perpetration of new crimes. They have no place left for penitence on earth; they labour under the most awful proscription of opinion that ever was pronounced against human beings. They have cut down every bridge by which they could retreat into the society of men. Awakened from their dreams of democracy, the noise subsided that deafened their ears to the voice of humanity; the film fallen from their eyes which hid from them the blackness of their own deeds, haunted by the memory of their inexpiable guilt; condemned daily to look on the faces of those whom their hand made widows and orphans, they are goaded and scourged by these real furies, and hurried into the tumult of new crimes, which will drown the cries of remorse; or, if they be too depraved for remorse, will silence the curses of mankind. Tyrannical power is their only refuge from the just vengeance of their fellow-creatures; murder is their only means of usurping power. They have no taste, no occupation, no pursuit, but power and blood. If their hands are tied, they must at least have the luxury of murderous projects. They have drank too deeply of human blood, ever to relinquish their cannibal appetite. Such a faction exists in France. It is numerous, it is powerful, and it has a principle of fidelity stronger than any that ever held together a society. They are banded together by despair of forgiveness, by the unanimous detestation of mankind. They are now contained by a severe and stern government. But they still meditate the renewal of insurrection and massacre, and they are prepared to renew the worst and most atrocious of their crimes, that crime against posterity and against human nature itself; that crime. of which the latest generations of mankind may feel the fatal consequences the crime of degrading and prostituting the sacred name of liberty! I must own, that, however paradoxical it may appear, I should almost think not worse, but more meanly of them, if it were otherwise, I must then think them destitute of that, which I will not call courage, because that is the name of a virtue-but, of that ferocious energy which alone rescues ruffians from contempt. If they were destitute of that which is the heroism of murderers, they would be the lowest as well as the most abominable of beings."

The following is the peroration of this noble burst of oratory: "In the court where we are now met," said Mr Mackintosh, "Cromwell twice sent a satirist on his tyranny to be convicted and punished as a libeller; and in this court, almost in sight of the scaffold streaming with the blood of his sovereign, within hearing of the clash of his bayonets which drove out parliaments with contumely, two successive juries rescued the intrepid satirist from his fangs, and sent out, with defeat and disgrace, the usurper's attorney-general from what he had the insolence to call his court. Even then, gentlemen, when all law and liberty were trampled under the feet of a military banditti,-when those great crimes were perpetrated on a high plan, and with a high hand against those who were the objects of public veneration, which more than any thing else upon earth overwhelm the minds of men, break their spirits, and confound the moral sentiments, obliterate the distinctions between right and wrong in the understanding, and teach the multitude to feel no longer any reverence for that justice which they thus see triumphantly dragged at the chariot wheels of a tyrant,-even then, when this unhappy country, triumphant indeed abroad, but enslaved at home, had

no prospect but that of a long succession of tyrants, wading through slaughter to a throne,-even then, I say, when all seemed lost, the unconquerable spirit of English liberty survived in the hearts of English jurors. That spirit is, I trust in God, not extinct; and if any modern tyrant were, in the drunkenness of his insolence, to hope to awe an English jury, I trust and believe that they would tell him, 'Our ancestors braved the bayonets of Cromwell; we bid defiance to yours.' Contempsi Catilinæ gladios, non pertimescam tuos."

Soon after this splendid forensic exhibition Mr Mackintosh was appointed recorder of Bombay, and knighted before his departure for India. "Though few men," says Mr Campbell, "have been more spoken of, yet very little has been hitherto said of the extraordinary eminence with which he filled that important office. The annals of his recordership would, of themselves, form a great chapter in judicial biography. In some of the trials at which he presided, his zeal for the wronged appellant, his perseverance in the detection of guilt, and the intellectual strength with which he tore to pieces the meshes of legal chicanery, unmasked the face of fraud, and took trembling innocence under the sacred protection of the judge's ermine, excite an interest that is absolutely dramatic, nay, that is more than dramatic; for the scene is all truth, and the real triumph of reason and benevolence. On the bench at Bombay he immediately showed himself a great masterperhaps among the greatest that ever lived-in one of the most important of human sciences, Criminal Jurisprudence.' That he owed his skill in this science to vast and laborious preparation was his constant boast; and if any boast can be justified, it is that of genius confessing the debts it has owed to labour. In his first charge to the grand jury of Bombay, July 17th, 1804, he speaks of the intense pains which he had taken to prepare himself for this new field of action, where every object in society on which he had to reflect, was as remote from our own in point of manners, habits, laws, and notions of morality, as the locality of India is from our native soil. Already it might be said, to his praise, though to our regret, that we had at that time a judge in the remotest part of the empire, who was not more remote in the locality of his bench than in the level and grandeur of his mind, from the mass of his brother judges at home, who clung, and who still cling, both as legislators and lawyers, to their darling principle of ad terrorem.'

"In his first address to the jury of Bombay, to which we have alluded, he said that it had been one of his chief employments to collect every information about the character and morality of the people that were to be intrusted to his care, and about the degree and kinds of vice that were prevalent in their community. He compared himself, in this preliminary occupation, to a physician appointed in an hospital, who would first examine the books of the establishment, in order to make himself acquainted with the complaints that were most frequently to call for To his deep regret he found that the most besetting sin of the native East Indians was that of perjury. More apposite remarks on the subject could scarcely be made than those which I shall quote from his speech on this occasion. The prevalence of perjury,' he said, 'is, perhaps, a more certain sign of the dissolution of moral principle than other more daring and ferocious crimes, more terrible to the imagina

cure.

tion, and of which the immediate consequences are more destructive to society. Perjury indicates the absence of all the common restraints which withhold men from crimes. It supposes the absence of all fear of human justice, and bids defiance also to all human laws; it supposes also either a contempt for public opinion, or, what is worse, a state of society which has ceased to brand with disgrace actions that ought to be infamous: it is an attack on religion and law in the very point of their union.'

"The warmth of his zeal, however, against this and every other crime, was always accompanied with enlightened philanthropy. Though it be reasonable,' he says, 'to examine the character of those over whom we have authority, and to calculate the mischievous consequences of crimes by just representations of their nature and tendency, it is very useless, and very unreasonable to indulge ourselves in childish anger and childish invective. When we are speaking of the moral diseases of great nations, the reasonable questions always are, how they have been produced, and how they are to be cured.'

"Let us see how he proceeded in attempting the remedy of this perjurious disposition of the Indians, and how he awarded the punishment to the crime of perjury. He had already from his judgment-seat declared to the grand jury that he had the strongest repugnance to capital punishment; and that he had no high opinion of the efficacy of transportation, either for reformation or for example. A native woman had been fully convicted of being guilty of wilful and corrupt perjury, while giving evidence on a trial of two individuals for murder, her testimony having been totally different from that which she had originally given before the coroner. During her examination as a witness, Sir James asked her whether she thought there was any harm in false swearing. She answered that she understood the English had a great horror of it, but that there was no such horror in her country. The reason of her silence as to the murder (in which she was probably the principal agent) she said was, that in her country, Ahmedabad, a fine of five rupees was imposed upon any one who spoke of a murder. Here, then, we have a striking instance of the effect of laws upon the manners of a people; the very law holding murder in such abhorrence, as not to allow the mention of the crime, rendered its accomplishment more easy. Sir James sentenced this woman to five years' imprisonment, during which period she had to stand once a-year in the pillory, in front of the courthouse, with labels on her breast and back, explanatory of the crime of which she had been guilty, and of the resolution of the court to adopt the most rigorous means for the extirpation of this offence.

"One of his most eloquent addresses was made on the trial of two young (native) officers, who were convicted of having conspired to waylay and assault by night two Dutchmen from Cochin, under very aggravated circumstances. There was no doubt of the culprits having designed the commission of murder; but their design had been apparently formed under the influence of intoxication; and it seems liable to suspicion, that they were both of them desperadoes, in whose temperament there was some admixture of insanity. Whatever might be the grounds of his lenity, Sir James was determined that they ought not to be put to death; though I infer from connected circumstances, that he took care that after their punishment of incarceration, they

should not be let loose on society without some watch being placed over them, or some one being made their surety. The benevolence of his unwillingness to spill their blood, will not be lessened in our consideration, when we learn, that he had himself very nearly fallen a victim to those ruffians. Expecting to be called up to receive sentence of death, they had got knives, and were resolved to sacrifice their sentencer. Most fortunately their design was discovered; but the discovery made no alteration in Sir James's conduct towards them. It has been my fate,' he said, 'in this place, to be obliged to justify the lenity rather than the severity of the penalties inflicted here. I think it is likely to continue so; for I have more confidence in the certainty than in the severity of punishment. I conceive it to be the first duty of a criminal judge to exert and to strain every faculty of his mind to discover in every case the smallest possible quantity of punishment that may be effectual for the ends of amendment and example; I consider every pang of the criminal, not necessary for these objects, as a crime in the judge. I was employed,' he added, addressing himself to the culprits, in considering the mildest judgment which public duty would allow me to pronounce on you, when I learned from undoubted authority that your thoughts towards me were not of the same nature. I was credibly, or rather certainly informed, that you had admitted into your minds the desperate project of destroying your own lives at the bar where you stand, and of signalizing your suicide by the previous destruction of at least one of your judges. If that murderous project had been executed, I should have been the first British magistrate who ever stained with his blood the bench on which he sat to administer justice. But I could never have died better than in the discharge of my duty. When I accepted the office of a minister of justice, I knew that I ought to despise unpopularity, and slander, and even death itself. Thank God, I do despise them; and I solemnly assure you, that I feel more compassion for the gloomy and desperate state of mind which could harbour such projects, than resentment for that part of them which was directed against myself. I should consider myself as indelibly disgraced, if a thought of your projects against me were to influence my judgment. After a most impressive admonition to return to a better state, he pronounced judgment upon them, to be imprisoned for twelve months."

After seven years' residence in India, Sir James was obliged by ill health to return to England. In 1813 he was elected member for the county of Nairn, and in 1818 for Knaresborough. His first great

speech in parliament was on the subject of Buonaparte's escape from Elba; but the sphere in which he chiefly and most beneficially distinguished himself was the amendment of the criminal law, in which he followed the footsteps of the lamented Romilly. The following extracts from his speeches on this subject will illustrate his views and the ability with which he expounded them: "If a foreigner were to form his estimate of the people of England from a consideration of their penal code, he would undoubtedly conclude that they were a nation of barbarians. This expression, though strong, was unquestionably true; for what other opinion could a humane foreigner form of us when he found that in our criminal law there were two hundred criminal offences against which the punishment of death was denounced, upon twenty of which

only that punishment was ever inflicted,-that we were savage in our threats, and yet were feeble in our execution of punishments,-that we cherished a system which in theory was odious, but which was impotent in practice from its very severity,-that in cases of high treason, we involved innocent children in all the consequences of their father's guilt, -that in cases of corruption of blood we were even still more cruel, punishing the offspring when we could not reach the parent,—and that on some occasions we even proceeded to wreak vengeance upon the bodies of the inanimate dead? If the same person were told that we were the same nation which had been the first to give full publicity to every part of our judicial system,-that we were the same nation which had established the trial by jury, which, blameable as it might be in theory, was so invaluable in practice,-that we were the same nation which had found out the greatest security which had ever been devised for individual liberty, the writ of habeas corpus, as settled by the act of Charles II.,-that we were the same nation which had discovered the full blessings of a representative government, and which had endeavoured to diffuse them throughout every part of our free empire, he would wonder at the strange anomalies of human nature which could unite things that were in themselves so totally incompatible. If the same foreigner wcre, in addition to this, told that the abuses which struck so forcibly on his attention were the abuses of the olden time, which were rather overlooked than tolerated, he might, perhaps, relent in his judgment, and confer upon us a milder denomination than that of barbarians; but if, on the contrary, he were told that influence and authority, learning and ingenuity, had combined to resist all reformation of these abuses as dangerous innovations,-if he were informed that individuals, who, from their rank and talents, enjoyed not an artificial but a real superiority, rose to vindicate the worst of these abuses, even the outrages on the dead, and to contend for them as bulwarks of the constitution and landmarks of legislation, he would revert to his first sentiments regarding us, though he might, perhaps, condemn the barbarism of the present instead of the barbarism of the past genera

tion.

"I must be allowed to say, that there is a peculiar species of legislative injustice, in the application of the punishment of death to many crimes. The punishment of death is the punishment inflicted upon the highest crime known; and it is impossible that it can be justly applied, unless it be reserved for crimes of the highest enormity. If equal punishment be inflicted on unequal crimes,-gross, scandalous, flagrant, notorious injustice must be the consequence; and it must be a fault in every system of legislation, if it do not confine the highest penalty to the highest crime. By acting upon the contrary system, we produce a disproportion between the punishment and the offence for which it is inflicted. This is the peculiar fault of British legislation, that it does not make a distinction between a crime of the first class and that of an inferior degree; and that a similar discrimination is not made in the punishment appropriated to each. To make myself better understood, I shall just refer to the case of imprisonment for debt. The punishment of imprisonment is called by some jurists a divisible punishment; that is, it may be divided into different proportions, and thus applied to different kinds of crimes; but that is not, and cannot be, the case