The judge must determine the fact; and to him also the punishment must sometimes be left.

What shall the law prescribe, and what shall be left to the judge?
A city is unfortunate in which the tribunals are either secret and speechless, or, what is worse, noisy and public, when the people, as if they were in a theatre, clap and hoot the various speakers.

Such courts a legislator would rather not have; but if he is compelled to have them, he will speak distinctly, and leave as little as possible to their discretion.

But where the courts are good, and presided over by well-trained judges, the penalties to be inflicted may be in a great measure left to them; and as there are to be good courts among our colonists, we need not determine beforehand the exact proportion of the penalty and the crime.

Returning, then, to our legislator, let us indite a law about wounding, which shall run as follows:--He who wounds with intent to kill, and fails in his object, shall be tried as if he had succeeded.