more, (as in our case), when our acquaintance with one of them is so imperfect.

Among many instances that might be given, I shall mention but one, of this fancied excellence of the law of England being in a great measure a delusion, which has sprung from the looking to only one rule in the criminal process, without attending to the others. What I allude to, is the complaint which we often hear, of the want of our peremptory challenge of the jurors.

Some observations follow upon this subject.

Another topic, on which also it is not uncommon to hear encomiums passed at our own expense, is the greater humanity of the English practice, which requires the unanimity of the twelve jurors in their verdict.

There are some observations upon this subject.

These observations respect the comparison of our criminal law with that of England, in the important matter of the form of trial; and as far as concerns the security of innocence, it does not appear that there is any disadvantage on our side.

I think it may also be doubted whether the complaint is better founded respecting that part of our system, which lodges the power of prosecution with a public officer, the Lord Advocate; by whom it is exercised according to his own judgment and discretion. For what are the evils which have been found in practice to attend this plan of accusation? Or is it not rather certain, that to this very course of proceeding, which places the entire responsibility for all prosecutions with one individual of high rank and reputation, (who, therefore, on his account will be cautious and reserved in the exercise of his own powers), we owe the singular and constant moderation which has prevailed, time out of mind, in the administration of this part of public justice. Certainly, it cannot be disputed, that by this contrivance, the prosecutor is most effectually removed from the contagion of that popular pre

judice, either for or against the accused, which is apt to arise in any case of an extraordinary or interesting nature. And with respect to the risk of the influence of the crown; it is true, that in an arbitrary government, where the whole frame and order of things tends to make the favour of the Sovereign the chief object of regard, and the sole means of preferment, such an institution might be made an engine of injustice. But there is no inference from thence to the situation of things in this country; where such is the care of freedom, the love of justice, and such the high influence of the popular part of the constitution, that any person holding the office of Lord Advocate who should strain his powers, or pervert them to oppressive purposes, would injure alike his own reputation and fortune, and the services of the Crown. And as, on the one hand, the inhabitants of Scotland have nothing to fear, and in truth have never suffered, (since the revolution at least), from the privileges of this office; so, on the other it is impossible to deny the high and extensive benefits which attend it, in maintaining the police of the country, and securing the prosecution of every criminal whose case requires it, without any trouble, or a shilling even of expense to the party injured. In that respect the rule of the English system, which in ordinary cases commits the prosecution only to that party, and lays on him the whole care and expense of obtaining a conviction, seems at least, (and, if I have not been misinformed, this is felt and complained of in their practice), to be less advantageously contrived for repressing the growth of crimes.

In regard to another important point, the determining of the proper punishment of a crime when proved. I know some have imagined that the law of England, which fixes the matter by the precise letter of a statute, is preferable to ours, which in a great number of instances, leaves it to the discretion of the judge. Yet it is to this part of our system, that we are perhaps chiefly indebted for the gentleness of our punishments; which, compared with those used for the same offences by other nations, is, generally speaking, most eminent; but which, nevertheless, we have

hitherto found sufficient to maintain a greater degree of good order and peace, than exists in any other country so far advanced as this in the arts and refinements of life, and consequently so much exposed to the vices which attend them.

That our law is more rigorous than that of England in regard to certain articles, where, unhappily, there has of late been so much occasion to compare the two; this I feel as little inclination as power to dispute. Our ancient statutes animadverted with severity on those offences, which the factious and unruly temper of the inhabitants of this country made it indispensable to repress. And although it might have been expected, that in so long a period of increasing prosperity, and of mild and equitable government, as has elapsed since the latest of these laws, this vice of our disposition might in some measure have been corrected; yet have we, in the events of our own day, seen too much reason to commend in this particular the wisdom of our legislature, and to be thankful for the powers which they have bestowed upon our

courts.

But explain this instance any way, it never will decide the question as to the general temper of our law; of which if any one wishes to form a just- opinion, let him attend to the inconsiderable number of lives which fall a forfeit to its rules. I am certain that I am within the truth, when I mention, that on an average of thirty years preceding the year 1797, the executions for all Scotland have not exceeded six in a year. For a period of fifteen years, preceding the 1st May 1782, the number of persons who suffered death at Edinburgh, (where by far the greater number of capital trials take place), amounted only to twentythree; that is, in every two years only three persons suffered death. And as to the inferior punishments, I have it from good authority, that one quarter sessions for the single town of Manchester, have sent more felons to the plantations than all the Scotch judges do for ordinary in a twelvemonth. Near thirty years ago, when Judge Blackstone first published his commen

taries, that author remarked, and expressed his regret, that there were then no fewer than one hundred and sixty offences, which had been declared by act of parliament to be felonies without benefit of clergy. At the largest allowance, and taking in all that are provided for at common law, as well as by statute, (of which last a great proportion have long been completely obsolete,) our list of capital crimes does not amount to more than a fourth part of that number. Such is the law, which, by ill informed persons, is reproached as sanguinary and tyrannical in comparison of others; and such the means, by which upwards of a million and a half of people are secured in the enjoyment of all the benefits of the most improved society.

I repeat it, therefore, without fear of contradiction, that generally speaking, and with a view to the ordinary course of vulgar practice, (for by this the question must be decided), our custom of punishment is eminently gentle; and would be ill exchanged, for the offenders at least, and indeed I think for the country at large, against a numerous list of special and statutory rules. For plain it is, that if ever we come to establish any such positive code, the punishments must needs be stated high; because the judge could in no case go beyond them, and not only the young, ⚫ but the more experienced offender must be corrected. Whereas, by our custom, as it now is, that object is fully accomplished; and strict regard is at the same time paid, (which, wherever it is practicable, is surely desirable) to the peculiar and equitable circumstance of each case, as it occurs. Take, for instance, the crime of theft. If a statute were now to be passed, fixing the pains of the several degrees of that offence; is it to be doubted that the stealing of a horse, or an ox, or of goods to the value of ten pounds, or even of five pounds, must be rated in the scale as a capital crime; and the judge be necessitated to pass sentence of death upon every one who shall be convicted to that extent. But, owing to the discretion which in this respect has been reposed with our judges, how frequently does it happen, that, by reason of youth, or weakness of intellect, or because instigated by some

old transgressor, or for other the like favourable circumstances in the case, offenders of this degree escape with some inferior correction? Thus, though at first sight it may seem paradoxical to allege, that there is any advantage in having the punishment of crimes discretionary; yet certain it is, that the operation of this • state of things, in our practice, has not been against the pannel, but highly in his favour.

And here, let me observe, that to this very excellence (so much extolled), of the definite pains of all crimes in England, is owing the infinite number of pardons, and commutations of punishment, which are there found indispensable to the administration of criminal justice; and which, compared with those that occur in our practice, are in the proportion of at least ten to one. A difference, which, considered in any point of view, and especially with respect to its influence in the important article of the prevention of crimes, certainly will not be thought to be to our disadvantage.

Another point in which the custom of the two countries remarkably differs, is with respect to the punishment of new crimes or modes of transgression. It seems to be held in England that no court has power to take cognizance of any new offence, although highly pernicious, and approaching very nearly to others which have been prohibited, until some statute has declared it to be a crime, and assigned a punishment. With us the maxim is directly the reverse, that the supreme criminal court have an inherent power as such, competently to punish, (with the exception of life and limb), every act which is obviously of a criminal nature; though it be such which in time past has never been the subject of prosecution. And certainly this course is at least attended with two advantages. To the public it is thus far beneficial, that the evil is repressed in its beginnings, and more effectually than it ever can be by any statute. Because all statutes are liable to be partial and defective in their description of new offences, and thus the transgressor finds the means of eluding the