the clearest testimony; and that, to escape the cruelty and odium of inflicting upon small offences capital punishments, doubts are raised, where there is no shadow of pretence for them, and verdicts are given in the very face of common sense and of truth. In proof of this assertion, he adduces numerous instances of prosecution for robbery, in which the guilt of the prisoner was put beyond all question, the amount taken and every circumstance undeniably proved, but which ended either in an absolute acquittal, or in a verdict finding the prisoner guilty of stealing a sum less than that, which constituted the offence capital. For example, a woman was indicted for stealing in a dwelling-house two guineas with two half-guineas, and forty-four shillings in other money. She confessed the fact, and the jury found her guilty; but as the stealing of such a sum would be death, they found that the sum stolen was thirty-nine shillings. Another female was indicted for stealing lace, for which she had refused to takeļeight guineas, offering it for sale at twelve. The jury, who convicted her of the theft, found the lace to be worth thirty-nine shillings.

A yet stranger case was cited by Sir S. Romilly in the House of Commons, in which it appeared, that two men, George Dawson and Joseph Hitch, indicted for the same offence, being in company together at the same time, stole the same goods privately in a shop, and (five shillings stolen in this manner being punishable with death) the jury found one of the prisoners 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 mon

strous proceeding,' says Sir S. Romilly, 'is accounted for, by finding that Dawson, who was convicted of the capital offence, had been tried before at the same sessions on a similar charge, and was then convicted of stealing to the amount of 4s. 10d. The jury seem to have thought, that having had the benefit of their indulgence once, he had no further claims upon their mercy, and therefore rendered their verdict according to the evidence.'

These instances, and numerous others like them, which are familiar to every student at law, are apt to shock the common sense and right feelings of the inexperienced. But they are among a vast number of cases, frequently occurring in the English courts, in which humanity continues to

triumph over the severity of law, at the expense of palpable falsehood, in the very face of common arithmetic, which still makes two and two four, and by the most open violation

of oath.

The same object, we are told, is obtained by a species of quibbling, allowed by courts, but contrary to the spirit of the law, and scarcely less absurd in itself, than mischievous in its operation. For example, if a man be indicted for stealing a horse, and it is proved to be a female horse, called a mare; or a sheep, and it is proved to be a female sheep, called a ewe, he is acquitted. But still worse, as is affirmed by Mr. Montagu to have happened at the Wiltshire assizes in 1825, 'a man being tried for killing another by running over him in a coach drawn by four horses, and it being proved that one was a mare, he was acquitted.' Who shall wonder, if the guilty sometimes exult, or presumptuously rely on the glorious uncertainty of the law?

Here, then, we find two opposite but altogether compatible evils attending a code of such shocking severity as is the criminal code of England. On the one side, there is the frequent escape or absolute impunity of the most abandoned, from the unwillingness of the injured to prosecute, or of juries to convict to death; and on the other the occasional execution of the law in its full severity upon perhaps a young offender for a transgression of inferior magnitude; which, by turning the just indignation of the community against the crime into pity for the convict, perverts the ends of justice, and begets hatred or jealousy of the law.

To prove the extreme reluctance on the part of the injured to prosecute for offences, not committed with violence, but where conviction would be followed by death, Mr. Montagu adduces a mass of evidence of the most satisfactory kind. And we may observe in passing, that his work, though presented in a somewhat peculiar form, of apothegms and axioms, or general principles maintained by facts, which he leaves his reader to find in his notes, is written throughout with calmness and good judgment. It has the merit, which we deem not small, of freedom from that extravagance of sentiment and over-statement, so often found, but invariably offensive, in the works of professed philanthropists; who are continually in danger of injuring their cause, however excellent, by an absurd sentimentality on the one hand, or

exaggeration of facts on the other, which serves but to beget a distrust in the reader even of what he might see reason to admit, and provokes him to hold back his sympathy for the cause just in proportion as it is demanded by the writer. But we will ourselves come to facts.

In the year 1819, as we learn from this author, a committee of the House of Commons was appointed to consider and report upon so much of the criminal law as relates to capital punishment in felonies; and the investigation was with a view to ascertain what severity of legal punishment the moral and religious sentiments of the country would sanction. It will be observed, also, that the inquiry was with particular reference to the crime of forgery, which, as is well known by many signal examples from the times of the unfortunate Perreaus and the yet more deplorable instance of Dr. Dodd in 1777, the justice of England has never failed to pursue with stern and unrelenting severity.

Before this committee various persons were examined, of whom were eminent bankers, merchants, and officers connected with the administration of justice. Among these we find the names of Dr. Colquhoun, the well-known writer on the subject of police; Sir Richard Phillips, who had served as a sheriff in London; Mr. Harmer, a solicitor of extensive practice in criminal courts; the Rev. Mr. Cotton, the Ordinary, or Chaplain, of New-gate; the keeper of Newgate; the City Solicitor, the Lord Chief Baron of the Court of Exchequer, and several individuals from different parts of the kingdom.

From this various testimony, which was of the most consistent and decisive character, we can here select but a small part. Nothing further could be demanded to prove the injurious effects of the punishment of death for this class of offences. From among the merchants, we will take the evidence of Isaac Lyon Goldsmid, Esq.

'Has it ever happened to you to know, whether persons are in many instances deterred from prosecutions for forgery, in consequence of the severity of the punishment if they are convicted? A circumstance occurred in my own family, in which I was induced to forbear from prosecuting, in consequence of the severity of the punishment.

'You have probably had some experience with regard to the reluctance to prosecute for forgery, of bankers and the more

opulent tradesmen in this town, when they know the punishment is death?-There is no doubt of it; and great exertions are generally made to awaken every kind of feeling that can possibly exist in the human breast, and those feelings would not be attempted to be excited, if the punishment were of a milder

nature.

'Do you think that the punishment of death has a tendency generally to prevent prosecution?-I have no doubt that is the case; and I should think you might have evidence of that being the case, in hundreds of instances, if you were to make any inquiry on the subject.

'Have you had occasion to observe, that there is a reluctance to assist the bank in prosecuting persons who have issued forged notes? Yes, I have observed that is the case; and I have no doubt, that it is in consequence of the severity of the punishment.

'Do you think, that this indisposition to prosecute for forgery, when the punishment is capital, is prevalent among the leading merchants and bankers in London, to whom your experience is principally confined? - Wherever my experience has enabled me to decide, I have no doubt that that is the case.' — pp. 158, 159.

The evidence of James Harmer, Esq., claims particular attention. He is, or at that time was, a solicitor of high reputation in London, and of more than twenty years' experience in crown practice at the Old Bailey. We thus condense his testimony, which is too extended for our pages. The intelligent answers given sufficiently indicate the inquiries made.

'It appears to me, that the punishment of death has no tendency to prevent the crime of forgery. Instances have come within my knowledge, of bankers and opulent individuals, who, rather than take away the life of a fellow-creature, have compromised with the delinquent. Instances have occurred of a prosecutor pretending to have his pocket picked of the forged instrument; in other cases, prosecutors have destroyed, or refused to produce it, and have stated publicly, that it was because the person's life was in jeopardy. I will relate a very recent circumstance that occurred under my observation at the Old Bailey. A person, through whose hands a forged bill had passed, and whose appearance upon the trial was requisite to keep up the necessary chain of evidence, kept out of the way to prevent the conviction of the prisoner; it was a private bill of exchange. I also know another recent instance, where some private individuals, after the commitment of a prisoner, raised

a thousand pounds for the purpose of satisfying some forged bills of exchange; and they declared, and I have good reason to know the fact, that if the punishment had been any thing short of death, they would not have advanced a farthing, because he was a man whose conduct had been very disgraceful; but they were friends to the man's family, and wished to spare them the mortification and disgrace of a relative being executed, and therefore stepped forward and subscribed the before-mentioned sum. I have frequently seen persons withhold their testimony, even when under the solemn obligation of an oath to speak the whole truth; because they were aware that their testimony, if given to its full extent, would have brought the guilt home to the parties accused; and they have therefore kept back a material part of their testimony. In all capital indictments, with the exception of murder and some other heinous offences, I have often observed prosecutors show great reluctance to persevere, frequently forfeiting their recognisances; and, indeed, I have, on many occasions, been consulted by prosecutors as to the consequences of refusing to conform to their recognisances, that is, to appear and prosecute the prisoner.'-pp. 162 – 164.

Again;

'I know, that many persons,' summoned to serve at Old Bailey, ' have the greatest disinclination to perform the duty on account of the distress, that would be done to their feelings in consigning so many of their fellow-creatures to death.' Some of them will bribe the summoning officer to put them at the bottom of the list, or to keep them out altogether, so as to save them from this painful duty. The instances I may say are innumerable, within my own observation, of jurymen giving verdicts, in capital cases, in favor of the prisoner directly contrary to the evidence. I have seen acquittals in forgery, where the verdict has excited the astonishment of every one in court, because the guilt appeared unequivocal, and the acquittal could only be attributed to a strong feeling of sympathy and humanity in the jury to save a fellow-creature from certain death. The old professed thieves are aware of this sympathy, and are desirous of being tried, rather on capital indictments, than otherwise. It has frequently happened to myself in my communications with them, that they have expressed a wish that they might be indicted capitally, because there was a greater chance of escape.'pp. 164, 165.

Finally, being asked, 'Are the committee to understand you as stating, that you consider capital punishments to be efficacious only in those cases where the general feelings of the pub2

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