have no political objects to accomplish; we seek no change of ministers; we labour to advance no patron. Upon the places, baubles, and distinctions, by which common ambition is gratified, we can look with utter disdain. "Such outward things dwell not in our desires. But if it be a sin to covet" the welfare of England, and the happiness of man, "we are the most offending souls alive."

We have spoken our minds: we have spoken, and we shall always speak, as men disposed to be loyal, and determined to be free; as friends to the person and office of the king; as lovers of the country; as believers in its religion; as supporters of its government; as admirers of its constitution; and as ready to live and die for its defence and preservation.

ON THE CRIMINAL LAW.

ALTHOUGH a review of particular books does not at present form a part of our plan, the appearance at this time of a tract upon Criminal Law leads us to make some observations upon that most important topic. The tract to which we refer was originally published in the Quarterly Review (Number xlvii.), and engaged a good deal of attention. It is now republished, much amplified and altered, together with a short Essay on the Statute Law and Reports which had also appeared in the same work. The writer has now affixed his name. His book embodies the main objections which have been raised against that reform in our penal jurisprudence, in promoting which so much energy and assiduity have been exhibited. Of some of these objections, it is our intention to say something, although a full or methodical examination of the subject is far beyond our present purpose. The reform has already commenced; and our readers are aware that, in the course of the late session, the House of Commons, on the motion of Sir James Mackintosh, adopted a resolution pledging itself to an early revision of the Penal Code, by the terms of the resolution

A

affirming its "undue rigour," and that by mitigation it may be rendered more efficacious. Thus has the abstract principle, insisted upon by the distinguished Chairman of the Committee on Criminal Law, and his enlightened coadjutors, received the sanction of that branch of the legislature to which they belong. In carrying this principle into effect, however, in determining the limitations and restrictions with which it is to be received and acted upon, and as to the mode in which we are to conduct our reformation, occasion must necessarily present itself for the display of all those diversities of sentiment which prevail upon this most momentous subject. By Sir James Mackintosh's resolution, as originally drawn up, the existing systems of imprisonment and of transportation were pointed out as fit subjects of discussion, together with the mitigation of the Penal Code, but the clause regarding them was expunged at the suggestion of some members of government. committee was already sitting for the investigation of the first subject, and it appeared that a person (whose report has since been received and printed,) had been deputed to collect in New South Wales information whereupon to ground some legislative measures as to the second. According, however, to the views taken by many persons, the mitigation of the criminal code is an object altogether subordinate and posterior to the reformation of our system of prison discipline and transportation: they contend that we must first provide an efficacious system of secondary punish. ment, before we proceed to restrict the application of capital punishment. "Whatever be the nature of the ties," it is said, "which hold society together, they cannot in prudence be dissolved, till others be provided in their stead." As this position, in the full extent of the terms, has been strenuously maintained, and as it presents at the very outset a bar to all mitigation of the law, it may be worth considering. It seems to us to involve a misapprehension of a twofold nature, a misapprehension of the principles which should govern the application of capital punishment, and a misapprehension of the nature of the difficulties attendant upon the subject of secondary punishment.

It may be thought that the grounds upon which legisla

tion may be conducted, with reference to the punishment of death, are in themselves sufficiently plain and obvious. As to them, there seems to be a very general consent among all men. But however they may agree in the abstract theory, people are found to differ widely when it becomes necessary to fix what shall be the practice. Thus, although it cannot for a moment be controverted that it is only the urgent necessity of the case which warrants the civil magistrate to inflict death, those persons who would dissuade the proposed mitigation of the criminal code appear to forget this truth. They say we must have the most convincing proofs of the efficacy of minor punishments, before we can relinquish that of death. Those who would either greatly restrict the application of the last, or abolish it, must first shew that it is unnecessary. This reasoning appears to us altogether sophistical and unsound. The persons who recommend the minor punishments have a much better title to require the "most convincing proofs" of the necessity and successful operation of the " ultimum supplicium," than have their opponents to make such a demand upon them. The latter, however, far from thinking themselves bound to exhibit evidence of the necessity of the rigour which they approve, insist that the onus probandi lies on the other side. To some persons it may not seem very material to adjust this point in the dispute. In all controversies, however, it is one of much importance; and in the present the decision of it involves the whole matter in debate. In questions of an intricate and complex nature, it is a most desirable object to ascertain whether, in the event of our finding it impossible to distinguish between the cogency of the arguments on the one side and the other, there be not some collateral circumstance which should direct our course. The scantiness of our information, and the imbecility of our judgment, often render us unable to obtain any definite conclusion; but if we be aware on what side the onus probandi lies, we have at least the presumption afforded by that knowledge to guide us. Now, if there be any question on which any such presumption arises, that question is as to the infliction of capital punishments. Justifiable upon the plea of necessity alone as is that punishment, it is

too much to say, that those who question the existence of this necessity, or demand that its extent shall be investigated, proceed upon any rash or novel theory. We must never forget that the same exigency which creates, limits likewise, the right, and that it is not until we have assured ourselves, as far as such matters afford assurance, of the futility of every other means, that we are warranted in bereaving a fellow creature of life. The same benign caution which distinguishes the administration of British law, should also characterize British legislation; and for the same reason, that if the guilt of the accused be not clearly established, presumitur pro neganti, should a less extreme punishment be allotted, if the expediency and necessity of capital punishment be problematical. It will be observed, that the argument, employed by those hostile to the proposed mitigation, resolves itself into a demand of evidence shewing capital punishment to be needless; that is, amounts to an attempt to throw the burden of proof upon the friends of minor punishments; whereas it does naturally and properly fall upon themselves. We cannot too strenuously insist upon this doctrine, because we must admit the obstacles which present themselves, with all the aid of returns and reports, to making up a definite judgment as to the expediency and efficacy of capital punishment. It is a subject of great latitude, and surrounded with many difficulties. Upon it there has been accordingly much diversity of opinion. Great names have been appealed to by the advocates of the milder system, while their opponents have not failed to adduce powerful authorities upon their side, and in some instances both parties allege the concurrence in their several views of the same individual. Notwithstanding the force of these considerations, it is unhappily true, that, in the course of the discussions on criminal law, some feelings have evinced themselves of a nature very unseemly in persons occupied in the dignified office of investigating the principles of penal jurisprudence. Objections have been raised which did no credit to a philosophical controversy; hard names have been applied, imbecility has been imputed, and covert insinuations of an indistinct nature thrown out. All this is much to be regret

ted, not less for the difficulties it has thrown in the way of the honest and zealous searcher after truth, than for the reflection which it casts upon our age and country. We may indeed indulge a high and proper pride in the extensive prevalence, at this day, of an active and liberal spirit of inquiry, but we cannot escape the recollection, that the fierce animosities of party have embroiled even the sacred question of penal jurisprudence.

When we represent the question to be one of difficulty and complexity, let us not, nevertheless, be understood to intimate that it is one which we deem it impossible to solve. We think that an investigation of the principles of human action, warily and patiently conducted, will lead us to just conclusions; and we confess ourselves of opinion that it is rather in this way that satisfactory results may be attained than in the mode which some have adopted. Returns have been exhibited to shew the effects which alteration of punishment has produced; but from them we deem it very difficult to draw any safe or accurate conclusions by reason of the variety of circumstances which tend to disturb the operation of the punishment. In a great commercial country like ours, every alteration of prosperity and adver- ' sity has its effect in augmenting or diminishing crime; the state of population also, whether increasing or declining, must be taken into account, and experience has shewn that in time of peace the number of criminals is much greater than in war. It is also to be remembered, that when any particular species of property has become an object of excessive depredation, the owners will resort to measures of extraordinary precaution, the effect of which it is impossible to distinguish from that of an alteration in the punishment, should they chance to be contemporaneous. This is only a single specimen of the uncertainty in which the subject is enveloped. Many more might be noticed. We must not lose sight of the fact, that a considerable reluctance to bring offenders to justice is sometimes manifested, and as the only means of ascertaining the amount of crime is by the number of prosecutions, we must be under such circumstances deceived. Uncertain, however, more or less, as must be all inferences from returns relating to our own