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Note 82, p. 129.

of rage

You have often sympathized with the generous indignation of Dr. Johnson where he describes the situation of Warburton, when chased and teased by an ignoble foe. “I remember,” says he," the prodigy in Macbeth:

An eagle tow'ring in his pride of place,

Was by a mousing owl hawk'd at and kill'd." It was the lot of Mr. Fox to meet with an assailant who united all the mischievous qualities which Johnson in his preface to Shakspeare imputes to the two antagonists of Warburton. In a moment of petulance “ he would sting like a fly, suck a little blood, take a gay flutter, and return no more.” But in seasons

“ he would bite like a viper, and would have been glad to leave inflammation and gangrene behind him.” Never can the well-wishers of Mr. Fox forget the treatment which he experienced from the opponent to whom I advert, when enfeebled by disease and harassed by care he attended the business of the House of Conimons in the Session before his death. The strength of that opponent bore, indeed, little proportion to his malignity. But his noisy, restless, querulous, insolent freaks of hostility must often have brought to your mind the odious office which a poet of antiquity has assigned to one of the Diræ; and often has he provoked me, with a slight alteration of Virgil's language, to exclaim, " Alitis harum una in parvæ

collecta figuram,
Quæ deserta fori circum subsellia quondam
Importuna canit, Turni se pestis ob ora
Fertque refertque sonans, clypeumque everberat alis."*

* Æneid, xii.


Note A. p. 233.

In the history of our own country, we read of a strange custom which formerly prevailed at Halifax. “If the felon were found within the liberty, with goods stolen out or within the liberty or precincts of the same forest, either hand-habend, backberand, or confessard, any commodity of the value of thirteen pence halfpenny, he, if convicted on Saturday, the great market day, was to be immediately taken to the gibbet, and there to have his head severed from his body; and, if convicted on any other day, he was to suffer on the third market day after his conviction."

“ Nec vero his sine sorte datæ sine Judice sedes." “ The felon was to be brought before the Lord's bailiff, who issued out his summons to the constables of four towns within the above precincts, to require four Frith Burghers from each, to appear on a certain day, and examine the charge.” But be it observed, that when they tried and convicted they were not put upon their oath. They performed all the arduous and perilous duties of jurymen, without subjecting themselves at the time to that sanction which supplies the peculiar and most proper name for the office. In England, as in Carinthia, this summary sort of justice seems to have suggested some doubts; and in England, as in Carinthia, a remedy, if it deserves the name, was provided. In Carinthia,* the guilt of the accused person was again examined; and, if it was disproved, he was honoured with the rites of burial. At Halifax, after every execution, the Coroners of the county, or some part of them, were obliged to repair to that town, and there to summon a jury of twelve persons before them, and sometimes the same persons who had condemned

* Vide supra, p. 233.

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 extrenie 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

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