with some kind of system and order; the criminal courts that are charged with the execution of the three extreme penal statutes we are considering, have at this day neither compass nor meridian to steer by, but are tossed between a rigid law and a lax practice, and all the chasm between, filled up with varieties of anomalous judgments, mitigations, equitable abuses, and cross examples; the theory and principle of which are no where recorded, having vanished with the circuit, or the judge who acted upon them. Where the king's highway ends, and nothing is left but to strike out upon the common, we know what a choice of tracks are always to be seen, to perplex the traveller who has his way to seek; and people are agreed that a few finger posts would be a clear improvement. A new judge in a criminal court, who has to administer the acts of 10 and 11 William III. and 12 Ame, is placed in the same situation; and the reasons are not very obvious, why the legislature should decline to take a survey of the open country he has to travel, leaving him wholly to rely on his own sense.

And so much for the considerations that prevail with us for the expediency of repealing these statutes, and declaring the law a-new more explicitly, as far as they are concerned.

But as the author has taken something of a wider range in his remarks, which were only preliminary to the debate upon the direct question, we ought, perhaps, to extend our line a little farther, to notice some of his general or collateral topics.

If in an argument, which has raised the opinion we had entertained before of the author's energy and sagacity of mind, there be any thing we could wish to see altered, it is an occasional symptom of more favour than we think is due to a plausible theory which professes to punish, according to the moral guilt of the offence. Law and ethics, friendly as they are to each other, cannot, we apprehend, be brought into so strict a union. Although the laws are in the mass, a promulgation of moral duty, and to some men the only code of duty; yet after all, they are apt to be very indifferent moralists, because while they teach men to abstain from rapine, theft and violence, their chief design, at least in all great and populous states it must be so, is to preserve the peace and civil welfare of the community, and to take care of the rights of those who may suffer injury, more than the conscience of those who may do it. Here is a wide difference then in the object of law and morals.

Again, the depravity of some crimes is on a par with the inconvenience of them. They pour forth all their poison on the world, and are immoralities and nuisances, at once, in the same degree. But in others there is no common measure between the public de

triment

triment of the action, and the demerit of the doer of it: and in this respect the private and the political ethics will vary.

Nay, harsh as it may sound, the artificial law of society, and the natural law, are sometimes obliged to judge of the same actions on principles directly opposite, and with the best reason for it. What is there that can extenuate a crime more in the eye of nature, than if it be done under a strong and general temptation; and if it be easy to commit, and hard to be discovered? Yet these are the very circumstances which, in the abstract view of the penal law, become aggravations. It undertakes to check something that is amiss: temptations, inducements and facilities only irritate it, therefore, to more rigorous coercion. It has to deal with a numerous host of petty enormities which could never be pursued in the detail one by one; but since upon the whole they make a serious invasion on the public, it is obliged to arm itself with the greater terrors, to keep them down by the compendious policy of severe example: a policy which is just, because it is necessary, and does. the thing intended with the least expense of human suffering.

Sir S. Romilly has drawn a contrast between the unequal measures of guilt and punishment in the case of a guardian who steals the property of his ward, and a shop-lifter who takes a few yards of lace or ribbon, and nothing can be more defective than our law, if these crimes ought to be punished according to their comparative deserts.

The violation of a guardian's trust is certainly a crime of such a kind as infinitely to surpass the every-day matter of the annals of larceny. But if it should be thought proper to make a new adjustment of the laws between these two offences, still we could by no means consent to make the moral scale the rule of punishment for them. Without refining too much, these objections to it seem valid. Breach of trust in a guardian is not likely to be common. He is a selected person; and the selection almost ensures the trust. If the opportunity to offend be great, so is the chance of detection; and flagrant, unpitied shame, the consequence. These are checks to every one; but most powerful in a rank of life, where character is the great stake: by the spontaneous action of these causes, the villany is fettered; and when it breaks out, punished too; so that what remains to be done by positive law is so much the less.

It would not then be a preposterous lenity in the law, but a wise. and equitable temperament of its power towards the several interests it has in charge, to vary its penalties according to some closer construction of what it ought to do, than can be drawn from an estimate either of the pecuniary amount, or the intrinsic turpitude of the theft. Penal sanctions are only auxiliary to the other restraints by which men are- governed: and we must forget, that such re

straints

straints are in being, before we can proceed to pair crimes and penalties together by any scheme of mathematical ratio.

The primary social restraints which exist independently of law, and contain in them the best spirit of society, will always deserve to have the appeal first made to them, wherever they can be supposed to act with any force at all; and to have their paramount value acknowledged on the face of the statute book; first, by its declining to take the cause out of their cognizance; or next, by shewing itself unwilling to stigmatize the failure of their authority, by tendering in their place the grosser and more shocking kinds of punishment. And as laws, when they are once made, ought to be executed with unrelenting impartiality between man and man, it seems the more necessary to provide in making them, not to tarnish the better orders and motives of society. On this account, however we may detest the guardian who defrauds his ward, or the governor who plunders a province, we should be sorry to see them tried under a statute of larceny; or read their names among the convicts sentenced to hard labour on board the hulks, or in a penitentiary house.

But we have been opposing an idea of criminal law concerning which we are not certain whether it be really adopted by the author, or only employed by him as an argumentum ad hominem, in a turn of his controversy with Dr. Paley, whose whole doctrine on crimes and punishments he has endeavoured to refute.

It may be officious, and not perfectly safe for us to step in between two such disputants, and try to make their differences appear not quite so great as one of them might lead us to imagine, by the very exact and elaborate refutation of his opponent, which he has attempted and yet only to hint a belief of this kind would be less respectful than to state the grounds of it: which we shall therefore do, as briefly as we can.

Dr. Paley is the advocate of a system which assigns capital punishments to many kinds of offences, but inflicts it only upon a few examples of each kind.' In this view he includes the great body of our capital statutes collectively; many of which, or rather most of them were, at the time when he wrote, and still continue to be executed, frequently enough to make the dread of the law very sensibly felt. This is true, not only of crimes the most atrocious, as murders, rapes, burning of houses, and forgeries; but also of sheepstealing, horsestealing, burglaries, and highway robberies, which are punished with death in a number of instances sufficient for an operative example. What is the kind of proportion, we can learn only by a rude estimate, of which the elements are, that

Moral Philosophy, book vi. c. 9.

out

out of 528 persons capitally convicted for crimes of every description, about an eighth suffered the sentence; but since there are included in this account the convictions for larceny, which probably made up half of the whole, whereas only one execution for larceny took place; it follows that the grants of mercy for other crimes must have been in a much lower proportion than that general average would indicate, and perhaps did not exceed three cases out of four. The whole balance of the calculation is deranged by the single article of the larcenies being included; on one side they double the convictions, while on the fatal side of the account there is only a unit to be added for them.

Now had the question been put to Dr. Paley, whether he would defend a statute which creates a capital theft, with the condition of the sentence being almost universally remitted; it is clear from the whole tenour of his principles that he would have given his voice for the repeal of that mockery of legal terror. In his system there was some moderate proportion between the frequency of executing, and remitting the law. The fact as he took it and has expressed it, supposes the ratio to be one to ten: which, notwithstanding the confidence of adventurers in crime, will not make such a tempting' lottery,' as every one must allow is now open for speculators upon the property of shops and dwelling-houses. Dr. Paley's work was written about thirty years ago, when the sentence of the law was much more steadily inflicted, even upon the ·larcenies in question, than it is at the present day; and by referring to his expressions, which are of this sort,- 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 purposes of restraint and intimidation permit;'-we may be satisfied he never meant that crimes which are committed every day, should be intimidated by a threat to be put in force once in six or seven years. In short, he defends sanguinary statutes, as useful, according to a certain standard of mixed severity and relaxation which he had in his mind when he wrote; that standard cannot be pretended to exist in the present argument--the conclusion is undeniable, that his authority is so far from being opposed to the immediate motion which Sir S. Romilly was about to make in parliament, that it might fairly have been quoted in favour of it.

But on the extent of discretionary power, in general, which ought to be reserved to a criminal court, these two authors differ beyond all hope of reconciliation. Dr. Paley had no conception of a dispensing power which was to contravene a statute: but he has taken the side of latitude; as Sir S. Romilly does of strictness.

The

The one would make the judge the intuitive arbitrator of the law. The other would make the legislature the virtual judge; or to use his own forcible language, the law should be the rule; the relaxation of it, the exception. Upon the abstract question we feel little doubt in embracing it as a safer principle to narrow rather than to enlarge the commission of a judge, and to frame the laws in such a way that they may be, not with literal, but substantial exactness, a known, steady and immutable rule. A loose administration of law contradicts the first notions we have of justice, which no man ever thought of but as something uniform and fixed. Take this character from the law, and however it may inspire dread, it certainly will not command respect.

At the same time, for every purpose of practical improvement, we should think it the best policy to put the question, both as to discretionary power, and every other arrangement, on each measure, step by step: otherwise the best general principles may only mislead us, as none stumble oftener than those who are constantly looking at the stars.

It was no longer ago than the year 1808 that the offence of taking privately from the person above the value of twelvepence was punishable with death. So it was before the conquest; only there was a ransom, and he who could pay it saved his life. But in the time of Henry I. it was made strictly capital, and in the reign of Elizabeth debarred the benefit of clergy; and then neither ransom nor learning would do. During many a reign, and after the value of that sum was shrunk to nothing, we continued in love with the old Saxon denomination, and men were executed according to those antediluvian comparisons of life against money, or saved by the sovereign mercy of the court. *Sir Henry Spelman had justly complained, that while every thing else was risen in its nominal value, and become dearer, the life of mau had continually grown cheaper. Still we adhered to the constitutions of Athelstan, till Sir S. Romilly had the courage to make a stand against him, and obtained a repeal of his life-appraisement. But it must be observed also, to the honour of Dr. Paley, that he has written most forcibly in behalf of the same reform. He has the merit of having laid his finger upon the very law at which Sir S. Romilly began his work of improvement; and as we have had to remark upon the opinions in which these two distinguished persons differ, our readers may not be sorry to know that there are also some points of agreement between them.

The question on the necessity of capital punishment in general is by no means involved in the legislative measure which this pam

* Blackstone, book iv. 17.

phlet