it does not appear to me that any other ground can be stated, upon which the courts of Westminster can interfere in the proceedings of other courts, where the matter is clearly within their jurisdiction; that they have decided wrong, may be a ground of appeal, it may be a ground of review, but not a ground of prohibition." It has been contended that the sentences of courts-martial are liable to be reversed by either house of parliament, but this is manifestly erroneous. The House of Commons, not possessing judicial functions, never could exercise such a power, howmuchsoever the proceedings of the military courts may be discussed and censured there. But the power of the House of Lords to review and reverse their sentences, in common with those of all other courts, is unquestionable, though it does not appear to have been ever exercised.

By the 75th section of the Mutiny Act it is provided, that actions brought against persons for any thing done in pursuance of the act, must be brought within six months, and that the defendant may plead the general issue, and give all special matters in evidence; and if the defendant obtain a verdict, or the plaintiff become nonsuit, the court shall allow treble costs to the former. By the same section, persons seeking redress against the members of a court-martial, are confined to the courts of record at Westminster and Dublin, and the court of session in Scotland. General officers and others commanding on foreign stations, may be sued for any oppression committed by them, in the Court of King's Bench, under the stat. 42 Geo. III. c. 85, and the matter or act may be laid to have been done in Westminster.

ART. II. THE AMERICAN PENITENTIARIES.

Report of William Crawford Esq. on the Penitentiaries of the United States, addressed to his Majesty's Principal Secretary of State for the Home Department. Ordered by the House of Commons to be printed, 11 August, 1834. In our tenth volume (art. vi.) we gave our readers an account of the penitentiary system of the United States, on the authority of the able work of MM. de Beaumont and de Tocqueville, of which an English translation by Dr. Lieber, accompanied with some additional matter, has since been published in America. Since the appearance of that work, the English government, desirous to obtain additional information on the question of prison discipline, (to which the recent discussions on the punishment of transportation have given a new interest), have sent a commissioner to North America, for the purpose of "inspecting the several Penitentiaries of the United States, with a view to ascertain the practicability and expediency of applying the respective systems on which they are governed, or any parts thereof, to the prisons of this country." Mr. Crawford, the gentleman charged with this mission, appears by his previous knowledge of the subject-matter of his inquiry, and his powers of accurate observation and sound judgment, to have been peculiarly well fitted for the task, and the result of his investigations is contained in the copious and detailed report now before us. We propose, in presenting to our readers the principal heads of this report, to give only a succinct statement of those points which have already been satisfactorily explained by MM. de Beaumont and de Tocqueville, and we shall dwell more at length on those matters in which Mr. Crawford has either added to their account, or in which he has formed a different view of the ques

tion.

Mr. Crawford begins his report with an interesting sketch of the state of the criminal law in the different States of the Union.

"The common law of England is still in force in the United States, except where altered by statute. In Rhode Island the charter of Charles II. still supplies the place of the constitutions adopted in most of the other states. Dis

puted points of law are explained and decided by constant reference to the authority of English text books and the reports of decisions in the English courts. The rules of evidence and the definition of most of the principal crimes are generally similar to those received in the parent country. A distinction in cases of murder, by recognizing different degrees of that crime, prevails in several states. The Pennsylvanian law of 1794, after reciting that the several offences which are included under the general denomination of murder, differ so greatly from each other in their atrocity that it is unjust to involve them in the same punishment, enacts, that all murder which shall be perpetrated by means of poison or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery or burglary, shall be deemed murder of the first degree, and all other kinds of murder shall be deemed murder of the second degree.' And this is the usual distinction, although slightly varied in different states; but every state which recognizes degrees seems to require, in order to constitute murder of the first degree, either the most deliberate malice, or that it should take place in the commission of a felony, or more frequently one of the principal felonies mentioned in the Pennsylvanian law. The recognition of different degrees of the same crime is in some states extended to several offences, especially where the criminal law has been most systematically arranged, as in New York; but it is somewhat remarkable that in this state there are no degrees of murder. The same effect however results from the different degrees of manslaughter, some of the highest of which comprehend cases which would by the law of England amount to murder. The advantages of such an arrangement, independently of superior system and method, consist in pointing out to the public mind how the same act becomes more dangerous to society, and therefore more criminal, according to attendant circumstances; and also in many cases, in securing the infliction of a greater penalty for an aggravated offence. To take for example the crime of arson in New York: To set fire to an empty house by day, is the fourth or lowest degree of arson, and the penalty is imprisonment from two to seven years.

If the same should be done by night, it becomes arson of the third degree, and seven years is the shortest term for which the prisoner can be sentenced, and this may be extended to ten years. If the house be not empty, the crime, although committed by day, would be arson of the second degree, and punished with imprisonment for not less than ten years; and if the offence were committed by night, it would amount to the highest degree of arson, the penalty for which is death. In a similar way the law generally regards the crimes of burglary and robbery as aggravated by the offender being armed or by the use of violence. In the case of manslaughter, even where degrees are not generally observed, a distinction is frequently taken in favour of involuntary manslaughter, committed in doing some unlawful act which would not render the offender guilty of murder. The effect of this discrimination is to leave less to the discretion of the court or jury (as the case may be according to the law of the state) than must necessarily be done where the same nominal offence comprises every degree of guilt, and so to give less occasion to the greater criminal to calculate upon a lenient punishment.”

In these changes of the criminal law, which the Americans of the United States derived from us, there is much which we could imitate with great advantage. One of the greatest defects of our present criminal system is the extreme vagueness in the description of the offences, and the consequent uncertainty in the allotment of punishment. Where the discretion is so large, the same judge may at different times mete out different lots of punishment for offences of the same criminality, while the views of different judges may be naturally expected to be still more discordant. The attention paid to character, to the entreaties of prosecutors, or the representations of magistrates, and other influential persons, have likewise a mischievous effect in serving to render uncertain and fluctuating that lot of punishment which ought to be inflicted with almost mechanical regularity.

The criminal law in the United States is administered by justices of the peace, circuit judges, and the superior courts. The justices of the peace have nearly the same functions, with respect to the preliminary parts of criminal procedure, as in this country: their mode of appointment varies; in some VOL. XIV,

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states they are elected by the governors, in others by the legislature, in others by the people: the recent alterations in the mode of appointment have uniformly been in favour of the more popular form of election.

"There is generally in each county, as in Scotland, a public officer, who in ordinary cases prefers indictments and conducts the trial throughout. This, although it will not by any means secure a prosecution wherever it may be required, must certainly render the administration of criminal justice more certain, by diminishing the number of offences which may be committed with impunity from the unwillingness of parties to prosecute. If indeed on the commission of an offence the sufferer determine from the first to abstain from proceeding, no prosecution will in the majority of cases be instituted ; but, if either irritated by his loss, or impelled by a sense of public duty, he take any step in the affair, the interests of justice cannot easily be defeated by his subsequent conduct. The matter being then in the hands of the public prosecutor, the injured party is merely a witness, and if his testimony be material it is secured; but he is at the same time relieved from all care and consideration as to the manner of conducting the prosecution, the expense attendant upon it, and the means and probability of being reimbursed. The province of the jury is in some states of much the same extent as in England, except that they appear less controlled by the judge, even in matters of law; whilst in other states, besides dividing absolutely on the guilt or innocence of the accused, they determine his punishment, if guilty, fixing the amount of the fine, the duration of the imprisonment, and even the number of lashes to be inflicted. How completely uniformity of punishment, one of the most powerful means of rendering it effective, is thus lost sight of, it is needless to observe. Experience shows how difficult it is to preserve an uniform course of punishment, wherever the legislature has afforded any latitude for discretion, although this discretion be exercised by men of similar education, habits, studies, and employments. But where none of these points of similarity exist in the various tribunals, any approach to uniformity of punishment must be impracticable."

Generally, throughout the Union, the punishments are fixed