Front Page Titles (by Subject) A Charge Delivered to the Grand Jury in the Circuit Court of the United States, for the District of Virginia, in May, 1791. - Collected Works of James Wilson, vol. 1
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A Charge Delivered to the Grand Jury in the Circuit Court of the United States, for the District of Virginia, in May, 1791. - James Wilson, Collected Works of James Wilson, vol. 1 
Collected Works of James Wilson, edited by Kermit L. Hall and Mark David Hall, with an Introduction by Kermit L. Hall, and a Bibliographical Essay by Mark David Hall, collected by Maynard Garrison (Indianapolis: Liberty Fund, 2007). Vol. 1.
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A Charge Delivered to the Grand Jury in the Circuit Court of the United States, for the District of Virginia, in May, 1791.
Gentlemen of the Grand Jury,
To prevent crimes is the noblest end and aim of criminal jurisprudence.
To punish them is one of the means necessary for the accomplishment of this noble end and aim. The impunity of an offender encourages him to repeat his offences. The witnesses of his impunity are tempted to become his disciples in his guilt. These considerations form the strongest—some view them as the sole argument for the infliction of punishments by human laws.
There are, in punishments, three qualities, which render them the fit preventives of crimes. The first is their moderation. The second is their speediness. The third is their certainty.
We are told by some writers, that the number of crimes is unquestionably diminished by the severity of punishments. If we inspect the greatest part of the criminal codes; their unwieldy bulk and their ensanguined hue will force us to acknowledge, that this opinion may plead, in its favour, a very high antiquity, and a very extensive reception. On accurate and unbiassed examination, however, it will appear to be an opinion unfounded and pernicious, inconsistent with the principles of our nature, and, by a necessary consequence, with those of wise and good government.
So far as any sentiment of generous sympathy is suffered, by a merciless code, to remain among the citizens, their abhorrence of crimes is, by the barbarous exhibitions of human agony, sunk in their commiseration of criminals. These barbarous exhibitions are productive of another bad effect—a latent and gradual, but a powerful, because a natural, aversion to the laws. Can laws, which are a natural and a just object of aversion, receive a cheerful obedience, or secure a regular and uniform execution? The expectation is forbidden by some of the strongest principles in the human frame. Such laws, while they excite the compassion of society for those who suffer, rouse its indignation against those who are active in the steps preparatory to their sufferings.
We may easily conjecture the result of those combined emotions, operating vigorously in concert. The criminal will, probably, be dismissed without prosecution by those whom he has injured. If prosecuted and tried, the jury will probably find, or think they find, some decent ground, on which they may be justified, or at least excused, in giving a verdict of acquittal. If convicted, the judges will, with avidity, receive and support every, the nicest exception to the proceedings against him; and, if all other things should fail, will have recourse to the last expedient within their reach for exempting him from rigorous punishment—that of recommending him to the mercy of the pardoning power. In this manner, the acerbity of punishment deadens the execution of the law.
The criminal, pardoned, repeats the crime, under the expectation that the impunity also will be repeated. The habits of vice and depravity are gradually formed within him. Those habits acquire, by exercise, continued accessions of strength and inveteracy. In the progress of his career, he is led to engage in some desperate attempt. From one desperate attempt he boldly proceeds to another, till, at last, he necessarily becomes the victim of that preposterous rigour, which repeated impunity had taught him to despise, because it had persuaded him that he might always escape.
When, on the other hand, punishments are moderate and mild, every one will, from a sense of interest and of duty, take his proper part in detecting, in exposing, in trying, and in passing sentence on crimes. The consequence will be, that criminals will seldom elude the vigilance, or baffle the energy, of publick justice.
True it is, that, on some emergencies, excesses of a temporary nature may receive a sudden check from rigorous penalties: but their continuance and their frequency introduce and diffuse a hardened insensibility among the citizens; and this insensibility, in its turn, gives occasion or pretence to the farther extension and multiplication of those penalties. Thus one degree of severity opens and smooths the way for another, till, at length, under the specious appearance of necessary justice, a system of cruelty is established by law.
Such a system is calculated to eradicate all the manly sentiments of the soul, and to substitute, in their place, dispositions of the most depraved and degrading kind. It is the parent of pusillanimity. A nation broke to cruel punishments becomes dastardly and contemptible. For, in nations, as well as individuals, cruelty is always attended by cowardice. It is the parent of slavery. In every government, we find the genius of freedom depressed in proportion to the sanguinary spirit of the laws. It is hostile to the prosperity of nations, as well as to the dignity and virtue of men. The laws, which Draco1 framed for Athens, are said emphatically to have been written in blood. What did they produce? An aggravation of those very calamities, which they were intended to remove. A scene of the greatest and most complicated distress was accordingly exhibited by the miserable Athenians, till they found relief in the wisdom and moderation of Solon. It is a standing observation in China—and China has enjoyed a very long experience—that in proportion as the punishments of criminals are increased, the empire approaches to a new revolution. The Porcian law provided, that no citizen of Rome should be exposed to a sentence of death. Under the Porcian law, the commonwealth grew and flourished. Severe punishments were established by the emperours. Under the emperours, Rome declined and fell.
The principles both of utility and of justice require, that the commission of a crime should be followed by a speedy infliction of its punishment.
The association of ideas has vast power over the sentiments, the passions, and the conduct of men. When a penalty marches close in the rear of the offence, against which it is denounced; an association, strong and striking, is produced between them: and they are viewed in the inseparable relation of cause and effect. When, on the contrary, the punishment is procrastinated to a remote period; this connexion is considered as weak and precarious; and the execution of the law is beheld and suffered as a detached instance of severity, warranted by no cogent reason, and springing from no laudable motive.
It is just, as well as useful, that the punishment should be inflicted soon after the commission of the crime. It should never be forgotten, that imprisonment, though often necessary for the safe custody of the person accused, is, nevertheless, in itself, a punishment—a punishment galling to some of the finest feelings of the heart—a punishment too, which, since it precedes conviction, may be as undeserved as it is distressing. But imprisonment is not the only penalty, which an accused person undergoes before his trial. He undergoes also the corroding torment of suspense—the keenest agony, perhaps, which falls to the lot of suffering humanity. This agony is by no means to be estimated by the real probability or danger of conviction: it bears a compound proportion to the delicacy of sentiment and the strength of imagination possessed by him, who is doomed to become its prey.
These observations show, that those accused of crimes should be speedily tried, and that those convicted of them should be speedily punished. But with regard to this, as with regard to almost every other subject, there is an extreme on one hand as well as on the other; and the extremes on each hand should be avoided with equal care. In some cases, at some times, and under some circumstances, a delay of the trial and of the punishment, instead of being hurtful or pernicious, may, in the highest degree, be salutary and beneficial, both to the publick, and to him who is accused or convicted.
Prejudices may naturally arise, or may be artfully fomented, against the crime, or against the man who is charged with having committed it. A delay should be allowed, that those prejudices may subside, and that neither jurors nor judges may, at the trial, act under the fascinating impression of sentiments conceived before the evidence is heard, instead of the calm influence of those which should be only its impartial and deliberate result. A sufficient time should be given to prepare the prosecution on the part of the state, and the defence of it on the part of the prisoner. This time must vary according to different persons, different crimes, and different situations.
After conviction, the punishment assigned to an inferiour offence should be inflicted with much expedition. This will strengthen the useful association between them; one appearing as the immediate and unavoidable consequence of the other. When a sentence of death is pronounced, such an interval should be permitted to elapse before its execution as will render the language of political expediency consonant to the language of religion.
Under these qualifications, the speedy punishment of crimes should form a part in every system of criminal jurisprudence.
But the certainty of punishments is that quality, which is of the greatest importance in order to constitute them fit preventives of crimes. This quality is, in its operation, most merciful as well as most powerful. When a criminal determines on the commission of a crime, he is not so much influenced by the lenity of the punishment, as by the expectation that, in some way or other, he may be fortunate enough to avoid it. This is particularly the case with him, when this expectation is cherished by examples or by experience of impunity. It was the saying of Solon, that he had completed his system of laws by the combined energy of justice and strength. By this expression he meant to denote, that laws, of themselves, would be of very little service, unless they were enforced by a faithful and an effectual execution of them. The strict execution of every criminal law is the dictate of humanity as well as of wisdom.
This strict execution is greatly promoted by accuracy in the publick police, by vigilance and activity in the ministerial officers of justice, by a prompt and regular communication of intelligence, and by a proper distribution of rewards for the discovery and apprehension of criminals.
Among all the plans and establishments, however, which have been devised for securing the wise and uniform execution of the criminal laws, the institution of grand juries holds the most distinguished place. This institution is, at least in the present times, the peculiar boast of the common law. The era of its commencement, and the particulars attending its gradual progress and improvement, are concealed behind the thick veil of a very remote antiquity. But one thing concerning it is certain. In the annals of the world, there is not found another institution so well adapted for avoiding all the inconveniences and abuses, which would otherwise arise from malice, from rigour, from negligence, or from partiality in the prosecution of crimes.
Among the Romans, any one of the citizens, as well as the person more immediately injured, might prosecute a publick offence. This practice produced mischiefs very great, and of very opposite kinds. Prosecutions were conducted, on some occasions, from motives of rancour and revenge. On other occasions, they were undertaken by a friend, perhaps a confederate of the criminal, with a view to ensure his impunity.
In several of the feudal nations, the judge himself was originally the prosecutor. The gross impropriety of such a regulation appears at the first view. The prosecutor is a party: can the same person be both a party and a judge? To remove the grievances, to which this regulation gave birth, a publick prosecutor was appointed to manage the judicial business of the crown, or of the community, before the proper tribunals.
But that crimes may be prosecuted duly and regularly, it is necessary that impartial and authentick information of their existence should be obtained. To furnish such information is the great object of the institution of grand juries.
Sometimes the grand jury bring forward accusations of their own proper motion: sometimes they proceed upon particular charges formally laid before them by the publick prosecutor. These two modes are distinguished by the well known appellations of presentment and indictment. In both, it is the right, and it is the duty of a grand jury, to inquire diligently, and to present truly.
It is your immediate business, gentlemen, to make inquiries and give official information concerning such crimes and offences as may have been committed against the constitution and laws of the United States, and are cognizable by this circuit court held for the district of Virginia in the middle circuit. To assist you in those inquiries, I shall describe to you the jurisdiction, which, in criminal matters, is vested in the circuit courts; and I shall give you a very plain and concise account of the crimes and offences known to the constitution and laws of the United States, and of the punishments denounced against those crimes and offences.
The circuit courts have exclusive jurisdiction of all crimes and offences, which are cognizable under the authority of the United States, except where it is or shall be provided otherwise by law. They have also concurrent jurisdiction with the district courts, of the crimes and offences, which are cognizable in those courtsa The crimes and offences, of which the district courts have jurisdiction, and of which, consequently, the circuit courts have concurrent jurisdiction, are all such as are cognizable under the authority of the United States, provided they be committed within the respective districts, or on the high seas; and provided they be those on which no other punishment than a fine not exceeding one hundred dollars, imprisonment not exceeding six months, or whipping not exceeding thirty stripes is to be inflicted.b
Treason generally occupies the first place in the long catalogue of crimes. On this subject, so interesting to the publick and to the citizens, a very important improvement has been ingrafted by the constitution of the United States.
If the description of treason be vague and indeterminate under any government; this alone will be a sufficient cause why that government should degenerate into tyranny. If the denomination and the penalties of treason be communicated to offences of a different and inferiour kind; the horrour, which would otherwise attend this complicated crime, is weakened by the association with things, to which, in truth, it has neither relation nor resemblance.
In the reign of Henry the eighth,2 a law was made in England by which any one, who predicted the death of the king, was declared guilty of treason. Arbitrary power, on some occasions, recoils upon those who exert it. When this capricious and tyrannical prince lay on his death bed, his physicians would not inform him of his danger, because they would not incur the penalties of his law. We are told by the English parliament itself, that, at another period, so many “pains of treason were ordained by statute, that no man knew how to behave himself, to do, speak, or say, for doubt of such pains.”
Under our national government, we have not only a legal, but a constitutional security against arbitrary and constructive treasons.
1. Under that government, treason against the United States can be committed only by levying war against them, or by adhering to their enemies, giving them aid and comfort.c
2. Misprision of treason consists in knowing the commission of treason, and not disclosing it, as soon as may be, to the president or some one of the judges of the United States, or to the first executive magistrate or some one of the judges or justices of a particular state.d
Other crimes and offences against the United States may be comprised under the following enumeration.—3. Wilful murder, committed in any place under the exclusive jurisdiction of the United States,e or upon the high seas, or in any river, haven, basin or bay not within the jurisdiction of any particular state.f 4. Manslaughter committed in any place under the exclusive jurisdiction of the United States,g or upon the high seas.h 5. Robbery committed upon the high seas, or in any river, haven or bay not within the jurisdiction of any particular state.i 6. The piratical and felonious running away with any vessel, or with any goods to the value of fifty dollars, or yielding up such vessel voluntarily to any pirate, by any captain or mariner of such vessel.j 7. The laying of violent hands, by a seaman, upon his commander, in order to hinder his fighting in defence of his ship or goods committed to his trust.k 8. The making of a revolt in a ship by any seaman.l 9. Piracy or robbery (as specified in the law) or any act of hostility against the United States or a citizen thereof, committed by any citizen upon the high seas, on pretence of authority from any person, or under colour of a commission from a foreign prince or state.m 10. Confederacy with pirates.n 11. The false making, altering, forging, or counterfeiting of any certificate, indent, or other publick security of the United States.o 12. The causing or procuring of any certificate, indent, or other publick security of the United States to be falsely made, altered, forged, or counterfeited.p 13. Acting or assisting willingly in the false making, altering, forging, or counterfeiting of any such certificate, indent, or other publick security.q 14. The uttering, putting off, or offering, in payment or for sale, of any such false, forged, altered, or counterfeited certificate, indent, or other publick security, with intention to defraud any person, and with knowledge that the same is false, altered, forged, or counterfeited.r 15. The causing of any such false, forged, altered, or counterfeited certificate, indent, or other publick security to be uttered, put off, or offered, in payment or for sale, with the knowledge and intention already mentioned.s 16. The setting at liberty by force, and the rescuing of any person, convicted of a capital crime, or, before conviction, committed for a capital crime, or committed for or convicted of any other offence.t 17. Misprision of felony, which consists in knowing the commission of wilful murder or other felony upon the high seas, or within any fort, arsenal, dock yard, magazine, or other place or district of country under the sole and exclusive jurisdiction of the United States, and not disclosing it as soon as may be to some one of the judges or other person in civil or military authority under the United States.u 18. The cutting off of the ear, the cutting out or disabling of the tongue, the putting out of an eye, the slitting of the nose, the cutting off of the nose or a lip, the cutting off or disabling of any limb or member of any person, unlawfully, on purpose and of malice aforethought, and with intention, in so doing, to maim or disfigure such person: provided these crimes be committed in any place under the exclusive jurisdiction of the United States, or upon the high seas, in any vessel belonging to the United States or to any citizen of the United States.v 19. Perjury committed wilfully and corruptly on oath or affirmation in any suit or matter before any court, or in any deposition taken pursuant to a law, of the United States.w 20. The procuring of any person to commit corrupt and wilful perjury in any of the cases just mentioned.x 21. The giving, directly or indirectly, of any sum of money, or any other bribe, present, or reward, or any promise, contract, obligation, or security for the payment or delivery of any money, present, or reward, or any other thing, to procure the opinion, judgment, or decree of any judge of the United States in any suit or matter depending before him.y 22. The accepting by any judge of any such sum of money, bribe, present, reward, promise, contract, obligation, or security.z 23. Oppression or extortion by any supervisor or officer of inspection, in the execution of his office.a 24. The landing, in any place within the limits of the United States, of goods entered for exportation, with a view to draw back the duties.b 25. The resisting or impeding of any officer of the customs, or any person assisting him, in the execution of his duty.c 26. The resisting or opposing, knowingly and wilfully, of any officer of the United States in serving or attempting to serve process of any court of the United States: and the assaulting, beating, or wounding of any officer, or other person duly authorized, in serving or attempting to serve such process.d 27. The felonious stealing, taking away, altering, falsifying, or otherwise avoiding of any record, writ, process, or other proceeding in any court of the United States, by means whereof any judgment shall not take effect, or shall be reversed or made void.e 28. The acknowledging or procuring to be acknowledged, in any court of the United States, of any recognizance, bail, or judgment, in the name of any person not privy or consenting to it. There is an exception with regard to attornies duly admitted.f 29. Taking and carrying away, with an intent to steal or purloin the personal goods of another, upon the high seas, or in any place within the exclusive jurisdiction of the United States.g 30. The embezzling, purloining, or conveying away of any victuals provided for any soldiers, gunners, marines, or pioneers, or of any arms, ordnance, munition, shot, powder, or habiliments of war, belonging to the United States, by any person having the charge or custody thereof; provided such embezzling, purloining, or carrying away be for lucre, or willingly, advisedly and of purpose to impede the service of the United States.h 31. The suing forth, or prosecuting, or executing of any writ or process, by which the person of any publick foreign minister, received as such by the president of the United States, or any domestick or domestick servant of any such minister, may be arrested or imprisoned, or his goods seized.i 32. The violation of any safe conduct or passport duly obtained under the authority of the United States.j 33. The assaulting, striking, wounding, imprisoning, or, in any other manner, infracting the laws of nations by offering violence to the person of a publick minister.k
In the foregoing catalogue, murder, manslaughter, robbery, piracy, forgery, perjury, bribery, and extortion are mentioned as crimes and offences; but they are neither defined nor described. For this reason, we must refer to some preexisting law for their definition or description. To what preexisting law should this reference be made?
This is a question of immense importance and extent. It must receive an answer; but I cannot, in this address, assign my reasons for the answer which I am to give—The reference should be made to the common law.
To the common law, then, let us resort for the definition or description of the crimes and offences, which, in the laws of the United States, have been named, but have not been described or defined. You will, in this manner, gentlemen, he furnished with a legal standard, by the judicious application of which you may ascertain, with precision, the true nature and qualities of such facts and transactions as shall become the objects of your consideration and research.
In our law books, murder is thus described: it is when a person, of sound memory and of the age of discretion, unlawfully killeth any reasonable creature with malice aforethought, express or implied. Manslaughter is described as—the unlawful killing of another, without malice, either express or implied. The distinction strongly marked between murder and manslaughter is, that the former is committed with, the latter, without malice aforethought. It is essential, therefore, to know clearly and accurately the true and legal import of this characteristick distinction.
There is a very considerable difference between that sense, which is conveyed by the expression, malice, in common language, and that, to which the term is appropriated by the law. In common language, it is most frequently used to denote a sentiment or passion of strong malevolence to a particular person; or a settled anger and desire of revenge in one person against another. In law, it means the dictate of a wicked and malignant heart; of a depraved, perverse, and incorrigible disposition. Agreeably to this last meaning, many of the cases, which are arranged under the head of implied malice, will be found to turn upon this single point; that the fact has been attended with such circumstances—particularly the circumstances of deliberation and cruelty concurring—as betray the plain indications and genuine symptoms of a mind grievously depraved, and acting from motives highly criminal; of a heart regardless of social duty, and fatally bent upon mischief. This is the true notion of malice in the legal sense of the word. The mischievous and vindictive spirit denoted by it must always be collected and inferred from the circumstances of the transaction. On the circumstances of the transaction, the closest attention should, for this reason, be bestowed. Every circumstance may weigh something in the scale of justice.
Robbery is a felonious and violent taking, from the person of another, of money or goods to any value, putting him in fear. From this definition it appears, that to constitute a robbery, the three following ingredients are indispensable. 1. A felonious intention, or animus furandi. 2. Some degree of violence and putting in fear. 3. A taking from the person of another. Upon each of these three points there is much learned disquisition in the books of the law.
Piracy is robbery and depredation upon the high seas. The word pirate, says my Lord Coke,l in Latin pirata, is derived from the Greek word πειρατης, which is again fetched from πειραι a transcundo mari, or roving upon the sea; and, therefore, in English, a pirate is called a rover or robber upon the sea.
Piracy is a crime against the universal law of society: a pirate is hostis humani generis, an enemy of the whole human race. By declaring war against all mankind, he has laid all mankind under the necessity of declaring war against him. He has renounced the benefits and protection of government and society: he has abandoned himself to a savage state of nature. The consequence is, that, by the laws of selfdefence, every community has a right to inflict upon him that punishment, which, in a state of nature, every individual would be entitled to inflict for any invasion of his person or personal property.
“If any person,” says a law of the United States, “shall commit, upon the high seas, or in any river, haven, basin, or bay, out of the jurisdiction of any particular state, murder, or robbery, or any other offence, which, if committed within the body of a county, would, by the laws of the United States, be punishable with death; every such offender shall be deemed, taken, and adjudged to be a pirate and felon, and being thereof convicted, shall suffer death.”m
Placed in the high and responsible office of a judge of the United States, I feel myself under an official obligation to state some doubts, which arise in my mind upon this part of the law. Impressed, as I ought to be, both as a citizen and a judge, with the strongest regard for the legislative authority of the United States, I propose those doubts most respectfully, and with the greatest degree of diffidence.
Piracy, as we have seen, is a crime against the universal law of society. By that law, it may be punished by every community. But the description of piracy, according to that law, is a robbery and depredation on the high seas. Is a murder, committed upon the high seas, a piracy within the description of that law? “If a pirate, at sea,n assault a ship, but, by force, is prevented entering her; and, in the attempt, the pirate kill a person in the other ship; they are all principals in such a murder, if the common law have jurisdiction of the offence; but by the law maritime, if the parties be known, they only who gave the wound shall be principals, and the rest, accessories.” From this authority and the foregoing description of piracy, taken jointly into our consideration, we might, perhaps, be naturally led to infer, 1. That a murder perpetrated in the attempt to commit a piracy, is not a piracy. 2. That this crime perpetrated in such an attempt, is, by the maritime law to be tried and punished as a murder, in which those, who all attempted the piracy, shall be considered as criminal in different degrees, according to the part, which they severally acted with regard to the homicide.
The maritime law is not the law of any particular country: it is the general law of nations. “Non erit alia lex Romae, alia Athenis; alia nunc, alia posthac; sed et apud omnes gentes et omni tempore una eademque lex obtinebit.”o3
The law of nations has its foundation in the principles of natural law, applied to states; and in voluntary institutions, arising from custom or convention. This law is universal in its authority over the civilized part of the world; and is supported by the consideration of its general utility, as well as that of its obligatory force. This universal system has always been most liberally recognized in that country, from which we derive the boasted inheritance of the common law. According to the clear opinion declared by the great Lord Chancellor Talbot,4 the law of nations is, in its full extent, a part of the law of England.p
True it is, that, so far as the law of nations is voluntary or positive, it may be altered by the municipal legislature of any state, in cases affecting only its own citizens. True it is also, that, by a treaty, the voluntary or positive law of nations may be altered so far as the alteration shall affect only the contracting parties. But equally true it is, that no state or states can, by treaties or municipal laws, alter or abrogate the law of nations any farther. This they can no more do, than a citizen can, by his single determination, or two citizens can, by a private contract between them, alter or abrogate the laws of the community, in which they reside.
Now the doubts, to which I have alluded, appear directly before us. Is a person, not a citizen of the United States, who shall commit a murder upon the high seas, liable, under this law, to be deemed, taken and adjudged to be a pirate and felon, and, as such, to suffer death? This question may be divided into two subordinate ones. 1. Was it the intention of the legislature, that this law should extend, in its operation, to persons not citizens of the United States? In the very next section, the phrase is altered, and instead of saying, if any person shall commit, it is said, if any citizen shall commit any piracy, &c. Shall the construction be, that the legislature mean the same thing, when they use expressions so very different? 2. On the supposition, that the law was designed to extend, in its operation, to persons not citizens of the United States; can this design be carried into effect, consistently with the predominant authority of the law of nations, and of the universal law of society?
The case may very probably happen, and come before a grand jury for their official investigation. It was proper to suggest my doubts concerning it. I hope I have suggested them in the manner which I proposed to myself.
I return to the definitions and descriptions given, by the common law, of the crimes and offences mentioned, but not described or defined, in the laws of the United States.
To forge, says my Lord Coke, is metaphorically taken from the smith, who beateth upon his anvil, and forgeth what fashion or shape he will. The offence is called crimen falsi; the crime of falsehood; and the offender, falsarius, a falsifier. And this is properly taken when the act is done in the name of another person.q With regard, however, to this last part of the description of forgery, it has been since adjudged repeatedly and very solemnly to be too narrow. It expresses, indeed, the most obvious meaning of the word, and comprehends that species of forgery which is most commonly practised; but there are other species, which will not come within the letter of that description. An alteration in the name or quantity of land conveyed, or in the sum of money secured, is of this kind, and comes within the legal notion of forgery.
Wilful and corrupt perjury is a crime committed, when a lawful oath is administered, in some judicial proceeding, by one who has authority, to a person who swears absolutely and falsely, in a matter material to the issue or cause in question.
“An oath,” says my Lord Coke, “is so sacred, and so deeply concerns the consciences of men, that it cannot be administered to any one, unless it be allowed by the common law, or by act of parliament; nor by any one, who has not authority by common law, or by act of parliament: neither can any oath, allowed by the common law, or by act of parliament, be altered, unless by act of parliament.”r For these reasons, it is much to be doubted whether any magistrate is justifiable in administering voluntary affidavits unsupported by the authority of law. It is more than possible, that, by such idle oaths, a man may frequently incur the guilt, though he evade the temporal penalties of perjury.
It is a part of the foregoing definition of perjury, that it must be when the person swears absolutely. In addition to this, it has been said, that the oath must be direct, and not, as the deponent thinks, or remembers, or believes.s This doctrine has, however, been lately questioned, and, it seems, on solid principles. When a man swears, that he believes what, in truth, he does not believe, he pronounces a falsehood as much as when he swears absolutely, that a thing is true, which he knows not to be true. My Lord Chief Justice De Grey,5 in a late case, said, that it was a mistake, which mankind had fallen into, that a person could not be convicted of perjury for deposing on oath, according to his belief.t It is certainly true, says my Lord Mansfield,6 that a man may be indicted for perjury, in swearing that he believes a fact to be true, which he must know to be false.u
Bribery is when a judge, or other person concerned in the administration of justice, takes any undue reward to influence his behaviour in office. He who offers or gives, as well as he who receives this undue reward, is guilty of an offence against the law.
Extortion, taken in a large sense, is any oppression by colour or pretence of right; but, in its proper sense, it is a great misprision, in wresting by any officer, under colour of his office, any money, either when none at all is due, or not so much is due, or when it is not yet due.
I have now enumerated, and, by references to the common law, have explained the crimes and offences known to the constitution and laws of the United States. It is next in order to consider the several punishments, which are annexed to those crimes and offences.
These punishments are of seven different kinds: disqualification for office—fine—imprisonment—whipping—pillory—incapacity to give testimony—death. To some crimes more kinds of punishment than one are assigned. To resistance of the officers of the customs is annexed a fine.v To the landing of goods entered for exportation imprisonment is the punishment allotted.w To briberyx and extortiony the punishments of disqualification, fine, and imprisonment are assigned. To misprision of treason,z manslaughter,a misprision of felony,b atrocious maiming,c a confederacy with pirates,d resistance against process,e a rescue of persons not convicted of any capital crime,f serving process for arresting a publick minister,g the violation of a safe conduct, and violence to the person of a publick minister,h are assigned the punishments of fine and imprisonment. Stealing or falsifying records, and fraudulently acknowledging bail, are punished with fine, imprisonment, and whipping.i Fine and whipping are the punishments annexed to larceny.j To perjury and subornation of perjury are allotted the punishments of fine, imprisonment, the pillory, and incapacity to give testimony.k
It deserves to be remarked, that, in every instance of punishment by fine, imprisonment, or whipping, limits are fixed on the side of severity; none, on the side of mercy.
Against forging,l against procuring or assisting to forge publick securities,m against uttering or causing to be uttered securities, which are forged,n against the rescue of persons convicted of capital crimes,o against piracy,p against robbery,q against acts of hostility as specified in the law,r against making a revolt in a ship, against violently hindering the captain of a vessel to fight in its defence, against piratically running away with any vessel,s against murder,t and against treason,u the punishment of death is denounced.
Accessories beforev the fact to murder, robbery, or other piracy upon the seas shall suffer death. Accessories afterw the fact shall be fined and imprisoned. Receivers of stolen goodsx shall be liable to like punishments as in the case of larceny.
It is proper to point out to a grand jury the kinds and the grades of punishments; because the respect due to the legislature will lead us to conclude, that there are similar kinds and well adjusted grades of crimes; because the probability of a crime is in the inverse proportion to its atrociousness; and because, of consequence, a grand jury will require a degree of evidence adequate to the criminality of every charge, which comes under their consideration.
No person shall be prosecuted for any capital crime, wilful murder or forgery excepted, unless the indictment for it shall be found within three years after its commission: nor shall any person be prosecuted for an offence not capital, or for a crime or forfeiture under a penal law, unless the indictment or information for it shall be found or instituted within two years after the commission of the offence, or after the fine or forfeiture has incurred. But these provisions shall not operate in favour of such as flee from justice.y
One, who is indicted of treason, shall have, at least three days before his trial, a copy of the indictment, and a list, containing the names and places of abode, of the jurors and of the witnesses to be produced on the trial. A person indicted for any other capital crime shall have, at least two entire days before his trial, such a list of the jury, and a copy of the indictment.z
The trial of all crimes shall be by jury.a
Every one indicted shall be allowed to make his full defence by counsel learned in the law. The court, or a judge of the court, before whom he is to be tried, shall, on his request, assign him counsel, such as he shall desire, but not exceeding two; and his counsel shall have free access to him at all seasonable hours. He shall also be admitted to make, in his defence, any proof, which he can produce by witnesses: to compel the attendance of his witnesses at his trial he shall have legal process, similar to that, which is granted to compel witnesses to appear on the prosecution against him.b
No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.c
The benefit of clergy shall not be used or allowed, upon the conviction of any crime, for which, by any statute of the United States, the punishment is or shall be declared to be death.d
The manner of inflicting the punishment of death shall be by hanging the person convicted, by the neck, until dead.e
No conviction or judgment for any offence, yet punishable by the laws of the United States, shall work corruption of blood, or any forfeiture of estate.f
I have now, gentlemen, given you an account, plain and concise, and yet, I hope, not altogether imperfect, of the criminal code of the United States. It will be interesting and instructive to compare this code, in some of its most remarkable regulations, with that of some other country. For this comparison, I select the criminal code of England. I select it, because, in other parts of Europe, it has been proposed as a model, on account of its mildness; and because, contrasted with many systems of criminal law, it is, indeed, comparatively mild. “That the English system of jurisprudence has its abuses, I will readily agree,” says a writer of a nation long the rival of England; “but that it has fewer abuses than the system of any other civilized country, is what I am able to prove.”g
It is the opinion of some writers, highly respected for their good sense, as well as for their humanity, that capital punishments are, in no case, necessary. It is an opinion, which I am certainly well warranted in offering—that nothing but the most absolute necessity can authorize them. Another opinion I am equally warranted in offering—that they should not be aggravated by any sufferings, except those which are inseparably attached to a violent death.h It was worthy only of a tyranti —and of a tyrant it was truly characteristick—to give standing instructions to his executioners, that they should protract the expiring moments of the tortured criminal; and should manage the butchering business with such studied and slow barbarity, as that his powers of painful sensation should continue to the very last—ut mori se sentiat.7
Hear from the mouth of a celebrated lawyer—celebrated, however, for his learning, more than for his humanity—the sentence pronounced against treason by the law of England: hear this sentence, full of horrours, represented as flowing from admirable clemency and moderation.
At the trial of the conspirators in the gun powder plot, Sir Edward Coke concluded the part which he acted as attorney general, in the following very remarkable manner.
The conclusion shall be drawn from the admirable clemency and moderation of the king, in that, howsoever these traitors have exceeded all others their predecessors in mischief, yet neither will the king exceed the usual punishment of the law, nor invent any new torture or torment for them; but is graciously pleased to afford them as well an ordinary course of trial, as an ordinary punishment, much inferiour to their offence. And surely, worthy of observation is the punishment provided and appointed for high treason. For first, after a traitor hath had his just trial, and is convicted and attainted, he shall have his judgment to be drawn to the place of execution from his prison, as being not worthy any more to tread upon the face of the earth whereof he is made: also for that he hath been retrograde to nature, therefore he is to be drawn backward at a horse tail. And whereas God hath made the head of man his highest and most supreme part, as being his chief grace and ornament; he must be drawn with his head declining downward, and lying so near the ground as may be, being thought unfit to take the benefit of the common air. For which cause also he shall be strangled, being hanged up by the neck, between heaven and earth, as deemed unworthy of both, or either; as likewise that the eyes of men may behold, and their hearts contemn him. Then he is to be cut down alive: his bowels and inlayed parts taken out and burnt, who inwardly had conceived and harboured in his heart such horrible treason. After, to have his head cut off, which had imagined the mischief. And, lastly, his body to be quartered, and the quarters set up in some high and eminent place, to the view and detestation of men, and to become a prey for the fowls of the air. And this is a reward due to traitors.j
I relieve your feelings by a custom which was observed among the Jews. They gave wine mingled with myrrh to a criminal at the time of his execution, in order to produce a stupor, and deaden the sensibility of the pain.
By the constitution of the United States, no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted. By the law of the United States, as it now stands, no judgment for any offence shall work corruption of blood or forfeiture of any estate.
In England, the forfeiture of a criminal’s personal estate accrues immediately upon his conviction of treason or felony. On his attainder for treason, he forfeits to the king all his lands of inheritance, and all his rights of entry to lands and tenements. On his attainder for felony, he forfeits his lands in fee simple to the crown for a year and a day; and the king may, within that time, commit what waste he pleases, by cutting timber, by ploughing meadows, by extirpating gardens, and by pulling down houses.
This uncivilized regulation, hostile to the genius of publick prosperity and improvement, is not, however, attended with any additional misfortune to the children of the prisoner. Their ruin is already completed by the corruption of their parent’s blood. This unnatural principle—I call it unnatural, because it dissolves, as far as human laws can dissolve, the closest and the dearest ties of nature—this unnatural principle effectually intercepts from them the descent of his lands of inheritance, which, after the king’s temporary right of forfeiture is satisfied, escheat to the lord of the fee.
Corruption of blood extends both upwards and downwards. A person attainted cannot inherit lands from his ancestors: he cannot transmit them to any heir: he even obstructs all descents to his posterity, whenever they must, through him, deduce their right from a more remote ancestor.
It has been alleged, in favour of forfeiture, that, since its effects extend to the family of the criminal as well as to himself, it will have a powerful operation to restrain a person from attempts against the state, not only by the fear of personal punishment, but also by his strongest natural affections. On a farther and closer investigation, however, it may, perhaps, be found, that this policy, as certainly it is not of the most generous, so neither is it of the most enlarged kind; since forfeitures, far from preventing, may have a tendency to multiply and to perpetuate offences and crimes.
When the law says, that the children of him, who has been guilty of crimes, shall be bereaved of all their hopes and all their rights of succession; that they shall languish in perpetual indigence and distress; that their whole life shall be one dark scene of unintermitted and unabating punishment; and that death alone shall provide for them a refuge from their misery—when such is the language, or such is the effect of the law; with what sentiments must it naturally inspire those, who are doomed to become its unfortunate, though unoffending objects? With sentiments of a deadly feud against the state, which has adopted, and which enforces it. To a law of this kind we may, with peculiar propriety, apply the maxim—une loi rigoreuse produit des crimes.8
In the United States, a period is assigned, beyond which crimes and offences, two excepted, cannot be prosecuted. This regulation is well calculated to establish and to preserve the security of individuals, and the tranquillity of the state. “Si post intervallum accusare (accusator) velit,” says Bracton,9 “non erit de jure audiendus, nisi docere poterit se fuisse justis rationibus impeditum.”k
The advantages of a copy of the indictment, of counsel at the trial, and of process to compel the appearance of the prisoner’s witnesses are enjoyed, in England, only in prosecutions for treason, but not in prosecutions for other crimes.
The greatness of those advantages may be easily estimated by contemplating the helpless, the forlorn and the anxious situation of a person, who is deprived of them in a trial for his life.
When the bill for regulating trials in cases of high treason was, in the reign of William the third, brought into parliament; that part of it, which allows counsel to the prisoner, was viewed, by the friends of freedom, as a matter of the last importance. The Lord Ashley,10 afterwards earl of Shaftesbury and author of the celebrated Characteristicks, was then a member of the house of commons. Actuated by that zeal for the principles of liberty, which accompanied him through life, he composed, as he was well qualified to compose, an excellent speech in support of that important provision. When he rose to deliver it, the great and respectable audience, before which he appeared, intimidated him to such a degree, that he lost his powers of recollection, and was incapable of pronouncing what he had previously prepared. The house, eager to hear him, waited with solicitude till he should recover from his embarrassment, and, after some time, called loudly upon him to proceed. He proceeded in this manner: “If I, sir,”—addressing himself to the speaker—“If I, sir, who rise only to give my opinion on the bill now depending, am so confounded, that I am unable to express the least of what I proposed to say; what must the condition of that man be, who, without any assistance, is pleading for his life?”l What must his condition be! Unacquainted with the nature and with the forms of the whole proceedings against him, unassisted by counsel, “baited by crown lawyers,” distracted by uncertainty and suspense, he finds a desperate but an eligible refuge in the awful verdict of conviction, which determines his fate.
Let us turn our eyes to a more pleasing prospect. How few are the crimes—how few are the capital crimes, known to the laws of the United States, compared with those known to the laws of England! Allowance, we own, should be made for the difference between the nature of the two governments; the objects of one being general; those of the other, enumerated. But after every allowance is made for this consideration, still we may justly say—how few are the crimes—how few are the capital crimes, known to the laws of the United States, compared with those known to the laws of England! When Sir William Blackstone11 wrote, no fewer than one hundred and sixty actions, which men are daily liable to commit, crowded the dismal list of felonies without benefit of clergy; in other words, felonies declared to be worthy of immediate death. Actions, almost inumerable, are doomed, by the same system, to severe, though inferiour penalties.
The co-acervation of sanguinary laws is a political distemper of the most inveterate and the most dangerous kind. By such laws the people are corrupted; and when corruption arises from the laws the evil may well be pronounced to be incurable; for it proceeds from the very source, from which the remedy should flow.
This comparison between the criminal laws of England and those of the United States might be carried much farther. The contrast would become still more and more striking; and, of course, the result would become still more and more satisfactory.
“How happy would mankind be,” says the eloquent and benevolent Beccaria,12m “if laws were now to be first formed!” The United States enjoy this singular happiness. Their laws are now first formed. They are formed by the legitimate representatives of free citizens and free states. Among those citizens and those states they now begin to be diffused. To those citizens and those states they are objects of the greatest and most extensive importance. I speak particularly concerning the criminal laws. It is on the excellence of the criminal laws, says the celebrated Montesquieu,n that the liberty of the citizens principally depends. The knowledge, continues he, which has been already acquired in some countries, and that which may be hereafter acquired in others, with regard to the surest rules which can be observed in criminal judgments, is more interesting to the human kind, than any thing else in the universe. It is only, adds he, on the practice of this knowledge that liberty can be founded.
With regard to an individual, every one knows how much his fortunes and his character, his infelicity or his happiness depend on his education. What education is to the individual, the laws are to the community. “Good laws,” says my lord Bacon, whose sentences are discourses, “make a whole nation to be as a well ordered college.”o With what earnestness should every nation—with what peculiar earnestness should that nation, which boasts of liberty as the principle of her constitution—with what peculiar earnestness should she endeavour, that her laws, especially her criminal laws, should be improved to a degree of perfection as high as human policy and human virtue can carry them!
We have already seen, that the noblest end and aim of criminal jurisprudence is to prevent crimes: and we have already seen that punishments, mild, speedy, and certain, are means calculated for preventing them. But these are not the only means. Crimes may be prevented by the genius as well as by the execution of the criminal laws. Let them be few: let them be clear: let them be be simple: let them be concise: let them be consummately accurate. Let the punishment be proportioned—let it be analogous—to the crime. Let the reformation as well as the punishment of offenders be kept constantly and steadily in view: and, while the dignity of the nation is vindicated, let reparation be made to those, who have received injury. Above all, let the wisdom, the purity, and the benignity of the civil code supersede, for they are well calculated to supersede, the severity of criminal legislation. Let the law diffuse peace and happiness; and innocence will walk in their train.
I offer no apology, gentlemen, for the nature or the length of this address. A sense of duty has drawn it from me. Every member of society should have it in his power to know when he is criminal and when he is innocent. His criminality and his innocence should be designated by the laws. The code of criminal laws, therefore, should, as far as possible, be in the hands of every citizen. In the situation, in which I have the honour to be placed, I deem it my duty to embrace every proper opportunity of disseminating the knowledge of them far and speedily. Can this be done with more propriety than in an address to a grand jury—to a grand jury summoned and returned for the body of an extensive district—a district so extensive and important as that of Virginia? These considerations induced me to lay before you an enumeration of the crimes and the punishments known to our constitution and laws. This I have endeavoured to do with the utmost conciseness.
But, if the laws deserve it, they should be the objects of affection as well as of knowledge. Thinking, as I think, concerning the high degree of regard, to which the criminal code of the United States has an undoubted claim, I am justified in expressing—I am obliged to express the principles, on which I conceive that claim to be founded. This I have likewise endeavoured to do with the utmost conciseness.
I mean not, however, to recommend to you an implicit and an undistinguishing approbation of the laws of your country. Admire; but admire with reason on your side.
If, for instance, you think, that the laws respecting the publick securities are more severe than is absolutely necessary for supporting their value and their credit; it will be no crime to express your thoughts decently and properly to your representatives in congress.
Permit me to suggest another method, by which our valuable code of criminal laws may be still increased in its value. Inform and practically convince every one within your respective spheres of action and intercourse, that, as excellent laws improve the virtue of the citizens, so the virtue of the citizens has a reciprocal and benign energy in heightening the excellence of the law.
How happy are the people, by whom the laws are known and rationally beloved! The rational love of the laws generates the enlightened love of our country. The enlightened love of our country is propitious to every virtue, which can adorn and exalt the citizen and the man.
[1. ]Draco provided Athens with its first written laws in c. 621 bc Under his code, many crimes were punished by death.
[a. ]Laws U. S. Cong. 1. sess. 1. c. 20. s. 11.
[b. ]Laws U. S. Con. 1. sess. 1. c. 20. s. 9.
[2. ]Henry VIII (1491–1547) was King of England from 1509 to 1547.
[c. ]Con. U. S. art. 3. s. 3.
[d. ]Laws U. S. Con. 1. sess. 2. c. 9. s. 2.
[e. ]Laws U. S. con. 1. sess. 2. c. 9. s. 3.
[f. ]Id. s. 8.
[g. ]Id. s. 7.
[h. ]Id. s. 12.
[i. ]Id. s. 8.
[j. ]Id. ibid.
[k. ]Laws U. S. con. 1. sess. 2. c. 9. s. 8.
[l. ]Id. ibid.
[m. ]Id. s. 9.
[n. ]Id. s. 12.
[o. ]Id. s. 14.
[p. ]Id. ibid.
[q. ]Id. ibid.
[r. ]Id. ibid.
[s. ]Id. ibid.
[t. ]Id. s. 23.
[u. ]Laws U. S. con. 1. sess. 2. c. 9. s. 6.
[v. ]Id. s. 13.
[w. ]Id. s. 18.
[x. ]Id. ib.
[y. ]Id. s. 21.
[z. ]Laws U. S. con. 1. sess. 2. c. 9. s. 21.
[a. ]Id. sess. 3. c. 15. s. 39.
[b. ]Id. sess. 2. c. 35. s. 59.
[c. ]Id. sess. 2. c. 35. s. 50.
[d. ]Id. sess. 2. c. 9. s. 22.
[e. ]Id. sess. 2. c. 9. s. 15.
[f. ]Id. ibid.
[g. ]Id. sess. 2. c. 9. s. 16.
[h. ]Laws U. S. con. 1. sess. 2. c. 9. s.16.
[i. ]Id. s. 25. 26.
[j. ]Id. s. 28.
[k. ]Id. ibid.
[l. ]3. Ins. 113.
[m. ]Laws U. S. 1. con. 2. sess. c. 9. s. 8.
[n. ]Molloy. c. 4. s. 13.
[o. ]2. Burr. 887.
[3. ]There will not be one law in Rome, another in Athens; one now, another later, but both among all peoples and at every time one and the same law will prevail.
[4. ]Charles Talbot, the first Baron Talbot of Hensol (1685–1737), was a famous English politician and jurist.
[p. ]3. Burr. 1481.
[q. ]3. Ins. 169.
[r. ]3. Ins. 165.
[s. ]Id. 166. 1. Haw. 175.
[5. ]William de Grey (1719–1781) was an English jurist who served as Soliciter General, Attorney General, and Lord Chief Justice of the common pleas.
[t. ]Leach. 304.
[6. ]William Murray (1705–1793) became the Earl of Mansfield in 1776. He had a distinguished political career in the House of Commons and in 1756 was appointed chief justice of the King’s bench.
[v. ]Laws U. S. con. 1. sess. 2. c. 35. s. 50.
[w. ]Id. s. 59.
[x. ]Id. sess. 2. c. 9. s. 21.
[y. ]Id. sess. 3. c. 15. s. 39.
[z. ]Id. sess. 2. c. 9. s. 2.
[a. ]Id. s. 7. 12.
[b. ]Id. s. 6.
[c. ]Id. s. 13.
[d. ]Id. s. 12.
[e. ]Id. s. 22.
[f. ]Id. s. 23.
[g. ]Id. s. 26.
[h. ]Id. s. 28.
[i. ]Id. s. 15.
[j. ]Id. s. 16.
[k. ]Id. s. 18.
[l. ]Laws U. S. con. 1. sess. 2. c. 9. s. 14.
[m. ]Id. ibid.
[n. ]Id. ibid.
[o. ]Id. s. 23.
[p. ]Id. s. 8.
[q. ]Id. ibid.
[r. ]Id. s. 9.
[s. ]Id. s. 8.
[t. ]Id. s. 3.
[u. ]Id. s. 1.
[v. ]Id. s. 10.
[w. ]Id. s. 11.
[x. ]Id. s. 17.
[y. ]Laws U. S. con. 1. sess. 2. c. 9. s. 32.
[z. ]Id. s. 29.
[a. ]Con. U. S. art. 3. s. 2.
[b. ]Laws U. S. con. 1. sess. 2. 9. s. 29.
[c. ]Con. U. S. art. 3. s. 3.
[d. ]Laws U. S. con. 1. sess. 2. c. 9. s. 31.
[e. ]Id. s. 33.
[f. ]Id. s. 24.
[g. ]War. The. L. Crim. 18.
[h. ]—See they suffer death,
[7. ]So that he may feel himself die.
[j. ]1. St. Tri. 243.
[8. ]A rigorous law produces crimes.
[9. ]Henry De Bracton (d. 1268) was a prominent judge who served on what would become known as the King’s bench. He is most famous for his work De legibus et consuetudinibus Angliae (On the Laws and Customs of England).
[k. ]Brac. 118 b. “If an accuser tries to bring an accusation after a period of time, he is not lawfully to be heard unless he can show he was previously hindered for just reasons.”
[10. ]Anthony Ashley Cooper (1671–1713) was the third Earl of Shaftesbury. John Locke educated him in his early youth, and later he became a great English politician, philosopher, and author.
[l. ]Gen. Dict. vol. 9. p. 179.
[11. ]William Blackstone (1723–1780) offered the first courses on English law at Oxford. His magisterial Commentaries on the Laws of England (4 vols. 1765–1769) provided a thorough synthesis of British common law at the time.
[12. ]Cesare Beccaria (1738–1794) wrote On Crimes and Punishments (1764). He was an advocate for reform of the criminal justice system and judiciary.
[m. ]Chap. 28.
[n. ]Sp. L. b. 12. c. 2.
[o. ]4. Ld. Bac. 9.