at the discretion of the court, to be transported beyond the seas for seven years, or to be imprisoned not exceeding two years, and if a male, to be once, twice, or thrice publicly or privately whipped, if the court shall so think fit, in addition.

Compared with the former statutes, these modern enactments display a mild spirit. But that so much should be left to the discretion of the court, may be a subject of regret; as offenders will be liable sometimes to be punished too severely, and sometimes to escape without adequate suffering. (a) Still, whoever considers the infinite shades of criminality, arising from difference of age, character, education, circumstances of temptation, and from a thousand other causes, which tend to aggravate or to lessen guilt, must be sensible that the task would be endless, to prescribe an exact scale of punishment for every offence, and therefore much must be left to the discretion of the judge.

In fixing the limits, however, regard should be had to the punishment which would be due to an incorrigible offender for the commission of the offence under the most aggravated circumstances. But rarely ought a judge to go to this limit; since it is undoubtedly a wise and just maxim of Lord Bacon, 'that it is the extremity of evil, when mercy has no commerce with misery.'

(a) Sir Samuel Romilly, in a speech in the house of Commons at another time, (May, 1810) on an act which was introduced by him, to repeal and modify the law relative to the punishment of larcenies from dwellings, in shops and on navigable rivers; relates the following case, to show the uncertain administration of the criminal justice, in relation to punishment.

'Not many years ago, upon the Norfolk circuit, a larceny was committed by two men in a poultry yard, but only one of them was apprehended; the other having escaped into a distant part of the country, had eluded all pursuit. At the next assizes, the apprehended thief was tried and convicted; but Lord Loughborough, before whom he was tried, thinking the offence a very slight one, sentenced him only to a few months imprisonment. The news of this sentence having reached the accomplice in his retreat, he immediately surrendered himself to take his trial at the next assizes. The next assizes came; but, unfortunately for the prisoner, it was a different judge who presided; and still more unfortunately, Mr. Justice Gould, who happened to be the judge, though of a very mild and indulgent disposition, had observed, or thought he had observed, that men who set out with stealing fowls, generally end by committing the most atrocious crimes; and building a sort of system upon this observation, had made it a rule to punish this offence with very great severity, and he accordingly to the great astonishment of the unhappy man, sentenced him to be transported. While one was taking his departure for Botany Bay, the term of the other's imprisonment had expired; and what must have been the notions which that little public, who witnessed and compared these two examples, formed of our system of criminal jurisprudence? ' 2 Montagu on Punishment of Death. 212.

By the 56 Geo. III. c. 138, the punishment of the pillory was abolished, and fine and imprisonment substituted in its place. (a) Misdemeanors have always been punishable by fine and imprisonment, to which is now added solitary imprisonment and confinement to hard labor in the house of correction. By the 3 Geo. IV. c. 114, even some misdemeanors of a highly aggravated character, as perjury and subornation of perjury, are punished in like manner. There is, we think, peculiar propriety in the punishment of hard labor, combined. with solitary confinement and prohibition of conversation and all social intercourse. Those who commit crimes justly forfeit their liberty; and as most crimes proceed from idleness, confinement to hard labor operates as a punishment to the offender, and tends, in some degree, to enable him to make amends to society for his ill conduct. Experience has not hitherto warranted the expectation of reformation from punishment of any kind. Rarely are even the young brought to the bar of public justice, till they have lost the blush of shame. as well as the love of honesty. Often have we noticed in offenders, what seemed to resemble that 'judicial hardness of heart,' as it is styled by theologians, which is steeled against all moral influences, and would require a miraculous exertion of divine power before it would change its character. But still we approve of every thing which religion and humanity can do, to rescue these unhappy beings from present and future perdition. For no good deed is without fruit to the benevolent actor, though it may not produce its desired effect on the

(a) Excessive and vindictive punishments have always been odious to the British nation. The cruel sentence pronounced upon Titus Oates, bad as he was, and manifestly bearing the guilt of perjury, tended to bring the punishment of the pillory into disuse. He was sentenced to be stripped of his priestly habit, to be a prisoner for life, to be set on the pillory in four public places of the city, and during life to be set on the pillory four times a year, and to be whipt by the common hangman from Aldgate to New Gate one day, and the next from New Gate to Tyburn, which was executed upon him with great rigor. Bishop Burnet says, that this was thought too little if he was guilty, and too much if innocent. The L. C. J. Jeffries, when he pronounced the judgment upon him, said to him, I must tell you plainly, if it had been in my power to carry it further, I should not have been unwilling to have given judgment of death upon you; for, I am sure, you deserve it.' The severity of the punishment and the odium which rested upon the court for other causes, undoubtedly led to the proceedings for the reversal of the judgment against him, and to his pardon, at the revolution of 1688. He was considered so much of a sufferer in the cause of protestantism and liberty, that a small part of his pension was restored to him. He had the fortune, too, to outlive his cruel judge, Jeffries, and others of his enemies. 10 State Trials, Howell's ed. 1317.

VOL. IV.NO. VII.

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mind of him for whom it was intended. The great field for planting the seeds of morality and religion, to which government and all good citizens should direct their efforts, is the education of youth,—that they may learn the happiness and security of virtue, before they have begun to taste the poisoned pleasures of vice.

The defects in the law relating to accessories have been supplied by 7 Geo. IV. c. 64. At the common law, an accessory to a felony could not be tried, unless the principal had been attainted either by judgment of conviction, or by process of law, so that if the principal stood mute of malice, or challenged peremptorily above the legal number of jurors, or refused to answer directly to the charge, the accessory could not be put upon his trial. Hence it followed, that the accessory, who frequently is the leader, contriver, and real principal in the villainy, was permitted to bid defiance to the public justice, merely because the instrument employed by him could not be prevailed upon to deny the charge, and put himself upon a legal trial.' Foster, 363. To compel him to plead, he was liable, upon his obstinate refusal, to be pressed to death; and the history of the English law contains instances of individuals, who have submitted to this cruel alternative. (a) We presume, that one inducement to this course might have been to save the forfeiture of their goods and estate, which was one of the consequences of a conviction for felony. So also, if the principal died before attainder, or were admitted to the benefit of clergy, or received a pardon, and duly pleaded such. pardon, the attainder was barred, and the accessory would escape. These defects were partly remedied by the statute of 1 Queen Anne, c. 9, the provisions of which are included in the above act of 7 Geo. IV. c. 64. And now, if any person shall counsel, procure, or command another to commit a felony, whether the same be at common law, or by statute, he is deemed guilty of felony, and may be indicted and convicted, either as an accessory before the fact to the principal felony, together with the principal felon, or after his conviction, or he may be indicted and convicted of a substantive felony, whether the principal has been previously convicted or not.

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(a) Several cases of this kind, which occurred during the protectorate of Oliver Cromwell, are mentioned in Whitelock's Memorials.' The law was never administered, in England, perhaps, with more vigor, than during the period of that usurper. This punishment of the peine forte et dure, as it was styled, was not abolished till the 12 Geo. III. c. 20.

The following is the only provision which we find in the revised statutes of the state of New York on this subject an accessory before or after the fact, may be indicted, tried, convicted, and punished, notwithstanding the principal felon may have been pardoned, or otherwise discharged, after his conviction.' 2 R. S. 727. But in Massachusetts, a person charged as an accessory in a capital felony, cannot be put on trial, without his consent, until the principal has been convicted. This point was settled by the Supreme Judicial Court, in the case of James Phillips, in Middlesex, 1820. He was indicted as an accessory before the fact, to a burglary, in the case of the murder of Mr. Gould, of Stoneham. 16 Mass. R. 423. Daniels, the principal, destroyed himself in prison before trial, and so the accessory escaped. Our law is therefore defective in this respect, as the accessory is often more guilty than the principal, by putting into his hands the instrument and supplying the means for effecting the evil purpose. Where a person receives stolen goods, knowing the same to have been stolen, he may, by the act of 1804, c. 143, s. 11, be prosecuted therefor, as for a misdemeanor, although the principal shall not have been prosecuted. We have known instances under this act, where the principal has been used as a witness to convict the receiver, and this is the practice in England. But the whole amendment of the common law on this subject, in the British statute, may, we think, be properly introduced into our own code.

The offence of bigamy is declared, by the 9 Geo. IV. to be, if any person being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England or elsewhere. And the offender may be tried and prosecuted for the felony in the county where he shall be apprehended, or be in custody, as if the offence had been there committed. This provision is similar to the law of Massachusetts of 1784, c. 40. But prior to the act of 9 Geo. IV. if the second marriage took place out of the jurisdiction of the law of England, it was not punishable under that law.

The whole statute law relating to the offence of cheating, whether by false pretence or by privy tokens, is now contained in the 7 and 8 Geo. IV. c. 29, which repeals the former act of 33 Hen. VIII. c. 1, denominated the privy token act, and portions of the 30 Geo. II. c. 24, and of 52 Geo. III. c. 64. Cheating at common law is confined to the fraudulent obtaining

the property of another by any deceitful and illegal practice or token, (short of felony,) which affects the public, 2 E. P. C. 118, as cheating by means of false weights. This new enactment is nearly the same as the old, but by a proviso which is contained in the 53d section, an alteration is introduced into the law, which was wanted. It declares, that whereas a failure of justice frequently arises from the subtle distinction between larceny and fraud, if any person shall by any false pretence, obtain from any other person, any chattel, money, &c. with intent to defraud any person of the same, every such offender shall be guilty of a misdemeanor and punished as there directed: provided, that if upon trial of any person for such misdemeanor, it shall be proved, that he obtained the property in any such manner as to amount to larceny, he shall not for that reason be acquitted of the misdemeanor, nor shall he afterwards be liable for larceny upon the same facts. Those who have attended to the subject have sometimes found the great difficulty of deciding in a given case, whether it was a fraud or a larceny; and it is undoubtedly true, that sometimes this offence is committed under such circumstances, that an indictment in either form, for felony or for fraud, would be sustained in law. The wisdom of the proviso in the English statute is, therefore, apparent, and it is to be wished, that it should be introduced into our own system.

Not only are gaming houses considered as common nuisances, but so also are the mischievous and unlawful games called lotteries; and this has been the law of England since the 10 & 11 W. III. c. 37. Some have entertained a doubt as to the right of the legislature to prohibit lotteries and the sale of lottery tickets, as a restraint on trade, regarding the former as a species of traffic, and the latter in nature of negotiable notes of hand, transferable by delivery. But a lottery is a game of hazard, in which money or merchandise, and sometimes land, are deposited as prizes for the holders of the fortunate tickets. Whether an adventurer shall gain or lose, depends not on any certain calculations, but on chances. Experience proves, that all gaming is unfriendly to industry. Lotteries in particular are found to draw off the minds of adventurers from a relish for labor and its pure rewards, by exciting extravagant hopes of gain, which are rarely realized. Nor is this excitement confined to the poor, and those who can ill afford to apply their money to the purchase of tickets. Like the spirit of all