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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 evil is 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 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. William Sherrington, in October 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. 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
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 Beuch, 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, 1 4 with
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 Amme, 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 inconve nience 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 detriment
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 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.