ostility
on the part of juries to capital punishment, which has on the whole
lessened rather than increased since the middle of the 19th century. It
is rarely if ever necessary in England, though common in America, to
question the jurors as to their views on capital punishment. The reasons
for the comparatively small number of convictions for murder seem to be:
(1) that court and jury in a capital case lean _in favorem vitae_, and
if the offence falls short of the full gravity of murder, conviction for
manslaughter only results; (2) that in the absence of a statutory
classification of the degrees of murder, the prerogative of mercy is
exercised in cases falling short of the highest degree of gravity
recognized by lawyers and by public opinion; (3) that where the
conviction rests on circumstantial evidence the sentence is not executed
unless the circumstantial evidence is conclusive; (4) that charges of
infanticide against the mothers of illegitimate children are treated
mercifully by judge and jury, and usually terminate in acquittal, or in
a conviction of concealment of birth; (5) that many persons tried as
murderers are obviously insane; (6) that coroners' juries are somewhat
recklessly free in returning inquisitions of murder without any evidence
which would warrant the conviction of the person accused.

The medical doctrine, and that of Lombroso with respect to criminal
atavism and irresponsibility, have probably tended to incline the public
mind in favour of capital punishment, and Sir James Stephen and other
eminent jurists have even been thereby tempted to advocate the execution
of habitual criminals. It certainly seems strange that the community
should feel bound carefully to preserve and tend a class of dangerous
lunatics, and to give them, as Charles Kingsley says, "the finest air in
England and the right to kill two gaolers a week."

The whole question of capital punishment in the United Kingdom was
considered by a royal commission appointed in 1864, which reported in
1866 (Parl. Pap., 1866, 10,438). The commission took the opinions of all
the judges of the supreme courts in the United Kingdom and of many other
eminent persons, and collected the laws of other countries so far as
this was ascertainable. The commissioners differed on the question of
the expediency of abolishing or retaining capital punishment, and did
not report thereon. But they recommended: (1) that it should be
restricted throughout the Uni