laymen who have figured in the history of this country, but also by a bench of bishops, as learned, pious, and respectable, as that which their lordships now saw before them, who must have known what was and was not contrary to the genius of the existing religion. I own I cannot easily bring myself to say that a system, which has heretofore received such a sanction is so clearly contrary to the genius of existing religion as some noble lords seem to think it." These doubts and scruples appeared to be rather increased than diminished by the tide of popular favour running counter to them, and when the Slave Trade Abolition Bill was finally read in the House of Lords in 1807, the voice of the Chancellor was still loudly raised against it in prophetic denunciations of the future, and in appeals to authority. "If they consented to the slave trade on the coast of Africa, the application of the same principles would necessarily compel them to extend the abolition to the West India Islands. The slave trade had been sanctioned by parliaments, in which sat the wisest lawyers, the most learned divines, and the most excellent statesmen." He declared, that on this subject he had always differed from his illustrious friend William Pitt. He adverted again to Lord Somers and Mr. Locke, who did not think it wise or politic to oppose it. The Slave Trade went down, however, according to Lord Brougham's simile, with only sixteen commoners sticking in the shrouds, but with thirty-six peers, among whom were the late king (then Duke of Clarence), Lords Westmoreland, Sidmouth, St. Vincent, and Hawkesbury. The gentle animadversions passed by Wilberforce on the timid and unwise policy of his distinguished friend do him credit. "The slave trade," he writes in his Diary (1804) " was opened by the Chancellor in a very threatening speech, because overrating property, and full of all moral blunders, yet amiable in some views. He showed himself to labour with feelings as if he were the legitimate guardian of property." .” “On the last occasion," he writes to an acquaintance, "our old friend Eldon grieved me," and notes down in his private memorandum, what must have been very true, "Lord Eldon humiliating."

The attempted reforms of Romilly were, in like manner, perseveringly frowned down by the Chancellor, under whose guidance the House of Lords, year by year, too successfully

resisted those safe and salutary reforms which tended to humanize our statute book. The offence of shop-lifting, he would argue, had increased enormously in the expectation of a bill for abolishing death for stealing to the amount of 5s. in a shop, passing into a law. "Was it an encouragement or discouragement," he asked, "in the eyes of any man of common sense to commit a crime, that, instead of being hanged, if he committed it, he could, at the most, only be transported?" With grave and statesmanlike displeasure, Lord Grenville declared that such an argument proceeded from the school of Draco, and, if worth anything, only came to this, that death should be the penalty of every transgression. But Lord Eldon insisted that facts bore out his opinion, while he indignantly repelled the cruel corollary sought to be deduced from it. The judges, he said, having found a great number of horses had been stolen, announced publicly, that on the next circuits they would leave every man for execution, who was found guilty of the crime of horse-stealing. Between that and the next circuit not one horse was stolen in all England. We doubt the fact, but not that the worthy judge implicitly believed it, for such stories are often circulated in favour of or against obnoxious systems, and readily find acceptance with believers in the efficacy of terror. In a discussion on the large discretionary powers with which the judges were entrusted, Lord Eldon, at the same time that he justified the discretion, related some interesting particulars of his own conduct as a criminal judge. "I feel great doubt whether it is not more advisable to leave the law upon its present system and on its present method of submitting to the discretion of the judge to discriminate the different shades of offence. I think it would be unwise to divest a judge of the power which may be so often exercised with prudence and humanity. Within my own experience cases have occurred where, if the power was not vested in the judge, the greatest violence might have been done to the cause of justice and humanity. I will take the case of sheep-stealing. My lords, in the court in which I had the honour of once presiding as judge, I remember a whole family of persons were indicted for stealing a single sheep. It was a case of peculiar hardship. These poor people were driven to the commission of a capital crime by the pressing calls of hunger and famine; exhausted nature, no longer able to bear

the restraint of human laws, threw aside every consideration of honesty, and these unhappy wretches committed an offence which subjected them to a capital punishment. Now, my lords, no man living could say that this was a case where the judge should have no discretion. There is no man living who could go through such a trial without feeling that he would commit a greater crime than the unhappy wretches themselves, if he permitted the law to take its course. But, my lords, I shall mention another case where the principle is applicable in the other way, I mean in the case of horse-stealing. I remember this remarkable case to have happened during the short time I had the honour of holding that situation. A man was indicted for stealing a horse of the small value of 5s. which he had sold for that sum to a horse butcher. The jury found him guilty, and you will perhaps be surprised to hear that for so trifling an offence I suffered the law to take its course. The punishment of death for this offence might appear extremely harsh, but, my lords, in this instance I was guided by the nature of the evidence in the course of the trial, the details of which I have now fresh upon my memory. It appeared, I think, that on the prisoner were found skeleton keys of all the turnpike gates within twenty miles of London, which he had manifestly procured for the purpose of carrying on the regular business of a horsestealer. My lords, these are the difficulties that would constantly arise in the administration of a law which prescribed the particular species of punishment for a particular offence. While in the one case you would be acting with the greatest possible severity, you would in the other act with the greatest injustice."

But however much we may agree with the Chancellor's vindication of a large discretionary power being vested in the judges, it must be admitted that he allowed his timidity to subdue his judgment, and made his humane feelings ancillary to his caution in withstanding all legislative attempts to mitigate the rigours of the penal code, even its punishment of fire and the scourge to women, and its nauseous penalties for high treason. He confessed that in early life he had felt a disposition to criticise parts of the criminal law before observation and experience had matured his reason, but that

since he had learned to listen to those great teachers in this important science, his ideas had greatly changed, and he had seen the wisdom of the principles and practice by which our criminal code was regulated; a declaration which must sound strange to those who recollect the vast number of cases in which death has been since abolished with the almost unanimous assent of philanthropic and prudent men, and who bear in mind that at the period of his making such an avowal fresh penal statutes were constantly promulgated after the receipt of the old play, " as bloody as might be." But true to the last in his defence of property, he opposed the abolition of the punishment of death for forgery, contending that if the legislature remitted this dread penalty for such a deliberate offence, they would sacrifice to the cupidity of the abandoned that property which it was their duty to protect. It was well said by a writer, who opposed his views on this question, that had he lived in the days of Queen Elizabeth he would have used the rack according to the benevolent proviso of Lord Burleigh, "as charitably as charitably as such a thing could be,” but that he would have been found voting and speaking against a motion for its disuse, so decided was the contrast between his feelings and his fears. And yet they would wholly misread his character, and do much injustice to his moral worth, who should attribute this yearning for the integrity of our criminal code to any habitual indifference to human sufferings, or callousness of heart. The letter of the law was sanguinary, but no blame could be justly imputed to its administration. The Chancellor might recommend his sovereign to suffer executions to take place more frequently than the boundless compassion of some modern legislators might approve; but he never sanctioned the infliction of the last penalty without the most anxious care. As a writer on our system of penal jurisprudence, Mr. Miller, has justly remarked, "In those cases in which the security or good order of society requires severity to be employed, the public officers on whom the infliction of it happens to devolve have their feelings sufficiently harassed in consequence of the restraint which their judgment is obliged to impose on their inclinations, without being at the same time accused of want of humanity, for no other reason but because they dare not conscientiously indulge it." No one could be more painfully solicitous to do justice, and, ac

cording to the law as it stood, to love mercy. He never went to the King with the Recorder's report in his hand, without having carefully read and made an abstract of every case. To this humane diligence Sir Robert Peel, when Home Secretary, bore the following conclusive testimony: It had fallen to his lot to send to the Chancellor at the rising of his Court to inform him that on the ensuing morning his Majesty would receive the Recorder's report, containing, probably, forty or fifty cases. On proceeding from the Court of Chancery the noble lord would, as was his uniform custom on such occasions, apply himself to the reading of each individual case, and abstract notes from all of them, and he had known more than one instance in which Lord Eldon had commenced this labour in the evening and had been found pursuing it at the rising of the next sun.'

The conscientious humanity and love of individual justice, which dictated this extra-judicial toil, deserves the higher commendation, when we consider the multifarious duties which devolved upon him on quitting his Court. According to the method established in his time of deciding appeals, the whole anxiety and care of a renewed hearing fell to his lot, the illustrious conscripts who sat with him being secured only for a single day; and if the appeal proved long and intricate it might, as was sarcastically observed, begin before an inexperienced youth of one-and-twenty, be continued by a general of horse, and ended by a yellow admiral. Thus, in effect, unassisted, he laboured with unceasing and impartial diligence to revise his former judgments, and gave satisfaction even under the disadvantage of an unsatisfactory system. But in addition to the multiplied appeals there was opened a large expanse of parliamentary toils. The sittings of the House of Lords had begun to extend late into four nights of the week, instead of the quiet, easy repose which former occupants of the woolsack had enjoyed when occasional debates of two or three hours on some important topic, during two or three months in the year, comprehended the light task of legislation. The length and frequency of their meetings on subjects of grave public interest, imposed on Lord Eldon a more responsible duty than had fallen upon any of his predecessors. From these he never shrunk, even to the minutest particu