prudence, such solitary examples pass perhaps for little or nothing ---if they are even remembered at all; and yet the efficacy of them has been rated so highly, that the great stress of the legislative question has been laid upon them. But if we take into account the greater promptitude there would be to pursue the offence, when the capital threat was completely done away, we may rest satisfied, that nothing would be lost to the laws on the score of useful fear. A person high in station, and whose opinions on the whole of this subject deserve the greatest deference, has observed, indeed, that in the experience of criminal

no unwillingness can be seen in prosecutors to do their utmost against the criminal. It is very material, however, to remark, that if this observation be correct still it can be made only on those who stir a prosecution and bring it into court. The many who accept their loss, and do not choose to punish themselves by becoming prosecutors, are not seen in that place.

But-there is danger in every change. The salutary mistrust of innovation is a feeling we do not wish to see impaired. Let every change that is proposed bring with it the strongest credentials; let it be shewn to be not only good in the design, but safe by its agreement with what we already enjoy. It may be good in the abstract; but not for us : we may have prejudices or interests of another kind, which may be shocked by the intrusion of the benefit. But what is there in all this caution which is not fully secured in the amendment before us? That amendment goes to establish, by the legislature, what is already adopted by a precarious practice. The previous dispositions of men and things, which are wanted for the sober conduct of every improvement, are here all in being already; in the very same persons and functions that are to be the medium of the change. And although it may appear to some a matter of little moment whether we hold a benefit by a law, or a custom against a law; by a sufferance, or a sanction; we are not ashamed of preferring the direct and unequivocal assurance of the public faith in a declaratory law as the best basis for a beneficial practice.

If, for nothing else, to preserve the sanctity of an oath, it appears

desirable that the law should be altered. Are we safe when jurors, who are to bear a part in doing justice, are laid under a temptation to violate and elude the strongest pledge of it? If, in the zeal of their humanity, they have returned verdicts, as they often



have, which it is not easy to reconcile with their oath, we must point to the law for corrupting its own spring. This is done, indeed, for the sake of mercy; and the casuistry of the virtues is not so bad as perjury that is wilful or corrupt. But the wiser method would be, to relieve them, as far as may be, from the occasion of chicaning between their duties, and lay the way of mercy more open to them, since they will break the fences to get at it.

Some remarkable evidence of this evilis given by Sir S. Romilly in a note subjoined to his pamphlet, from which we shall make an extract or two.

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 thirtythree 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

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. William Sherrington, in October 1732, was indicted for stealing privately in a shop, goods which he had actually sold for 1l. 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 George 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


do not

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:'pp. 66, 67.

It is satisfactory to think we are reciting here the verdicts of a former time. As the Bench, then, was little in the habit of applying for, or exercising the prerogative of mercy, the jury must have felt that it rested almost entirely with them to decide upon the prisoner's fate. The general lenity of the judge has now superseded a good deal of their extra-official service. But there is reason to believe they are still ready in many cases of lighter guilt, to save the criminal by a forced mitigation of their verdict, rather than make over the whole of the act of grace to another quarter. In the little that we have seen ourselves, such appears to have been their leaning. The fact is probable in itself. And many who speak from larger and legal experience affirm it. To recal juries therefore to their precise duty, we should be glad to see one inducement to swerve from it taken

away. By whatever cause the jurisprudence of the country is turned afloat, the discredit and evil consequence of it are apparent; but they are the worst when the supreme officer of justice bears himself an unsteady hand. Yet it has occurred that criminals have been tried for one and the same offence in which they were equally concerned, and went hand in hand, but being tried by different judges have learnt that equal guilt is by no means sure of receiving equal punishment. A case in illustration of this is given (Observ. p. 18.) with the names of the judges and the circuit; so strong a case indeed that we shall not quote it in words: but the result was, that without a shade of difference in the act, or the character, of the two criminals, one was sentenced to a few months imprisonment, the other, who came before a different judge at the next assizes, was transported. Choosing rather to draw a veil over the particular

case, as it is a recent one, we take the right of alluding to it so far · as to urge, that since no rectitude or purity of intention in the

wisest men will guide them to think and decide alike, the legislature is bound to come forward in aid of their duties, and grant them the benefit of instructions to act by. While the other courts have a fixed usage, a doctrine, or a body of precedents to enable them to interpret what the law says, or supply what it does not say, 14


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