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rule are not so detrimental, as the rule itself is unreasonable;-in criminal prosecutions, it operates considerably in favour of the prisoner: for if a juror find it necessary to surrender to the obstinacy of others, he will much more readily resign his opinion on the side of mercy than of condemnation: in civil suits, it adds weight to the direction of the judge; for when a conference with one another does not seem likely to produce, in

will naturally close their disputes by a common submission to the opinion delivered from the bench. However, there seems to be less of the concurrence of separate judgments in the same conclusion, consequently less assurance that the conclusion is founded in reasons of apparent truth and justice, than if the decision were left to a plurality, or to some certain majority of voices.

rules. It is by the urging of the different analogies that the contention of the bar is carried on: and it is in the comparison, adjustment, and reconciliation of them with one another; in the discerning of such distinctions; and in the framing of such a determination, as may either save the various rules alleged in the cause, or if that be impossible, may give up the weaker analogy to the stronger; that the sagacity and wisdom of the court are seen and exercised. Amongst a thou-the jury, the agreement that is necessary, they sand instances of this, we may cite one of general notoriety, in the contest that has lately been agitated concerning literary property.-The personal industry which an author expends upon the composition of his work, bears so near a resemblance to that by which every other kind of property is earned, or deserved, or acquired; or rather there exists such a correspondency between what is created by the study of man's mind, and the proThe second circumstance in our constitution duction of his labour in any other way of applying which, however it may succeed in practice, does it, that he seems entitled to the same exclusive, not seem to have been suggested by any intelliassignable, and perpetual, right in both; and that gible fitness in the nature of the thing, is the right to the same protection of law. This was choice that is made of the House of Lords as a the analogy contended for on one side. On the court of appeal from every civil court of judicature other hand, a book, as to the author's right in it, in the kingdom; and the last also and highest apappears similar to an invention of art, as a ma-peal to which the subject can resort. There apchine, an engine, a medicine: and since the law pears to be nothing in the constitution of that permits these to be copied, or imitated, except assembly; in the education, habits, character, or where an exclusive use or sale is reserved to the professions, of the members who compose it; in inventor by patent, the same liberty should be al- the mode of their appointment, or the right by lowed in the publication and sale of books. This which they succeed to their places in it; that was the analogy maintained by the advocates of an should qualify them for this arduous office; exopen trade. And the competition of these oppo- cept perhaps, that the elevation of their rank and site analogies constituted the difficulty of the case, fortune affords a security against the offer and as far as the same was argued, or adjudged, upon influence of small bribes. Officers of the army principles of common law-One example may and navy, courtiers, ecclesiastics; young men serve to illustrate our meaning: but whoever takes who have just attained the age of twenty-one, up a volume of Reports, will find most of the ar- and who have passed their youth in the dissipation guments it contains, capable of the same analysis: and pursuits which commonly accompany the although the analogies, it must be confessed, are possession or inheritance of great fortunes; counsometimes so entangled as not to be easily unra-try-gentlemen, occupied in the management of velled, or even perceived. their estates, or in the care of their domestic conDoubtful and obscure points of law are not cerns and family interests; the greater part of the however nearly so numerous as they are appre-assembly born to their station, that is, placed in it hended to be. Out of the multitude of causes which, in the course of each year, are brought to trial in the metropolis, or upon the circuits, there are few in which any point is reserved for the judgment of superior courts. Yet these few contain all the doubts with which the law is chargeable: for as to the rest, the uncertainty, as hath been shown above, is not in the law, but in the means of human information.

There are two peculiarities in the judicial constitution of this country, which do not carry with them that evidence of their propriety which recommends almost every other part of the system. The first of these is the rule which requires that juries be unanimous in their verdicts. To expect that twelve men, taken by lot out of a promiscuous multitude, should agree in their opinion upon points confessedly dubious, and upon which of tentimes the wisest judgments might be holden in suspense; or to suppose that any real unanimity or change of opinion, in the dissenting jurors, could be procured by confining them until they all consented to the same verdict, bespeaks more of the conceit of a barbarous age, than of the policy which could dictate such an institution as that of juries. Nevertheless, the effects of this

by chance; most of the rest advanced to the peerage for services, and from motives, utterly unconnected with legal erudition :-these men compose the tribunal, to which the constitution entrusts the interpretation of her laws, and the ultimate decision of every dispute between her subjects. These are the men assigned to review judgments of law, pronounced by sages of the profession, who have spent their lives in the study and prac tice of the jurisprudence of their country. Such is the order which our ancestors have established. The effect only proves the truth of this maxim;— "That when a single institution is extremely dissonant from other parts of the system to which it belongs, it will always find some way of reconciling itself to the analogy which governs and pervades the rest." By constantly placing in the House of Lords some of the most eminent and experienced lawyers in the kingdom; by calling to their aid the advice of the judges, when any abstract question of law awaits their determination; by the almost implicit and undisputed deference, which the uninformed part of the house find it necessary to pay to the learning of their colleagues; the appeal to the House of Lords becomes in fact an appeal to the collected wisdom of our supreme courts of justice; receiving indeed solemnity, but little perhaps of direction, from

the presence of the assembly in which it is heard | fended from the effects of the crime, by any other and determined. expedient. The sanguinary laws which have been These, however, even if real, are minute imper-made against counterfeiting or diminishing the fections. A politician who should sit down to delineate a plan for the dispensation of public justice, guarded against all access to influence and corruption, and bringing together the separate advantages of knowledge and impartiality, would find, when he had done, that he had been transcribing the judicial constitution of England. And it may teach the most discontented amongst us to acquiesce in the government of his country, to reflect, that the pure, and wise, and equal administration of the laws, forms the first end and blessing of social union; and that this blessing is enjoyed by him in a perfection, which he will seek in vain in any other nation of the world.

CHAPTER IX.

Of Crimes and Punishments.

A

gold coin of the kingdom might be just until the
method of detecting the fraud, by weighing the
money, was introduced into general usage. Since
that precaution was practised, these laws have
slept; and an execution under them at this day
would be decmed a measure of unjustifiable se
verity. The same principle accounts for a circum-
stance which has been often censured as an ab-
surdity in the penal laws of this, and of most
modern nations, namely, that breaches of trust are
either not punished at all, or punished with less
rigour than other frauds.-Wherefore is it, some
have asked, that a violation of confidence, which
increases the guilt, should mitigate the penalty ?-
This lenity, or rather forbearance, of the laws, is
founded in the most reasonable distinction.
due circumspection in the choice of the persons
whom they trust; caution in limiting the extent
of that trust; or the requiring of sufficient secu-
rity for the faithful discharge of it, will commonly
guard men from injuries of this description; and
the law will not interpose its sanctions to protect
negligence and credulity, or to supply the place o
domestic care and prudence. To be convinced
that the law proceeds entirely upon this considera
tion, we have only to observe, that where the con-
fidence is unavoidable,-where no practicable vigi-
lance could watch the offender, as in the case of
theft committed by a servant in the shop or dwell-
ing house of his master, or upon property to which
he must necessarily have access,-the sentence of
the law is not less severe, and its execution com-
monly more certain and rigorous, than if no trust
at all had intervened.

THE proper end of human punishment is not the satisfaction of justice, but the prevention of crimes. By the satisfaction of justice, I mean the retribution of so much pain for so much guilt; which is the dispensation we expect at the hand of God, and which we are accustomed to consider as the order of things that perfect justice dictates and requires. In what sense, or whether with truth in any sense, justice may be said to demand the punishment of offenders, I do not now inquire: but I assert, that this demand is not the motive or occasion of human punishment. What would it be to the magistrate, that offences went altogether unpunished, if the impunity of the offenders were followed by no danger or prejudice to the common- It is in pursuance of the same principle, which wealth? The fear lest the escape of the criminal pervades indeed the whole system of penal jurisshould encourage him, or others by his example, prudence, that the facility with which any species to repeat the same crime, or to commit different of crimes is perpetrated, has been generally deemcrimes, is the sole consideration which authorises ed a reason for aggravating the punishment. Thus, the infliction of punishment by human laws. Now sheep-stealing, horse-stealing, the stealing of cloth that, whatever it be, which is the cause and end from tenters or bleaching grounds, by our laws, of the punishment, ought undoubtedly to regulate subject the offenders to sentence of death: not that the measure of its severity. But this cause ap- these crimes are in their nature more heinous than pears to be founded, not in the guilt of the offender, many simple felonies which are punished by imbut in the necessity of preventing the repetition prisonment or transportation, but because the proof the offence and hence results the reason, that perty, being more exposed, requires the terror of crimes are not by any government punished in pro- capital punishment to protect it. This severity portion to their guilt, nor in all cases ought to be would be absurd and unjust, if the guilt of the of so, but in proportion to the difficulty and the ne- fender were the immediate cause and measure of cessity of preventing them. Thus the stealing of the punishment; but is a consistent and regular goods privately out of a shop may not, in its moral consequence of the supposition, that the right of quality, be more criminal than the stealing of them punishment results from the necessity of preventout of a house; yet being equally necessary and ing the crime; for if this be the end proposed, the more difficult to be prevented, the law, in certain severity of the punishment must be increased in circumstances, denounces against it a severer pun-proportion to the expediency and the difficulty of ishment. The crime must be prevented by some attaining this end; that is, in a proportion commeans or other; and consequently, whatever pounded of the mischief of the crime, and of the means appear necessary to this end, whether they ease with which it is executed.-The difficulty of be proportionable to the guilt of the criminal or not, discovery is a circumstance to be included in the are adopted rightly, because they are adopted upon same consideration. It constitutes indeed, with the principle which alone justifies the infliction of respect to the crime, the facility of which we punishment at all. From the same consideration it speak. By how much therefore the detection of also follows, that punishment ought not to be em- an offender is more rare and uncertain, by so much ployed, much less rendered severe, when the crime the more severe must be the punishment when he can be prevented by any other means. Punishment is detected. Thus the writing of incendiary letters, is an evil to which the magistrate resorts only from though in itself a pernicious and alarming injury, its being necessary to the prevention of a greater. calls for a more condign and exemplary punishThis necessity does not exist, when the end mayment, by the very obscurity with which the crime be attained, that is, when the public may be de- is committed.

the public safety required to suffer; or some would undergo this punishment, where it was neither deserved nor necessary. For if judgment of death were reserved for one or two species of crimes only (which would probably be the case if that judg ment was intended to be executed without excep tion,) crimes might occur of the most dangerous example, and accompanied with circumstances of heinous aggravation, which did not fall within any description of offences that the laws had made capital, and which consequently could not receive the punishment their own malignity and the public safety required.-What is worse, it would be known before-hand, that such crimes might be committed without danger to the offender's life, On the other hand, if to reach these possible cases, the whole class of offences to which they belong be subjected to pains of death, and no power of remitting this severity remain any where, the execution of the laws will become more sanguinary than the public compassion would endure, or than is necessary to the general security.

From the justice of God, we are taught to look, yet the mitigation of punishment, the exercise of for a gradation of punishment exactly proportioned lenity, may without danger be intrusted to the exeto the guilt of the offender: when therefore, in as-cutive magistrate, whose discretion will operate signing the degrees of human punishment, we in- upon those numerous, unforeseen, mutable, and troduce considerations distinct from that guilt, and indefinite circumstances, both of the crime and a proportion so varied by external circumstances, the criminal, which constitute or qualify the mathat equal crimes frequently undergo unequal lignity of each offence. Without the power of repunishments, or the less crime the greater: it is laxation lodged in a living authority, either some natural to demand the reason why a different mea-offenders would escape capital punishment, whom sure of punishment should be expected from God, and observed by man; why that rule, which befits the absolute and perfect justice of the Deity, should not be the rule which ought to be pursued and imitated by human laws.-The solution of this difficulty must be sought for in those peculiar attributes of the Divine nature, which distinguish the dispensations of Supreme Wisdom from the proceedings of human judicature. A being whose knowledge penetrates every concealment, from the operation of whose will no art or flight can escape, and in whose hands punishment is sure; such a Being may conduct the moral government of his creation, in the best and wisest manner, by pronouncing a law that every crime shall finally receive a punishment proportioned to the guilt which it contains, abstracted from any foreign consideration whatever; and may testify his veracity to the spectators of his judgments, by carrying this law into strict execution. But when the care of the public safety is intrusted to men, whose authority over their fellow-creatures is limited by defects of power and knowledge; from whose utmost vigilance and sagacity the greatest offenders often lie hid; whose wisest precautions and speediest pursuit may be eluded by artifice or concealment; a different necessity, a new rule of proceeding, results from the very imperfection of their faculties. In their hands, the uncertainty of punishment must be compensated by the severity. The ease with which crimes are committed or concealed, must be counteracted by additional penalties and increased terrors. The very end for which human government is established, requires that its regulations be adapted to the suppression of crimes. This end, whatever it may do in the plans of Infinite Wisdom, does not, in the designation of temporal penalties, always coincide with the proportionate punishment of guilt.

There are two methods of administering penal justice.

The first method assigns capital punishment to few offences, and inflicts it invariably.

The law of England is constructed upon a different and a better policy. By the number of statutes creating capital offences, it sweeps into the net every crime which, under any possible circumstances, may merit the punishment of death: but when the execution of this sentence comes to be deliberated upon, a small proportion of each class are singled out, the general character, or the peculiar aggravations of whose crimes, render them fit examples of public justice. By this expedient, few actually suffer death, whilst the dread and danger of it hang over the crimes of many. The tenderness of the law cannot be taken advantage of. The life of the subject is spared as far as the necessity of restraint and intimidation permits; yet no one will adventure upon the commission of any enormous crime, from a knowledge that the laws have not provided for its punishment. The wisdom and humanity of this design furnish a just excuse for the multiplicity of capital offences, which the laws of England are accused of creating beyond those of other countries. The charge of cruelty is answered by ob serving, that these laws were never meant to be The latter of which two methods has been long carried into indiscriminate execution; that the adopted in this country, where, of those who re- legislature, when it establishes its last and highest ceive sentence of death, scarcely one in ten is exe- sanctions, trusts to the benignity of the crown to cuted. And the preference of this to the former relax their severity as often as circumstances method seems to be founded in the consideration, appear to palliate the offence, or even as often as that the selection of proper objects for capital pun- those circumstances of aggravation are wanting ishment principally depends upon circumstances, which rendered this rigorous interposition neceswhich, however easy to perceive in each particular sary. Upon this plan, it is enough to vindicate case after the crime is committed, it is impossible the lenity of the laws, that some instances are to to enumerate or define beforehand; or to ascertain be found in each class of capital crimes, which rehowever with that exactness which is requisite inquire the restraint of capital punishment, and that legal descriptions. Hence, although it be necessary to fix by precise rules of law the boundary on one side, that is, the limit to which the punishment may be extended; and also that nothing less than the authority of the whole legislature be suffered to determine that boundary, and assign these rules;

The second method assigns capital punishment to many kinds of offences, but inflicts it only upon a few examples of each kind.

this restraint could not be applied without subjecting the whole class to the same condemnation.

There is however one species of crimes, the making of which capital, can hardly, I think, be defended even upon the comprehensive principle just now stated;-I mean that of privately steal

joined him in the felony; not so much on account of any distinction in the guilt of the offenders, as for the sake of casting an obstacle in the way of such confederacies, by rendering it difficult for the confederates to settle who shall begin the attack, or to find a man amongst their number willing to expose himself to greater danger than his associates. This is another instance in which the punishment which expediency directs, does not pursue the exact proportion of the erime.

ing from the person. As every degree of force is excluded by the description of the crime, it will be difficult to assign an example, where either the amount or circumstances of the theft place it upon a level with those dangerous attempts to which the punishment of death should be confined. It will be still more difficult to show, that, without gross and culpable negligence on the part of the sufferer, such examples can ever become so frequent, as to make it necessary to constitute a class of capital offences, of very wide and large extent. Injuries effected by terror and violence, are those The prerogative of pardon is properly reserved which it is the first and chief concern of legal goto the chief magistrate. The power of suspend-vernment to repress; because their extent is uning the laws is a privilege of too high a nature to limited; because no private precaution can protect be committed to many hands, or to those of any the subject against them; because they endanger inferior officer in the state. The king also can life and safety, as well as property; and lastly, bebest collect the advice by which his resolutions cause they render the condition of society wretched, should be governed: and is at the same time re-by a sense of personal insecurity. These reasons moved at the greatest distance from the influence do not apply to frauds which circumspection may of private motives. But let this power be de- prevent; which must wait for opportunity; which posited where it will, the exercise of it ought to can proceed only to certain limits; and by the be regarded, not as a favour to be yielded to so-apprehension of which, although the business of licitation, granted to friendship, or, least of all, to life be incommoded, life itself is not made miserabe made subservient to the conciliating or gratify-ble. The appearance of this distinction has led ing of political attachments, but as a judicial act; some humane writers to express a wish, that as a deliberation to be conducted with the same capital punishments might be confined to crimes character of impartiality, with the same exact and of violence. diligent attention to the proper merits and circumstances of the case, as that which the judge upon the bench was expected to maintain and show in the trial of the prisoner's guilt. The questions, whether the prisoner be guilty, and whether, being guilty, he ought to be executed, are equally questions of public justice. The adjudication of the latter question is as much a function of magistracy, as the trial of the former. The public welfare is interested in both. The conviction of an offender should depend upon nothing but the proof of his guilt; nor the execution of the sentence upon any thing beside the quality and circumstances of his crime. It is necessary to the good order of society, and to the reputation and authority of government, that this be known and believed to be the case in each part of the proceeding. Which reflections show, that the admission of extrinsic or oblique considerations, in dispensing the power of pardon, is a crime, in the authors and advisers of such unmerited partiality, of the same nature with that of corruption in a judge.

In estimating the comparative malignancy of crimes of violence, regard is to be had, not only to the proper and intended mischief of the crime, but to the fright occasioned by the attack, to the general alarm excited by it in others, and to the consequences which may attend future attempts of the same kind. Thus, in affixing the punishment of burglary, or of breaking into dwelling-houses by night, we are to consider not only the peril to which the most valuable property is exposed by this crime, and which may be called the direct mischief of it, but the danger also of murder in case of resistance, or for the sake of preventing discovery; and the universal dread with which the silent and defenceless hours of rest and sleep must be disturbed, were attempts of this sort to become frequent; and which dread alone, even without the mischief which is the object of it, is not only a public evil, but almost of all evils the most insupportable. These circumstances place a difference between the breaking into a dwellinghouse by day, and by night; which difference obtains in the punishment of the offence by the law of Moses, and is probably to be found in the judicial codes of most countries, from the earliest

Aggravations, which ought to guide the magistrate in the selection of objects of condign | punishment, are principally these three,-repeti-ages to the present. tion, cruelty, combination. The first two, it is manifest, add to every reason upon which the justice or the necessity of rigorous measures can be founded; and with respect to the last circumstance, it may be observed, that when thieves and robbers are once collected into gangs, their violence becomes more formidable, the confederates more desperate, and the difficulty of defending the public against their depredations much greater, than in the case of solitary adventurers. Which several considerations compose a distinction that is properly adverted to, in deciding upon the fate of convicted malefactors.

In crimes, however, which are perpetrated by a multitude, or by a gang, it is proper to separate, in the punishment, the ringleader from his followers, the principal from his accomplices, and even the person who struck the blow, broke the lock, or first entered the house, from those who

Of frauds, or of injuries which are effected without force, the most noxious kinds are,— forgeries, counterfeiting or diminishing of the coin, and the stealing of letters in the course of their conveyance; inasmuch as these practices tend to deprive the public of accommodations, which not only improve the conveniencies of social life, but are essential to the prosperity, and even the existence, of commerce. Of these crimes it may be said, that although they seem to affect property alone, the mischief of their operation does not terminate there. For let it be supposed, that the remissness or lenity of the laws should, in any country, suffer offences of this sort to grow into such a frequency, as to render the use of money, the circulation of bills, or the public conveyance of letters, no longer safe or practicable; what would follow, but that every species of trade and of activity must decline under these dis

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we shall be brought, probably, to agree with the opinion of those who contend that perjury, in its punishment, especially that which is attempted in solemn evidence, and in the face of a court of justice, should be placed upon a level with the most flagitious frauds.

The obtaining of money by secret threats, whether we regard the difficulty with which the crime is traced out, the odious imputations to which it may lead, or the profligate conspiracies that are sometimes formed to carry it into execution, deserves to be reckoned amongst the worst species of robbery.

couragements; the sources of subsistence fail, by which the inhabitants of the country are supported; the country itself, where the intercourse of civil life was so endangered and defective, be deserted; and that, beside the distress and poverty which the loss of employment would produce to the industrious and valuable part of the existing community, a rapid depopulation must take place, each generation becoming less numerous than the last; till solitude and barrenness overspread the land; until a desolation similar to what obtains in many countries of Asia, which were once the most civilized and frequented parts of the world, succeed in the place of crowded cities, of cultivated The frequency of capital executions in this fields, of happy and well peopled regions-When country owes it necessity to three causes;-much therefore we carry forwards our views to the more liberty, great cities, and the want of a punishment distant, but not less certain consequences of these short of death, possessing a sufficient degree of crimes, we perceive that, though no living crea-terror. And if the taking away of the life of maleture be destroyed by them, yet human life is di- factors be more rare in other countries than in minished that an offence, the particular conse- ours, the reason will be found in some difference quence of which deprives only an individual of a in these articles. The liberties of a free people, small portion of his property, and which even in and still more the jealousy with which these liberits general tendency seems to do nothing more ties are watched, and by which they are preserved, than obstruct the enjoyment of certain public permit not those precautions and restraints, that conveniencies, may nevertheless, by its ultimate inspection, scrutiny, and control, which are exeffects, conclude in the laying waste of human ercised with success in arbitrary governments. existence. This observation will enable those For example, neither the spirit of the laws, nor who regard the divine rule of "life for life, and of the people, will suffer the detention or confineblood for blood," as the only authorized and jus- ment of suspected persons, without proofs of their tifiable measure of capital punishment, to perceive, guilt, which it is often impossible to obtain; nor will with respect to the effects and quality of the ac- they allow that masters of families be obliged to tions, a greater resemblance than they suppose to record and render up a description of the strangers exist between certain atrocious frauds, and those or inmates whom they entertain; nor that an accrimes which attack personal safety. count be demanded, at the pleasure of the magisIn the case of forgeries, there appears a sub-trate, of each man's time, employment, and means stantial difference between the forging of bills of of subsistence; nor securities to be required when exchange, or of securities which are circulated, these accounts appear unsatisfactory or dubious;^ and of which the circulation and currency are nor men to be apprehended upon the mere sugfound to serve and facilitate valuable purposes of gestion of idleness or vagrancy; nor to be concommerce; and the forging of bonds, leases, fined to certain districts; nor the inhabitants of mortgages, or of instruments which are not com- each district to be made responsible for one monly transferred from one hand to another; be- another's behaviour; nor passports to be exacted cause in the former case, credit is necessarily from all persons entering or leaving the kingdom: given to the signature; and without that credit the least of all will they tolerate the appearance of an negotiation of such property could not be carried armed force, or of military law; or suffer the streets on, nor the public utility, sought from it, be at- and public roads to be guarded and patrolled by tained in the other case, all possibility of deceit soldiers; or lastly, intrust the police with such dismight be precluded, by a direct communication cretionary powers, as may make sure of the guilty, between the parties, or by due care in the choice however they involve the innocent. These exof their agents, with little interruption to busi-pedients, although arbitrary and rigorous, are ness, and without destroying, or much encumber-many of them effectual: and in proportion as they ing, the uses for which these instruments are cal- render the commission or concealment of crimes culated. This distinction I apprehend to be not more difficult, they subtract from the necessity of only real, but precise enough to afford a line of severe punishment.-Great cities multiply crimes, division between forgeries, which as the law now by presenting easier opportunities, and more instands, are almost universally capital, and punishedcentives to libertinism, which in low life is comwith undistinguishing severity. monly the introductory stage to other enormities; Perjury is another crime, of the same class and by collecting thieves and robbers into the same magnitude. And, when we consider what re-neighbourhood, which enables them to form comliance is necessarily placed upon oaths; that all munications and confederacies, that increase their judicial decisions proceed upon testimony; that art and courage, as well as strength and wickedconsequently there is not a right that a man pos-ness; but principally by the refuge they afford to sesses, of which false witnesses may not deprive him; that reputation, property, and life itself, lie open to the attempts of perjury; that it may often be committed without a possibility of contradiction or discovery; that the success and prevalency of this vice tend to introduce the most grievous and fatal injustice into the administration of human affairs, or such a distrust of testimony as must create universal embarrassment and confusion-when we reflect upon these mischiefs,

villany, in the means of concealment, and of subsisting in secrecy, which crowded towns supply to men of every description. These temptations and facilities can only be counteracted by adding to the number of capital punishments.-But a third cause, which increases the frequency of capital executions, in England, is, a defect of the laws, in not being provided with any other punishment than that of death, sufficiently terrible to keep offenders in awe. Transportation, which is the

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