the felon, and administer an oath to them, to give in a true and perfect verdict, relating to the matter of fact for which the said felon was executed; to the intent that a record thereof might be made in the Crown office."*

Our historian has produced a pretty long catalogue of malefactors who suffered under the gibbet law of Halifax. He produces no one instance in which the coroner, holding a jury, found reason to disapprove of the sentence; and he makes the following remark upon the beneficial effects of the usage: “The bad opinion which our ancestors had of furtum manifestum might give rise to the baron's power of punishing it; for nothing surely could more effectually deter from the practice than to take off the offenders without much trouble or expence to the prosecutors, in this public summary way, without the possibility of either pardon or reprieve, if they were found guilty."+

Here an enemy to the reform of our penal code might insist upon the authority of precedent, upon local convenience as a ground of peculiar severity, upon the absence of any historical testimony to prove the abuse of a law, rigorous, indeed, but effectual, and upon all the advantages which speediness and certainty in the execution of a sentence are supposed to bestow upon punishment as intended for example. Yet, for reasons which it is unnecessary to enumerate, I am inclined to believe that few modern legislators would be willing to restore and extend to other places the gibbet law of Halifax, as an additional and more efficacious security for property in our great manufacturing towns.

The adage which prayed for deliverance from "Hull, Hell, and Halifax," is founded upon principles which lie deep in human nature, as influenced by fortuitous and external circumstances. A farmer is hostile to the stealing of sheep, cows, and horses; a trader is implacable against forgery, and even sex, as well as condition, points the fears and the anger of mankind against particular crimes. But the laws, while they provide for the security of all subjects, should not perhaps enter into the prejudices and passions of any classes; and in the course of

* Watson's History of Halifax, page 215. † Page 221.

trials well does it become judges to look with a most watchful eye upon the local and other accidental considerations by which the minds of jurymen are likely to be affected in their views upon the malignity of actions, and the credibility of evidence. The various crimes which have been committed in a county where I have resided for twenty-three years-the capital punishments which have been inflicted-the harsh spirit by which juries have been more than once actuated, and the fatal mistakes which, after most careful enquiry, I seriously believe to have been made in three cases, without any apparent want of vigilance, or impartiality, or humanity in the court, fill my soul with the deepest sorrow. "The sting of death is sin, and the strength of sin in the law" of England is far too great. Let "grace," in conformity to the real import of the Scriptural word, abound in the exercise of human power, and as members of society, we shall have less to deplore, in sin against the law, and in death under it.

After my observations upon our penal code had been printed off, I heard that a Scottish lawyer, high in station, had moved in the House of Commons for leave to bring in a Bill which should extend the English punishment of child-murder to Scotland.

The precariousness of circumstantial evidence, the difficulties which medical men have repeatedly shewn to exist in ascertaining the causes by which the life of children newly-born is destroyed, the earnest and repeated cautions which they have suggested to our legislature, the salutary and mighty force of natural instinct, the influence of shame and remorse upon the mind of females in consequence of violated duty-these are considerations which at all times should restrain an English Parliament from precipitation in having recourse to the summum supplicium. But in Scotland there are other circumstances which deserve great and peculiar attention; for education in that country has long and happily diffused habits of diligence, sobriety, decorum, and religious seriousness among the lower class of the community. Why, then, do our neighbours in North Britain stand in need of a regulation which even English juries, with all their abhorrence of cruelty to the innocence and helplessness of infancy, and all their attachment to the amiable virtues of domestic life, are rarely eager to enforce ?

Have complaints been made in Scotland, not, I mean, by selfappointed and self-applauding societies for the suppression of vice-not by little circles of projectors and sciolists, who meet together in a capital, and chat together upon things done, or by them thought fit to be done, "in Heaven above, or the earth beneath, and in the waters within the earth"-not by officious and narrow-minded magistrates of provincial towns, but by the general voice of a people advancing in civilization, and hitherto undebased by luxury? Is the Bill approved by such men as Mr. Malcolm Laing, or Mr. Jeffery, or Mr. Dugald Stewart, and other distinguished professors who now adorn the Universities of Scotland by their researches in practical ethics, in political economy, and the relations and interests of classes and individuals, in private as well as public life? Before Englishmen, who have few or no opportunities for direct observation, decide upon so important a subject, is it not proper that the representatives of counties and boroughs in Scotland should be called upon to communicate information to Parliament? Does their opinion agree with that of the learned member who moved for the Bill? Is that opinion founded upon their own immediate and personal enquiries, or upon the tragical tales and oracular harangues of this or that person belonging to courts of justice? What evidence have they severally or collectively to lay before the Parliament of the United Kingdom for the reality of the fact itself, that child-murder has lately increased? What is the amount of that increase? What proportion does it bear to the commission of the crime, when the population of the country was less? What are the probable causes of the evil in the present state of things, if it does exist? What are the moral restraints upon it from improved civilization, and increased means of subsistence ? What circumstances of base seduction, or barbarous desertion upon the part of fathers, and of extreme depravity, or extreme ignorance, or extreme penury, upon the part of mothers, have been observed in particular cases? Is it possible, after the example of America, in other questions of homicide, to fix gradations of child-murder, and to adapt punishments to the greater or less aggravations of the offence? Is it equitable to inflict the heavier punishment of death upon the same kind and the same degree of testimony, upon which the lighter punishment of ex

patriation has been hitherto inflicted? Is it, and why is it, very unlikely that any punishment short of death can be effectual? Is it, and why is it, likely that death itself will be effectual? Shall a rare and almost solitary example of clemency, supplied to us by the laws of Scotland be snatched away, so as to be no longer a model for imitation or a subject for praise to their English neighbours? In the intercourse of legal exchange shall the inhabitants of Scotland, instead of imparting their lenity for our rigour be compelled to accept our rigour for their lenity? Shall it be said of the party which solicits, and the party which grants this unprecedented partnership in severity, that in the same island, and in the same age, though subjects are progressive in the knowledge, governors are retrograde in the practice of legislation ?

μὴ γένοιτο.

A wise man, if compelled to chuse between extremes, will make his choice with reluctance; nor would he venture upon making it before he had carefully and impartially surveyed all circumstances, under all aspects of positive and comparative utility. But there are intelligent, humane, and serious persons to whom the severities long exercised against unhappy mothers in one part of the kingdom, and now meditated in another, may, as an alternative, appear on some occasions not much less objectionable than the legalised xvrptopòs* of the Athenians, which, after all, does not seem to have been very often practiced.†

*Contemplating, as I do, with satisfaction, the improved sentiments and habits of Christian countries, I cannot slightly pass over the impunity granted to infanticide, even among the polished and enlightened Athenians. What Pliny says of the natural world is true in the moral. "Quædam pudenda dictu tanta auctorum asseveratione commendantur, ut præterire fas non sit."-Nat. Hist. lib. xxix. cap. 5. It were absurd to deny the reality of the practice. But humanity would dispose us to believe that it was not very frequent. It has not fallen in my way to meet with any instances of it in the writings of the Greek orators or Greek historians, and little stress is to be laid on the case of

+ Vid. Petit. Leg. Attic. p. 220, edit. Wesseling.

The nobility, and it pains me to add, the clergy of Sweden, as I have stated in page 467, resisted the humane wishes of a

Ion in the tragedy of Euripides, and a few other similar stories which have been take up by poets. I have to confess farther, that of the law which is said to have permitted the exposure of children at Athens, I have never been able to find the contents, or the origin, or the name of the author. Let us, however, examine the evidence which has come down to us, and the use which has been made of it by scholars.

Turnebus, in lib. xxxviii. cap. 38 of his Adversaria, gives no example, but contents himself with noticing the word xurρioμòs, and referring to Hesychius. But in lib. ii. tit. 4, of the Commentary on the Leges Atticæ, Petit says, "Quemadmodum liberos tollere in patris erat positum potestate, ita etiam necare et exponere, idque, meo judicio, non tam moribus, quam lege receptum fuit Athenis, non cum hac summi Philosophi exceptione Polit. Libro vi. cap. 16. περὶ δὲ ἀποθέσεως καὶ τροφῆς τῶν γιγνομένων, ἔστω νόμος, μηδὲν πεπηρωμένον τρέφειν. Nam non tantum liberorum τοὺς πεπηρωμένους, sed etiam quos libebat sanguinolentos licebat vel necare, vel exponere, quod certe idem est: etenim Necare, inquit Paulus Libro 11. Sententiarum [Tit. xxiv. 10.] videtur non tantum is, qui partum perfocat: sed et is, qui abjicit : et qui alimonia denegat: et is, qui publicis locis misericordiæ causa exponit, quam ipse non habet. Î. 4. D. de agnoscendis liberis." Petit here gives his own judgment, unsupported by the express testimony of any ancient writer, that the laws, as well as usage, sanctioned the practice at Athens. It must, indeed, be presumed that if the practice prevailed for a long time, there was at least a tacit consent from the laws. But the passage which Petit has quoted from Aristotle proves nothing to Petit's purpose. Aristotle is delivering his own opinions upon an ideal republic, and says, "let there be a law," without any distinction of place, and without the slightest intimation that such a law was in force at Athens. He adds: « Διὰ δὲ πλῆθος τέκνων, ἐὰν ἢ τάξις τῶν ἐθνῶν (legitur, ἐθῶν) κωλύῃ, μηδὲν ἀποτίθεσθαι τῶν γιγνομένων, ὡρίσθαι γὰρ δεῖ τῆς τεκνοποιίας τὸ πλῆθος,” and if more than the prescribed number be begotten, he states certain circumstances under which " έμποιεῖσθαι δεῖ τὴν ἄμβλωσιν.” Not a word is said about any law which permitted infanticide at Athens. But to states where by law it might not be permitted, he gives directions for limitting the number of children, and points out an expedient most shocking to our sensibility for preventing inconvenience to parents when the number was likely to be exceeded. Singular it is, that even the humane Pliny does not seem to differ very widely from Aristotle, for having described a process which