that the jury were unanimously of opinion that no human tribunal has power to punish with death. His lordship inquired if that was the only ground, and, being answered in the affirmative, he rejoined, " And a most absurd one it is," and immediately passed sentence of death, which was executed accordingly. Still more recently, a person was tried before the same learned judge for a gross personal assault upon her Majesty; and, in passing sentence of transportation upon the prisoner, his lordship said, "I shall not add, in your case, the disgraceful punishment of whipping. The court has some respect for you, though you seem to have so little for yourself." Had the prisoner been a half-starved artisan, who had shot a partridge, would his lordship have expressed the same respectful consideration?

Such language, again, as the prerogative of mercy in the hands of the sovereign, involves fallacies and follies which will not bear a moment's examination. Mercy is the rightful prerogative of the Divine Being alone, and he alone is rightfully a sovereign. The person who, from the accident of birth, is placed upon the throne of a civilised and free country, rightfully possesses no claim to sovereignty, and no function of mercy. The law by which he reigns is the sole sovereign, and that law should be so based in the principles of mercy, that there should be no necessity for the interference of individual humanity and caprice. Let that law recognise the inalienable claims of society, and the unchangeable dictates of humanity-let it so recognise the unhappy case of the misguided and the vicious, as to provide at once for their harmlessness and their reformation, and not permit either a capricious toleration or an arbitrary intolerance, on the part of the fallible monarch and judges of the day, to interfere with its benign and wholesome operation. The power to pardon without a reason involves the power to punish without

a cause.

Both these systems are the offspring of the noxious and monstrous fallacy of the divine right of kings, and, if they led to no other practical mischief, it would be enough that they encourage crime, by adding a new element of uncertainty to the necessary fallibility of all human penal administration. The certainty of punishment is of more consequence than its severity. Offenders do not so much console themselves with the lenity of the sentence, as they flatter themselves with the hope of escape with impunity. They are not so apt to compare what they gain by the crime, with what they may suffer from its punishment, as to encourage themselves with the chance of impunity from concealment or flight, or from the capricious tenderness of a monarch or a judge. For these reasons, a vigilant magistracy, an active police, a proper distribution of force and intelligence, together with a suitable interest in the public at large in the discovery and apprehension of malefactors, and an undeviating impartiality in executing the laws, contribute far more to the repression of crimes than any violent exacerbations of punishment. Nothing but the exclusion of public opinion from its rightful influence in the legislature can account for the perpetuation, to this time, of so clumsy a method of patching up, by discretionary power and prerogative, a barbarous and unchristian penal code.

The heart-sickening scenes which are witnessed at our public executions have induced some persons, who feel more correctly than they

think, to propose a very superficial remedy, in the privacy of capital inflictions. It is surprising that the abettors of this proposal do not see that they virtually surrender the main object, by reference to which capital punishments can be justified at all. It is their supposed exemplary effect upon spectators, in consideration of which they are suffered to continue; and every one at all acquainted with human nature must be aware how very slight would be the effect of such punishments, if they were inflicted, or said to have been inflicted, within the walls of a prison.

"Segnius irritant animos demissa per aurem,

Quam quae sunt oculis subjecta fidelibus."

As it is, we question if the effect of executions outlives, in the majority of cases, the day on which they occur; and the most notorious criminals soon fade from general recollection, and only live in the traditions of the jail. From this, we may conclude how utterly unimpressive the occurrence would be, if it were veiled from the observation of the public. We will not insist upon an objection which would, we believe, be universally made to such a system that it is utterly repugnant to our national character and institutions-but rather point out two reasons which appear to us to justify that repugnance. The first is, that doubts would continually lie upon the mind of a large majority of the public, as to whether, in certain cases, the sentence of the law had really been executed; and it is needless to point out the tendency of such uncertainty to weaken those restraints, by which the more abandoned of mankind are solely withheld from the commission of crime. Were this the only objection to the system of private executions, we much doubt if it could prevail in this country for five years. Another objection to it, however, would be, that the public would have no sufficient guarantee that the punishment was not accompanied with circumstances which could neither be tolerated by humanity nor religion. Indeed, there is a popular feeling, whether well or ill founded, respecting all the functionaries who have to do with what is vulgarly called "the finishing of the law," which, we think, would be intensified to a very pernicious degree, were executions suffered to be conducted even with comparative privacy. But, far above these considerations, we are of opinion, that the advocacy of such a method would practically involve the abandonment of the great principle for which we have been pleading. We repeat our conviction, that the punishment of death, inflicted by any human tribunal, is an invasion alike of the rights of men and the prerogative of God— is a violation of the principles of the Christian religion—an outrage on the feelings and the decencies of civilised society, and a certain means of perpetuating the very crimes it is designed to repress. On these grounds, we think that the Christian world should admit of no compromise in this important matter, and that wise statesmen and humane and Christian men should give themselves no rest until the last vestige of the system is expunged from the statute-book, as an impiety, a barbarism, and a folly.

309

THE SCOTTISH CLANS AND THEIR TARTANS.*

WHILE We write, numerous gay and happy parties are passing to, and returning from, the Scottish Highlands. Every facility in the shape of rail, the good old stage-coach, the nimble steam-boat on lovely lake (whose glassy surface was unbroken, in days of yore, by the rude paddlewheel, and whose pure, delicious atmosphere was then unalloyed by the impurities of smoke, except it might be a solitary curl sent stealthily forth from some unfrequented gully, what time the clansman produced his "mountain dew !"), is afforded to the tourists. They have "guides," too, in abundance: "Anderson" or "Black" will do the part of cicerone to the entire satisfaction of the most fastidious.

Numerous motives contribute to entice so many to do what may be called the grand northern tour. How picturesque and sublime the scenery in its general features! and how inimitably placid and sweet are many of the lakes, or lochs, as they are called, that lie cradled among the mountains! We shall never forget the impression produced upon our minds when standing upon one of the peaks of the Grampian range. All around, and stretching far away, there spread before you a perfect sea of mountain-tops. The billow-like heights diminished in distinctness and prominency as the circle widened, till they were lost in mere inequalities. As you circumscribed your gaze, and drew in your vision upon objects nearer to your stand-point, the rocky sea gathered itself up into waves, huge, high-crested, and far-stretching. At first, the more prominent and bare parts of the eminences were visible; then your eye swept along the green mountain-sides; then you looked down into the peaceful and smiling valleys that radiated from the base of the mountain on which you stood, each with its silvery stream fringed with a narrow border of deep green, with here and there a cultivated patch, and, in a shady-corner, a solitary shepherd's cot, white as the driven snow. Scarce observed, the sheep spread themselves over the higher regions of the mountain, picking incessantly the scanty herbage. On the richer parts of the valley, the cattle browsed, while the inmates of the cot moved about in solemn duty, or frolicked by the bonny burn, in obedience to the buoyant, happy spirit of youth, and in unison with nature in these sequestered regions. From this elevated position, where neither the strife of tongues, nor the lowing of the cattle, nor the sharp music of the hurrying stream, nor the peculiar hum (made up of various sounds) of a Highland valley, could reach your ears, you looked down upon an enchanted scene. You know that there is life and activity; but how the inmates are occupied, the character of their intercourse, the nature of their enjoyments, you are left to conjecture, and imagination is not long in busying herself.

How pure and invigorating the atmosphere! It is life to the pent-up, benighted denizen of the manufacturing city, and the pale-faced, ema

The Clans of the Highlands of Scotland: being an Account of their Annals, Separately and Collectively, accompanied with Accurate Coloured Delineations of their Various Tartans. Edited by THOMAS SMIBERT, Esq. Edinburgh: J. Hogg. 1850.

ciated student of law and literature. Many a tale is told of men, pre maturely old, who went tottering from their homes with but small hope of permanent recovery, and who returned with the glow of health upon their cheek, and the freshness and vigour of manhood in their bones. Such an one was our friend Tomkins. The responsibility of a large business lay upon his shoulders, once of herculean strength. It was too great for him; he reeled under it; his nerves became unstrung; he became a weak man-the shadow of what he had been. A word pitched on too high a key, a look of astonishment, the unexpected appearance of a friend, would make him tremble and shrink like a man with a guilty conscience. He had nearly become a wreck, though one of the most moral of men. In this state, he was conveyed to the Highlands. His utmost pedestrian feat was a mile. He took up his abode in the house of a farmer; the kindness of the inmates made up for the limited and plain accommodation. Tomkins was content, and Tomkins grew happy in his Highland home. He boated on the loch; he fished with great success; he wandered on the hills, and went with his host in search of his scattered flock; and, in a few weeks, Tomkins was a new man. He returned to the bosom of an affectionate and anxious family, grateful for the restoration of health, and firmly resolved to take matters more easily for the future.

How numerous are the historical associations connected with the Scottish Highlands! Not a valley but has witnessed scenes full of tragic interest in those dim ages when the rivalry of clanship constantly appealed, alike on great and small pretence, to the broad-sword and the battle-axe. Not a gorge or mountain-pass but echoes doleful notes of wo and wailing. Foemen have often met foemen, where nought was seen save the rugged rocks besprinkled with the solitary mountain-pine above, and the peaceful copsewood around, and where nought was heard save the rumbling of the leaping torrent sheer below; and bold deeds have been done, and clansmen's blood has mingled with the blood of clansmen, and spirits, brave and fearless, have burst forth from mortal clay, and taken their departure to the land of ghosts on the wings of the hoarse music that played incessantly, irrespective altogether of the deathblows that were dealt, and the death-moans that were heard. Not a lake whose waters have not been dyed with the life-blood of the Gael, and whose margin is not dotted with aged tree, or green mound, or grey cairn, to mark the spot where some debt of vengeance was paid, where some fierce attack was successfully resisted, or where some dauntless chieftain fell. Nor is the picture entirely dark, though it be deeply shaded: generous deeds were done, chivalrous acts were performed, and patriotism, stern and pure, found a home in the land of the Gael. Its valleys were never trod by the feet of the conqueror: the Roman eagle never soared over the Grampians. The atmosphere of our much-loved Highlands is vocal with ancient song and story. They encircle the mountain-tops, they sweep the mountain-sides, they hover over the pure and placid lakes, they find a voice in the gorges and gullies, they murmur themselves forth in the streams.

Sir Walter Scott was not the cause, but simply the occasion, of the flow of fashion, and intelligence, and taste to the Scottish Highlands. There was enough in themselves in their bracing atmosphere, in their

scenery, in their historic associations to interest, to attract, to irresistibly draw to their valleys and their lakes the invalid, the lover of nature, the antiquarian, and the patriot. Our great novelist and poet had but to point his pen towards the north, and multitudes were prepared to turn their faces in that direction. He had but to write the words "scenery," "historic association," &c., and they were ready to go and appreciate them; he had but to point the rod to the sky, and the electric fluid discharged itself. Deeply indebted we are, notwithstanding, to the author of "The Lady of the Lake" and "Rob Roy," and other writers of less note, for directing attention to the sublime scenery of the western Highlands, and laying open to the lowland and southern visiters the treasures of ancient Caledonia.

Everything about the Highlander, as well as about the Highlands, is interesting his history, his social condition, his language, his very costume. Curiosity is awakened in regard to him; a strong desire is evinced to become better acquainted with him, both in his ancient and modern character his past and his present condition. To direct properly this curiosity, and to gratify this desire, this splendid work on the Clans of Scotland was produced. There was, indeed, no lack of works on the subject. Not to mention more, there was the "Essay," by Skene; "The Highlands and Isles," by Gregory; and "The History of the Highlands," by Dr Brown. Then there was the "Vestiarium Scoticum, with Notes," by John Sobieski Stuart. But, notwithstanding the existence of these, and other works on the general subject, there was abundant room for another-one that should manifest equal familiarity with the history and character of the Gael, that should display equal enthusiasm in the treatment of the subject, and that should furnish more accurate information relative to the Tartans-the picturesque garb of the Scottish Highlander. Such a work is Smibert's "Clans of Scotland." Speaking of its literature, it has all the ancient lore, the wonderful familiarity with Scottish heraldry, that characterise Skene's " Essay," with far more of the popular element; it treats the subject in a more direct and systematic manner than the work of either Gregory or Brown, and consequently throws a flood of connected light upon the origin and history of the Clans, not as a nation, but as Clans distinct from each other, of which the nation was composed. The beautiful set of lithographic plates of the "Clan Tartans," which the work contains, is, we should say, the most perfect that exists. It is now admitted, that the so-called original document of the "Vestiarium Scoticum" is a forgery, and, consequently, its Clan Tartans have no more authority than what may be derived from the knowledge or caprice of the Stuarts; and the work on Scottish Tartans, manufactured in Cumnock during the progress of Smibert's work through the press, smacks so much of haste, and a desire to catch a market when expectation had been created, that its authority, one might say, will be found to be nil. For an intelligent, genial, popular history of the Gael, in their various septs or clans; and for an accurate complete, and beautiful set of Clan Tartans, Smibert's work stands unrivalled. And we know of no work that has a better claim to a place in the library of every Highland gentleman, whether he be still a dweller in the valleys of his fathers, or a sojourner in the sunny South, or an exile in the vast prairies of the New World. It is, indeed, a national work,and