But this scheme, almost invariably found to have been adopted by nations in some early stage of their jurisprudence, and very nearly realized in the criminal law of England at a recent period, is liable to so many plain and unanswerable objections, that we need hardly enumerate them. The principal are, that no proportion is kept among crimes of different degrees of enormity, and an inducement is thus held out to commit the worse offences; that the feelings of mankind are apt to run against the punishment, and thus to be turned in favour of the offence; and that the frequent spectacle of blood tends of itself to harden the hearts, and corrupt the nature, of the people, thus fitting them for the worst of crimes. These considerations, which all men will admit, operate, in the extreme case, as we have been putting it, are found to operate, more or less, in the intermediate cases also. We shall now take the example of that offence which was of late principally discussed in Parliament,-the crime of forgery. We admit, in the outset, that none can more injure a commercial community; that none more destroys the confidence of society; that none more endangers large masses of property; that it is frightful to think of the mischiefs which it may occasion; that to commit it a man must have become so lost to all feelings of honour, to all regard for the welfare of others; and all respect for himself, as to have forfeited every claim to compassion. Nay, we will go a step farther, and allow that those who, in many cases, commit it, have made up their minds to quit their country, being in desperate circumstances, at any rate, and that the fear of a public and ignominious death might affect them, when the punishment of transportation may have for them lost its terrors. Still, and after all these concessions, the question recurs, can we rely on the capital infliction in this case,-opposed as it is to the generally, if not universally, prevalent feelings and opinions of the community? The question is plainly one of fact. The dislike of hanging for forgery is a fact; no one who is practised in the police or the law of the country ventures to deny that men, generally speaking, are averse to see life taken away for the crime of forgery; and all who are so practised admit that a rooted disinclination prevails in every quarter to aid in the enforcement of a law so adverse to the general feeling. First of all, those who are defrauded refuse to prosecute, because they may be the means of putting a fellow-creature to death. Next, witnesses give their testimony with reluctance, and are apt to strain a point in the prisoner's favour. Then many, who know facts material to the case, put a padlock upon their lips, for fear of being compelled to come forward; and those who are known, and therefore summoned, refuse to hold any previous communication with the agents for the prosecution, which makes it unsafe to call them. Again, the jury are disinclined to convict, and try every means of acquitting. Lastly, the sentence is passed, but only executed in a small proportion of cases. Now all these chances of escape are known to evil-doers; they are aware that the letter of the law says they shall suffer death if they forge; but they know that, though the letter may kill, the practice gives them many chances of escape; and that even if convicted, they incur not a certainty, but only a risk of about one in eight or nine, of suffering death. All this uncertainty defeats entirely the object of the enactment. It makes the law any thing rather than dreadful. It leaves men to speculate on probabilities, and calculate the chances.

How much more efficacious would a penalty of a lower nature be which was nearly certain to be always enforced. It is plain, that if any pu

nishment, however inconsiderable, were absolutely certain to follow the offence, its commission would be infallibly prevented in almost every case. If it was clear, for instance, that a thief, within four-and twenty hours of committing the offence, would be obliged to restore the stolen property, and suffer one day's imprisonment, theft would be abolished in all cases but those of something like mental alienation: and so of other crimes—all motive to commit them would be at an end. But this certainty involves three things-that the culprit shall be detected-that, when caught, he shall be convicted-and that, when convicted, he shall suffer a fixed inevitable penalty. The legislator has considerable power over all these three ingredients of penal certainty, but not, by any means, equal power. The first is the least within his control; the last is the most subject to him. Whatever tends to improve criminal police, undoubtedly increases the chance of detection; but much also depends upon the co-operation of individuals; for let the police be ever so perfect, if a party injured neglects to complain and furnish the clew to investigation, the culprit must escape. So of the second ingredient of certainty-the chance of conviction. The more accurate the rules are of judicial procedure, and the better the hand in which the administration of justice is placed, the less chance will there be both of innocence being condemned and of guilt escaping. But whatever excellence the system of jurisprudence may have attained, and in what hands soever its powers are vested, if parties injured, witnesses, or the public functionaries themselves, have an indisposition to call down upon the head of the accused the punishment denounced by the law, the guilty must oftentimes escape. The third ingredient,-the certainty of a convicted person suffering the penalty awarded,-can only be frustrated by gross misconduct in the tribunals; unless, indeed, we can suppose a case so absurd, so contrary to all rational principle, as the criminal code denouncing punishments without intending that they should be inflicted.

Let us see how these ingredients of certainty are affected by the punishment in any case being incommensurate to the offence, or supposed, by the prevailing opinions of men, to be so; in a word, by the public voice being very decidedly against the enactments of the law. Manifestly, this unfortunate circumstance will affect every one of the three. Parties will not denounce the guilty, nor help the pursuit, nor in any way aid the public functionaries. Witnesses will be loath to come forward; judges and jurors will be slow to convict; or, which comes to the same thing, they will be astute to find difficulties, and espy imperfections in the evidence. Lastly, when the conviction has taken place, the tendency will be to prevent the sentence from being executed, by straining the law, so as to let the party escape, or by obtaining a pardon for the offence. To these sources of uncertainty must be added one, the worst of all, because at once the most copious, constant, and unreasonable, not to say ridiculous,-the idea, of late years so much inculcated, that the law is, in many cases, meant only as a denouncement, and not to be actually executed; something like burning men in effigy, or firing over their heads, in order to alarm and not to hurt them.

It is quite certain that the capital punishment of forgery sins in all these ways, by lowering every one of the three ingredients of certainty. Men's minds are set against it. This was natural and inevitable, independent of any accidental circumstances; but the conduct of the Bank of England in its

prosecutions greatly increased the unpopularity of the law; and it is undeniable, that in a large class of the community, and especially the mercantile portion of it, religious views and moral feelings mixed themselves, so as to make the repugnance altogether invincible. The consequences have been fatal to the efficacy of the law. Men have suffered losses to a large amount, and repeatedly, without complaining, because they knew that their complaint was the death-warrant, and might be such, of a fellow-creature. Others who could give evidence kept their lips sealed, for fear of being called upon as witnesses, should it be known that they possessed any criminatory information. Jurors have again and again refused to convict upon the clearest proof. But more absurd than all,―more discreditable to the law, and more fatal to every thing like certainty,—it has come to be an understood thing, that though the statutes say forgery shall be punished with death they mean no such thing,-that their sense rather is, forgery shall not be punished with death; at least, that in eight cases in nine the sentence of death, shall be pronounced, and another punishment, not mentioned either in the law or the sentence, shall be executed by a kind of compromise or bargain with the offender. Now, as no man can tell, while the law remains in this state, whether, in any given case, the sentence really shall be executed or not, parties, witnesses, and jurors are left in doubt, and act from apprehension of the punishment being inflicted; while to the mind of the criminal, in the act of resolving upon doing the crime, nothing is presented but a confused picture of crime, chances of escaping detection, and escaping conviction, ending in an avowed lottery of eight prizes to one blank, supposing detection and conviction both to have taken place.

It is sometimes said, that men do not feel the influence of such calculations in the moment when deliberating upon the commission of crimes. Nothing can be more unfounded than this remark, and nothing more absurd in the mouths of penal legislators. Men do certainly speculate upon the chances of escape and conviction, with a leaning, no doubt, to take the sanguíne view. But, at all events, they acquire a habit of regarding criminal acts as more or less perilous, according as the chances of suffering are greater or less. This habit it is, formed in cooler moments upon each man's observation and reflection, and upon communication with others, that mainly operates to deter from crimes. If it has become notorious, and almost proverbial, that forgery has more chances of escape than most other grave offences, assuredly its commission will be more frequent. But suppose we are wrong, both as to the fact of wrong-doers weighing probabilities of escape on the eve of doing the act, and as to the way in which habits of regarding the act are formed, still, we ask, can any thing be more absurd than for the legislator to hold that men are not influenced by such considerations? What else justifies penal infliction? What other ground has the lawgiver for punishing at all, but the hope that example will deter from commission of the offence once punished? It is precisely to the mind of the wrong-doer, and on the assumption that he weighs chances and reflects upon risks, that the law professedly appeals. If example can deter, it is either by striking the mind at the moment of deliberation prior to offending, or by forming the opinion, and giving the habitual impression, that to of fend is full of danger.

If the chances of escaping death, after conviction for forgery, are eight or *Popularity is the term employed by Mr. Bentham to denote the punishment being adapted to the feelings of mankind.

nine to one, little or no benefit, we may be well assured, can result from the idle denouncement, in deterring the offender, who will think nothing of so remote a risk, and will be led away by his passions. But if no good, in deterring offenders, be done by the severity of the legal enactment, so rarely put in force, there is a clear balance of mischief produced by it; because the chances of detection and of conviction are exceedingly diminished by the severity of the same enactment. Therefore it is clearly against all sound policy to preserve it in name, while it is not really in force. The only use of its great severity is gone, and the same severity counteracts the design of the law.

There can be no doubt that such considerations as these had long prevailed among thinking men, and induced them to regret the punishment of death for the crime of forgery. Mingled with these views of expediency, however, there were others belonging to the first class of objections, which we have already discussed; and it was, for some time, believed that no practical men held the opinion adverse to the capital penalty. It is true, that the most glaring instances were continually recurring of malefactors, who deserved the highest punishment, escaping altogether. Men were every day seen submitting to be plundered by forgers rather than prosecute; others were observed to favour, in all ways, the escape of the worst criminals, by suppressing evidence, and even by giving in verdicts of acquittal, when evidence was adduced that sufficed to prove guiltiness. Still it was thought that those in trade, whose interests were principally concerned in the question, more especially persons engaged in the business of banking, were against any alteration of the law, and felt satisfied with the protection afforded them by the capital enactment. The memorable Petition of the Country Bankers put an end, at once and for ever, to this imagination. That petition is a most important fact in the case,—a fact, indeed, from which there can be no appeal. Nine hundred persons, many of them representing firms engaged in the business of banking, approached the Parliament with a serious complaint of the inefficacy of the law, as it now stands and is now administered, to afford them the protection in their business which they deem their right; and the ground of their complaint is, that the punishment of death being denounced against the crime of forgery, almost ensures the escape of the offenders in so many instances, that the crime is not adequately prevented. To this statement there was no answer. To the prayer of the interested party there could be no refusal connected with the principle on which the punishment was pretended to be enacted; for it was said to be decreed in order to protect those bankers, and they complained of the measure intended to protect them, and entreated the Legislature to give them any other kind of protection, stating, that this injured instead of succouring them. No man could charge these petitioners with being speculators, or visionary and theoretical reasoners. They were plain, practical men of business, speaking of their interests in a mercantile point of view. It was not their feelings that were excited; it was not any notion of capital punishments being unlawful that had got possession of them. They spoke merely from their experience as bankers, peculiarly interested in putting down the crime of forgery by all means, because that crime was more pernicious to them than to any other class of the community; and, telling the plain tale, that they had found the punishment of death increase forgery instead of diminishing it, they entreated the Parliament to protect them by altering the penal enact

ment.

It is not surprising that such striking facts as these, coupled with all the other considerations to which we have adverted, should have produced their due effect in the discussion of the question raised by Sir R. Peel's bill, which very unexpectedly left nearly the whole class of forgers subject to capital punishment. The point was debated with all the fulness and deliberation which its extreme importance demanded; and at length, by a considerable majority, the cause of sound principles triumphed; the capital penalty was thrown out of the bill in all the cases of importance, especially in that of bills and notes, being really the whole question.

It is painful to be compelled to state the part which the late Ministry deemed it not unworthy of them to act upon this occasion. There was no want of assertion, nay of asseveration, that the question was not made a ministerial one; but there was also no want, of summonses to ministerial members in the accustomed manner, and no want of all those means usually employed to enforce attendance on questions supposed most interesting to the Government of the day. In truth, great exertions were making by all the underlings to obtain a victory, at the very moment when the Ministers were declaring, and, we doubt not, conscientiously declaring, that the question was not a Government question. And we have been apprised of the names of some converts to the Treasury, who, with the proverbial zeal of all disciples, were to be seen hurrying towards their places on the Government side, and were to be heard assigning as a reason for their haste, that the Ministers were expected to be pressed!" All this management-all this base zeal-this prava diligentia-happily failed, and truth prevailed.

The more pleasing task remains of commemorating the pious labours of those whose active exertions helped to win the day. First, as a matter of course, the amiable and persevering zeal of the Society of Friends was every where conspicuous; insomuch, that an argument was derived from it against the measure. "These petitions," it was said, "are got up by the Quakers. Mr. Allen and Mr. Barry are agitating the country and procuring petitions." Nothing more silly and thoughtless, we will venture to assert, was ever suggested to explain away a troublesome fact or an ominous appearance. What kind of a cause is that which can obtain nine hundred petitions in its behalf as soon as a few Quakers think proper to call for them? What sort of law must that be, the repeal of which is loudly demanded by so many respectable men, at the resquest of William Allen and J. F. Barry? But what measure is it which nearly a thousand bankers sign their names to recommend-ay, and to recommend against the known wishes of the government, and in abrogation of the existing law of the land, merely because a committee of London Quakers desire it? Are bankers, of all men, so very careless of signatures,-so indifferent to the act of signing their names, that the moment any one shows them a petition to Parliament, down go their names to it? But again-what petitions were there on the opposite side of the question? If it was all zeal and contrivance that procured the Bankers' Petition to be relieved from the pressure of the law for the encouragement of forgery, as they deemed it, where were the petitions of the other bankers, who were friendly to the existing law, and deemed their property safe under its protection? These petitions were not to be found; and this fact speaks volumes in favour of our opinion, and in refutation of the vain cry attempted to be raised against the petition presented.

The triumph that had been gained, and which so gladdened the hearts of the wise and the good all over the country, was, we grieve to say,