of the former. 66 a function of magistracy as the trial The public welfare is interested in both. The convic15 tion of an offender should depend upon nothing but the proof of his guilt; nor the execution of the sentence upon any thing besides the quality and circumstances of his crime." Nothing can show in stronger point of view the defects of the system which Dr. Paley defends, than this single passage. He here imposes upon the judges, duties which it is impossible for them to discharge. If indeed, he had contented himself with saying, that this suspension of the law ought never to be a favour yielded to solicitation, or granted to friendship, or made subservient to the conciliating or gratifying of po litical attachments,' no person could have disputed his doctrine, though many might have wondered that he had thought it worth while to state what was so obvious; but when he goes on to say, that it must be considered as a judicial act, or as the adjudication of a question of public justice, he really deals with the judges no less hardly than the Egyptian ty. rant did with the children of Israel, when he commanded them to make bricks, but withheld from them the materials with which they were to be made. A judicial act is the application of an existing law to facts which have been judicially proved: but where is the law of which the judge, in the exercise of this power, is to make the application? Or how can it be said that there has been judicial proof of facts, for which the criminal has never been put upon his trial, which have never been submitted to a jury, and upon which, consequently, a jury has come to no decision? "Of all the duties, indeed, which a judge has to discharge, the exercise of this discretion must be the most painful. It is true that there are no duties, however awful, no situation, however difficult, with which long habit will not render the best of men familiar; but if we represent to ourselves a judge newly raised to that eminence, just entering upon the circuit, and become for the first time the arbiter of the lives of his fellowBELFAST MAG. NO. XXII. creatures, we shall be able to form to ourselves some idea of the difficulties he has to encounter, and of the anxiety which he must necessa→ rily feel. Sworn to administer the law, he is at the same time the depositary of that royal clemency which is to interrupt its execution. In dan ger of obstructing the due course of justice on the one hand, or refusing mercy to those who have a fair claim to it on the other, he finds no rules laid down, or principles established by the legislature, to guide his judg ment, He must fix for himself the principles and the rules by which he is to act, at the same time that he is to apply them and bring them into action, and yet he cannot but be a ware, that the principles which he shall adopt will probably not be those of his successor, who will have maxims of justice and of mercy of his own, but which cannot possibly be foreseen; and at the same time he must know that it is nothing but a uniformity of practice which can make the exercise either of severity or of lenity useful to the public. In such a state of embarrassment, it is, that he is called upon to decide, and upon his decision the life of an individual depends; nay, upon the decision of a single case may depend the lives of many individuals. The clemency he shows, though it spares' the life of a single convict, may be the means of alluring others to the commission of the same crime, who from other judges will not meet with the same lenity. The execution of a severe judgment may be the means of procuring impunity to many other criminals, by inducing prosecutors to shrink from their duty, and jurymen. to violate their oaths. "From the foregoing observations it should seem, that the laws, which it is proposed to repeal, cannot weil be defended as part of a general system of criminal jurisprudence. Taken by themselves, it seems still more difficult to justify them. They are of such inordinate severity, that as laws now to be executed, no person would speak in their defence. "It is sufficient, however, to say of those laws, that they are not, and that it is impossible that they should Xx be executed; and that instead of preventing, they have multiplied crimes, the very crimes they were intended to repress, and others no less alarming to society, perjury, and the obstructing the administration of justice. "But although these laws are not executed, and may be said, therefore to exist only in theory, they are attended with many most serious practical consequences. Amongst these, it is not the least important, that they form a kind of standard of cruelty, to justify every harsh and excessive exercise of authority. Upon all such occasions these unexecuted laws are appealed to as if they were in daily execution. Complain of the very severe punishments which prevail in the army and navy, and you are told that the offences, which are so chastised, would by the municipal law be punished with death. When not long since a governor of one of the West India islands was accused of having ordered that a young woman should be tortured, his counsel said in his defence, that the woman had been guilty of a theft, and that by the laws of this country her life would have been forfeited. When in the framing new laws, it is proposed to appoint for a very slight transgression, a very severe punishment, the argument always urged in support of it is, that actions, not much more criminal, are by the already existing law punished with death. So in the exercise of that large discretion which is left to the judges, the state of the law affords a justification for severities, which could not other wise be justified. When for an offence, which is very low in the scale of moral turpitude, the punishment of transportation for life is inflicted, a man who only compared the crime with the punishment, would be struck with its extraordinary severity; but he finds, upon inquiry, that all that mass of hunian suffering which is comprised in the sentence, passes by the names of tenderness and mercy, because death is affixed to the crime, by a law scarcely ever executed, and as some persons imagine, never intended to be executed. "For the honour of our national character; for the prevention of crimes; for the maintenance of that respect which is due to the laws, and to the administration of justice; and for the sake of preserving the sanctity of oaths; it is highly expedient that these statutes should be repealed.” The difficulties in which jurors are sometimes involved, and the incon sistencies, which they adopt, rather than find guilty of death for small offences, while in fact they exemplify the struggles of conscience between pressing deviations from rectitude on either hand, are thus set forth at the conclusion of this pamphlet. "The latitude which juries allow themselves in estimating the value of property stolen,, with a view to the punishment which is to be the consequence of their verdict, is an evil of very great magnitude. Nothing can be more pernicious than that jury-men should think lightly of the important duties they are called upon to discharge, or should acquire a habit of trilling with the solemn oaths they take. And yet, ever since the passing of the acts which punish with death the stealing in shops or houses, or on board ships, property of the different values which are there mentioned, juries have, from motives of humanity, been in the habit of frequently finding by their verdicts, that the things stolen were worth much less than was clearly proved to be their value. It is held, indeed by some of the judges (whether by all of them, and upon all occasions, I of life may fairly in fixing the value am not certain) that juries in favour of the property, take into their consideration the depreciation of money which has taken place since the sta tates passed, or in the words of Mr. Justice Blackstone, " present nominal value of money to may reduce the its ancient standard."* To show, therefore, to what an extent juries have assumed to themselves a power of dispensing with the law in this respect, it will be proper to refer to the earliest trials, for these offences, that I happen to have met with. "In the year 1731-2, which was only thirty-two years after the act of King * Com. vol. iv. p.239. 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 thirty three 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, twentythree 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 Septem. ber 1732, for stealing in a dweiling 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 Sher rington, in October 1732, was indicted for stealing privately in a shop, goods which he had actually sold for 1 58. 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 £3 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 pri soners, in company together at the same time, stole the same goods pri vately in a shop, and the jury foun one guilty to the amount of 4s. 10u. and the other to the amount of 5s. that is, that the same goods were at the same moment of one and 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 havng 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." In this critique we have, as in former instances, preferred to give an abridgement of the author's train of reasoning on highly important subjects, putting our readers in possession of the substance of the book, and leaving them to their own conclusions. In the present instance Sir Samuel Romilly is entitled to the praise of using strenuous and enlightened ex ertions in the cause of humanity; on the one hand he is not inclined to support the cause of justice on angry and vindictive principles, nor on the other he is not seduced by a coun terfeit philanthropy, to injure the innocent by letting the guilty escape, for into this error some well-meaning people have at times fallen; but his comprehensive views are directed to a liberal review of our system of jurisprudence, and to the laudable attempt to induce the legislature to proportion more accurately the pu nishment to the enormity of the offence committed. We most heartily wish success to his endeavours, which we trust will be ultimately crowned with success. The dread of innovation, and his present unpopularity in the House on account of his honest defence of John Gale Jones, as some of the members threatened, has prevented his carrying the measure at present to the extent he wishes, but sooner or later we confidently trust justice and enlightened policy will prevail. The abolition of the slave trade, after years of patient and persevering struggle affords encouragement not to despair. Before we dismiss the subject we have one important observation to make; that, laudable and praiseworthy as the attempt is to reform our crimi nal code, by lessening the number of capital offences, another reform is essentially necessary to be connected with it, to give it efficacy, and to lessen the number of crimes. We allude to a reform in the management of our jails, and a system of employing convicts in hard labour; at present the idleness of a prison corrupts its inmates. Convicts should be forced to work, and then one of the principal inducements to commit crimes would be removed, when it is found that transgressing the law leads to hard labour, coupled with finement. a judicious mixture of solitary con In another part of this Magazine will be found an account of the Philadelphia prison, in which this system has been successfully tried. To render such a plan efficacious, much disinterested exertion would be wanted in those who would on prin. ciples of pure philanthropy undertake the superintendence of prisons, as inspectors, and doubts may be entertained, whether in this selfish and apathetic age, the plan would not fail for want of vigilant superinten. dants: : yet we would heartily wish to see the attempt made, and we trust that there is yet as much virtue left, as would in some places insure support, while the example of a few might stimulate others. If the energies of governments, and the efforts of individuals were directed to the amelioration instead of the destruction of mankind, a new era of happiness would commence and peace and civilization would supplant the aggressions of private lite, and the calamities of public warfare. K. prevent my living to my last moent, more happy in my conscious nocence, than my persecutors can with the rage that animates them. they condemn me to death, I will to death as a man would go to Dose." A multitude of new victims being ught to the Abbaye, Madame land was informed she must change r situation. To be alone, she was liged to be confined in a small set the window of which was over e centry who guarded the prison te. "Who goes there? Kill him! ard, patrole" called out in a thunring voice, were the sounds that anyed her through the night. The uses were illuminated, and from the umber and frequency of the patroles was easy to infer, there had been me commotions, and that more are to be feared. Madame Roland d listened impatiently to hear the Its of her door drawn back, that se might ask for a newspaper. She ad in it the decree against the enty-two proscribed deputies of the ational Convention; the paper fell m her hands, while she exclaimed a transport of grief "my country undone!" Firm and tranquil herIf, beneath the yoke of oppression, e could not see the triumph of ilt and error, the national repre ntation violated, the torch of civil scord lighted up, the enemy about avail himself of the divisions of e people, freedom lost to the north France, probity and talents proribed, without poignant sorrow. Farewell my country!" exclaimed e,"sublime illusions, hope and hapness farewell! splendid chimeras! om which I reaped so much delight, e are all dispelled by the horrible rruptions of this vast city. I des sed life: the loss of you makes e detest it, and defy the utmost ry of the men of blood." Several days elapsed and still she nderwent no examination. To the Iministrators, who had visited her different pretences, she unirmly expressed herself with force nd dignity. During her confinement the Abbaye, this courageous and nfortunate woman beguiled her imrisonment by books and literary laours; she felt pot ennui, which is the disease of hearts without feeling, and of minds without resource 10 themselves. Madame Roland had been induced by her love of order, and habits of regularity, to enquire into the customs and expenses of the prison, which she was desirous rigidly to observe. She determined to make an experi ment how far the human mind was capable of diminishing gradually the wants of the body; as her purpose for adopting this plan was rather moral than economical, she appropriated the sums thus saved for the relief of those miserable wretches who were lying upon straw in the prison; she had the pleasure of reflecting that by these deprivations she was adding to the comfort of others. " On the 24th of June, the gaoler's wife came to inform Madame Roland that an administrator was waiting to see her. "I come, said he, to set you at liberty." "It is indeed,” replied she, "very right to remove me from this place, but that is not all, I wish to return home, and the door of my apartment is sealed up." "The administration will have it opened in the course of the day.' Her first idea was not to remove until the evening, but a little reHlection convinced her of the folly of remaining in prison, whence she was free to depart; the gaoler was also impatient to take possession of her lodging. She was ignorant that he intended it for Brissot, whom she never even supposed was her neighbour, and that, soon after, it would be inhabited by a heroine worthy of a better age, and a better deed, the celebrated Charlotte Cordey. Driving home, with the intention of staying there a short time, and then proceeding to the house of the worthy people who had adopted her daughter, she jumped lightly. from the coach, and flew as on wings, under the gateway. "Good morrow Lamarre," said she to the porter cheerfully as she passed. She had scarcely proceeded up four or five steps, when she heard herself called by two men who followed her. "We arrest you ;" said they, "in the name of the law." "Let me sit down and breathe, ex claimed she," I must not rejoice at being set at liberty; it is only a |