upon, he has great reason to hope, from an intimation made from the bench, by his Grace the Duke of Atholl, the chancellor and governor-in-chief, relative to a melioration of the penal laws of the island: for to shew that such an improvement is imperious, it will be sufficient, after what has been said respecting the paucity and imperfection of the penal code, to refer to a clause in the act of Tynwald, passed in the year 1736, by which it is enacted, "That no court, judge, or magistrate, shall impose any fine or punishment upon any person, on account of any criminal cause, unless he be first convicted by the verdict or presentment of four, six, or more men, as the case shall require, upon some statute law in force; nor shall imprison any person arbitrarily, before a proper complaint is made and lodged, and an affidavit made to the truth thereof. Provided that courts of justice, and magistrates doing the duty of their offices, shall have and continue the power of committing and fining any person or persons for contemptuous behaviour, insulting or abusing them, or any of them, in the execution of their duty, according as the nature of the offence shall demerit."

It would appear that this restraining act (like the Lex Portia of the Romans*), amounting to a virtual abrogation of the breast, or common penal law, which had previously invested

*After the expulsion of the Decemvirs, all their penal laws were, in fact, abrogated; they were not, it is true, repealed in form, but the Lex Portia, by which it was ordained that no Roman citizen should be beaten or put to death, rendered them entirely useless.-Livy.

in the judges of the isle, through a long succession of ages, a large, if not unlimited discretionary power, had for its primary object, the abridging of such an indefinite authority, as might be deemed dangerous in its consequences, and repugnant to the best interests of municipal liberty. On this solemn subject, the learned judge, before quoted, humanely and religiously observes, that "criminal law should be founded upon principles that are permanent, uniform, and universal, and always conformable to the dictates of truth and justice, the feelings of humanity, and the indelible rights of mankind; though it sometimes (provided there be no transgression of these eternal boundaries) may be modified, narrowed, or enlarged, according to the local or occasional necessities of the state which it is meant to govern."

That to shed the blood of our fellow-creature is a matter that requires the greatest deliberation, and the fullest conviction of our own authority; for life is the immediate gift of God to man, which neither he can resign, nor can it be taken from him, unless by the command or permission of him who gave it, either expressly revealed or collected from the laws of nature or society, by clear and indisputable demonstration. And when a question arises, whether death may be lawfully inflicted, the wisdom of the laws must decide it; the guilt of blood, if any, must lie at their doors, who misinterpret the extent of their warrant."

By the law of England, unless a statute most clearly and expressly subjects the culprit to the

penalty, by a plain and distinct designation of the crime and its consequences, the judges will not award the sentence *. And by the law of Scotland, where the punishment is left by law to the discretion of the judge, he can in no case extend it to death; for, where the law intends to punish capitally, it says so in express words, and leaves no liberty to the judge to modify. With such luminaries before their eyes, the learned and humane judges in the island of the present day would have found it impossible to shed the blood of man, even for the commission of the heinous crime alluded to, by the following wild and uncivilized ordinance, viz.

"If any man take a woman by constraint, or force her against her will, if she be a wife, he must suffer the law for her. If she be a maid, or single woman, the deemster shall give her a rope, a sword, and a ring; and she shall have her choice, to hang with the rope, cut off his head with the sword, or marry him with the ring."

The great Lord Bacon, with that lucid wisdom which characterizes all his writings, says, in his Tract upon Universal Justice, that "a law may be held good that is certain in the intimation, just in the precept, profitable in the execution, consonant to the form of government, and generating virtue in the community. Certainty is so essential to a law, as without it a law cannot be just, si enim incertam vocem det tuba, quis se parabit ad bellum.' A law then ought to give warning before it strike;

6

* Bacon's Law Tracts, p. 75.

+ Erskine's Institutes.

and it is a good rule, that it is the best law which gives least liberty to the arbitrage of the judge. It is a hard case to torture laws, that they may torture men.” We are also informed

by another noble author*, that it is better to prevent crimes, than to punish them. This is the fundamental principle of good legislation, which is the art of conducting men to the maximum of happiness, and to the minimum of misery. Would you prevent crimes,-let the laws be clear and simple; -let the laws be feared, and the laws only.

The punishment of a crime cannot be just, if the laws have not endeavoured to prevent the crime, by the best means which the times and circumstances would allow. And as crimes are only to be estimated by the injury done to society, to constitute the justice of the punishment, it should have only that degree of severity which is sufficient to deter others: for the excessive severity of laws hinders their executiont.

With respect to the duties of a magistrate, Cicero says, that "they must be exercised with resolution, and with a severity that is above all partiality; to which must be added, affability in hearing, deliberation in examining, and accuracy in explaining and enforcing his opinion or judgment." A man of such enlightened understanding, appointed guardian of good laws, is the greatest blessing that a sovereign can bestow on his people.

* Marq. Beccaria.

D

+ Montesquieu.

With regard to the acts of Tynwald relative to the penal law, the quotations in the Appendix, from all those which can be now enforced by the magistracy of the island, will impress the mind of the reader with grave reflections on the immediate necessity of a revision of several of them, particularly the statute of 1629, which comprizes offences of very inferior criminality, and naturally causes some astonishment, how it was thought necessary to make them punishable with death*.

In exercising the high authority of legislation, the quantity and quality of human punishment will doubtless be wisely considered; and the legislator will bear in mind, that all punishments should, if possible, be not only in terrorem aliorum, but in emendationem delinquentis; it will consequently follow, that liberty and reason must triumph when the laws are neither indefinite or obscure-when they proportion the punishment to the offencewhen outrageous penalties cannot be enforced -and when crimes shall be more effectually prevented by the certainty, rather than by the severity of punishment.

This great work being happily accomplished, it will be farther manifest (in the language of an eminent divine), that "two things speak much the wisdom of a nation, viz. good laws, and a prudent management of them."

* It is much to be lamented, that it should be made a capital crime in England, to cut down a cherry-tree in an orchard, or to break down the mound of a fish-pond, and that too in the eighteenth century.

+A. B. Stillingfleet.