upon the minds of persons called to discharge the duty of prosecution; they will apply to all cases of prosecution, but they will apply with a hundred-fold force and effect where the punishment is capital. As long as human nature continues what it now is, so long will men be found unwilling to act, when it falls to their own turn, upon such a theory as the general efficacy of Capital Punishment. Nor let us regret that such is the constitution of our nature. The Being who ordained it so, it may be presumed, had a regard to the correspondency and suitableness of one part to another. Lamentable, indeed, would it be, if, with our erring judgment and imperfect views, we were so framed as to resist the direct and strong impulses of our feelings, from a vain and delusive confidence in the results of our puny and fallacious reasonings. Let us remember the monition of Burke: "We must make use of a cautious, I had almost said a timorous, method of proceeding. We must not attempt to fly, when we can scarcely pretend to creep. In considering any complex matter, we ought to examine every distinct ingredient in the composition, one by one, and reduce every thing to the utmost simplicity, since the condition of our nature binds us to a strict law and very narrow limits. We ought afterwards to re-examine the principles by the effect of the composition, as well as the composition by that of the principles."

Having said so much of what is, in our mind, the rationale of the matter, let us see how far it corresponds with what we know of the facts. The correctness of our view seems to derive considerable confirmation from the evidence of Mr. Smith, the banker, for which see Report of the Committee on Criminal Law. He states that a number of bankers associated for the purpose of prosecuting forgers, but yet that many instances occurred where individuals of the association failed to act up to their resolutions. In this fact may be distinctly observed the phenomena which correspond with our theory. We need not make further remark upon them, nor do more than refer to the evidence given before the Committee, for further statements corroborating our argument.

We rather turn to some reasoning of Mr. Millar's,

founded upon data from which we propose to draw a very different inference. He says, that the strongest confirmation of the relation between restriction of capital punishment and increase of crime, is afforded by returns, from which it appears, that since the year 1749, the number of capital convictions has increased most prodigiously, and that at the same time the number of executions has very considerably diminished. The latter circumstance, Mr. Millar would argue, has produced the former; insisting, that though the enactments of the law have not been inaterially altered, the practice has become much more lenient. These Returns are given in the Appendix to the Report of the Criminal Law Committee. From them it appears, that on an average of six years, from 1750 to 1755, both inclusive, the convictions were to the executions in London and Middlesex as ten to seven nearly; whereas, on an average of the same number of years, beginning with 1813 and ending with 1818, both inclusive, the convictions were to the executions as nine to one nearly. Again, the total number of capital convictions throughout England and Wales, in the year 1805, was 350, and the executions were 68; whereas, in the year 1818, the convictions were 1254, and the executions 97: thus, in the year 1805, one out of every five culprits convicted was executed; but in the year 1818, one out of every thirteen only. The plain and striking deduction to be made is, that the temper of the times has proved so decidedly repugnant to the sanguinary spirit of the existing enactments, that it has been deemed injudicious to carry them into effect.

The practical mitigation of the Criminal Code, which has taken place through the dispensing power vested in the Crown, may be more properly regarded as a consequence of the vast increase of crime in these countries, than as its cause. And a more satisfactory and decisive criterion of the unwillingness to inflict death, which we contend to operate so widely, cannot be, than the extension of the Royal Prerogative to its present limits. Whatever may be said of the weakness of the minds of individuals, called upon by their obligations to society to bring offenders to the doom assigned by the laws of their country, it will

not, surely, be maintained, that the officers of the Home Department are likely to fail in their duties, from the influence of any infirmity on the side of humanity. The alteration of the punishment for robbing bleach-yards, effected by the 51st of the late King, was attended with consequences almost demonstrative of the impolicy of Capital Punishment. Prior to the act referred to, the offence was capital; it has since been punished by transportation. Immediately on the change, the number of prosecutions increased to a great extent, which circumstance, it is universally admitted, arose from that change, and not from an increase in crime. On this point see the valuable evidence of the late Sir W. D. Evans, in the Report so often cited.

No reason has been assigned why a mitigation of punishment should have different effects, with regard to other offences, from those it had upon bleach-green robbery: yet the fact has been dismissed, with the simple observation, that the argument is entitled to whatever weight may be deemed to belong to it. Nothing can be more inconclusive than such a mode of reasoning.

Upon the subject of the vast increase of crime, we have nothing to offer. We are not aware that any plausible explanation of the fact has been given, and we are unable to specify the causes. We have, however, no difficulty in rebutting the inference which has been drawn from the proportionate decrease of executions. We agree with Mr. Millar, that such decrease may be attributed to the strong expression of the public sentiment; but we cannot affix to that expression of sentiment, the opprobrious term of "clamour," nor are we sufficiently astute to discover the sinister motives which could urge men to excite discontent upon the subject. We think that we can, more truly, as well as more charitably, refer the present disposition of the public mind to the illumination which, upon this subject, it has received within the last half century; the increase of crime seems also to account for the degree of attention which has been directed to criminal law, more satisfactorily than any efforts of rash and intemperate philanthropy.

But this excitation of the public mind, although it has

had a powerful influence upon the executive, has been yet tardy in its operation upon the legislature; and from this inequality has unhappily arisen an incertitude as to the penalties of crime, to which we attribute very calamitous effects. It is not necessary for us to expatiate on the importance of the certainty of punishment. In the sixth page of their Report, the Criminal Law Committee announce their sense of the existing evil, in the following terms: "The frequent recurrence of the unexecuted threat of death in a criminal code, tends to rob that punishment of all its terrors, and to enervate the general authority of the government and laws." We do not venture to represent it as the sole or primary cause of the increase of crime, but we do think, that the multiplicity of cases in which the crown interposes to avert the punishment appointed by law, has contributed materially to that increase. But the evil is not, in our apprehension, that death has not been in those cases inflicted, but that it had been threatened.

The argument of the friends of mitigation, that by it, punishment might be made more certain, has been answered by an exposition of the difficulties necessarily attendant upon every system, and thwarting the legislator in his attempts to attain that object. But there would be still an unquestionable advantage in relieving us from the additional obstructions which the present state of the law creates. Something has been also said of the advantages of a discretionary power in the abiding executive. But it cannot be contended, that the existing laxity is essential to a proper apportionment of punishment. Objections of this nature, however intrinsically weak, have not been urged without effect. As Mr. Burke observes in his preface to the vindication of natural society, men think there must be something in arguments advanced upon a side of the question on which they had previously imagined nothing was to be said. But the real and substantial consideration operating upon the minds of those who would resist the progress of the reformers of our criminal code is, that capital punishment affords the easiest and readiest means of relieving society from the mass of criminals which it is continually throwing up. This view of the subject has

manifested itself in representations of the expensiveness of such a system of secondary punishment, as would supersede the infliction of death, and in a detail of the difficulties attendant upon it. Upon some occasions, individuals have been distinctly and directly impeached of the atrocious offence of a too tender commiseration for the sufferings of felons and thieves. In order to justify such views, the depravity of offenders has been described in the most unmeasured terms; and they have been spoken of as a body distinct from the other members of the community. It might be imagined from such language, that the persons brought to our bars, at the various assizes and gaol-deliveries throughout the country, belonged to a great fraternity of belligerents against society; and that they were incited to their several offences, by a deliberate principle of depredation and malignity, not betrayed into them by the frailty of human nature, under the instigation of temptation in all its variety of shapes.

This is all radically wrong and vicious, and all we have to say upon it is, that we earnestly hope it will continue to be met by that general reprehension which is so justly its due.

It may seem, to some of our readers, that our observations have been of a nature too general; but they will be pleased to consider, that they are made in reply to reasonings of the same kind; and, notwithstanding all that has been said and written upon the subject before us, we are not aware that the arguments we have employed, have been heretofore urged. Our object has been rather to animate the spirit of humanity, from which an amendment of the criminal code may be expected, than to guide or direct its labours. It occurs to us, to add a few observations, with which we shall, for the present, take leave of the subject. It does not seem to us, to be kept sufficiently in mind, that the plea, of the liability of any individual species of property to depredation, as an excuse for the extreme punishment allotted to such depredation, may be urged too far. We would take leave to intimate, that violence, and that premeditation and deliberation, evinced by perseverance in overcoming whatever obstacles may present