In 1810, England had more than two hundred capital offenses on its statute books. Stealing five shillings from a shop was a hanging offense. So was stealing forty shillings from a house. And almost nobody was hanged for either. Of more than eighteen hundred people committed for trial in London for theft from a dwelling in seven years, eight were executed. The law said death. The practice said transportation. Nobody would say why.

Sir Samuel Romilly went to the House of Commons to argue that this was not mercy. It was a lottery.

His case is the one that matters most for anyone looking at an American execution chamber today. A law nobody enforces is not a humane compromise; it is arbitrary power wearing the language of law. Where the selection of who dies is made by unwritten criteria, in private, by officials who never state their reasons, there is no rule at all, only a preference. And a preference cannot be just, because justice means treating like cases alike, and you cannot do that without a public standard for what makes cases alike.

Romilly aimed that argument at William Paley, the philosopher who had defended the English system as ingenious: cast a wide net of capital statutes, then use discretion to pull out the few who really deserve it. This volume contains the demolition of that argument, along with Romilly's account of the innocent, of juries who lied about the value of stolen goods to keep men off the gallows, and of the judge who alone decides who lives.