Front Page Titles (by Subject) CHAPTER I.: Of the Nature of Crimes; and the Necessity and Proportion of Punishments. - Collected Works of James Wilson, vol. 2
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CHAPTER I.: Of the Nature of Crimes; and the Necessity and Proportion of Punishments. - James Wilson, Collected Works of James Wilson, vol. 2 
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. 2.
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Of the Nature of Crimes; and the Necessity and Proportion of Punishments.
Hitherto, we have considered the rights of men, of citizens, of publick officers, and of publick bodies: we must now turn our eyes to objects less pleasing—the violations of those rights must be brought under our view. Man is sometimes unjust: sometimes he is even criminal: injuries and crimes must, therefore, find their place in every legal system, calculated for man. One consolatory reflection, however, will greatly support us in our progress through this uninviting part of our journey: we shall be richly compensated when we reach its conclusion. The end of criminal jurisprudence is the prevention of crimes.
What is an injury?—What is a crime?—What is reparation?—What is punishment?—These are questions, which ought to be considered in a separate, and also in a connected, point of view. At some times, they have been too much blended. In some instances, the injury and the reparation have been lost in the crime and the punishment. In other instances, the crime and the punishment have, with equal impropriety, been sunk in the reparation and injury. At other times, they have been kept too much apart. The crime has been considered as altogether unconnected with the injury, and the punishment as altogether unconnected with reparation. In other instances, the reparation only has been regarded, and no attention has been given to the punishment: the injury only has been calculated; but no computation has been made concerning the crime.
An injury is a loss arising to an individual, from the violation or infringement of his right.
A reparation is that, which compensates for the loss sustained by an injury.
A crime is an injury, so atrocious in its nature, or so dangerous in its example, that, besides the loss which it occasions to the individual who suffers by it, it affects, in its immediate operation or in its consequences, the interest, the peace, the dignity, or the security of the publick. Offences and misdemeanors denote inferiour crimes.
A punishment is the infliction of that evil, superadded to the reparation, which the crime, superadded to the injury, renders necessary, for the purposes of a wise and good administration of government.
Concerning an injury and a reparation, and the measures by which each of them ought to be estimated, it will not be necessary to say much; because, with regard to them, much confusion or mistake has not been introduced into the theory or practice of the law.
Concerning crimes and punishments, and concerning the relation between a crime and an injury, and between punishment and reparation, the case is widely different indeed. On those subjects, an endless confusion has prevailed, and mistakes innumerable have been committed. On those subjects, therefore, it will be proper to be full; and it will certainly be attempted—I promise not success in the attempt—to be both accurate and perspicuous.
From an inattention or a disregard to the great principle—that government was made for the sake of man, some writers have been led to consider crimes, in their origin and nature as well as in their degrees and effects, as different from injuries; and have, consequently, taught, that without any injury to an individual, a crime might be committed against the government. Suppose, says one of the learned commentators on Grotius, that one has done neither wrong nor injury to any individual, yet if he has committed something which the law has prohibited, it is a crime, which demands reparation; because the right of the superiour is violated, and because an injury is offered to the dignity of his character.a How naturally one mistake leads to another! A mistake in legislation produces one in criminal jurisprudence. A law which prohibits what is neither a wrong nor an injury to any one! What name does it deserve? We have seenb that a law which is merely harmless without being tyrannical, is itself a harm; and should be removed.
But this doctrine is unsupported by sound legal principle. Every crime includes an injury: every offence is also a private wrong: it affects the publick, but it affects the individual likewise. It is true indeed, that, in very gross injuries, we seldom hear of any satisfaction being awarded to the individual, for reasons, the propriety of which will, by and by, be examined. But in offences of an inferiour nature, the distinction, and, at the same time, the connexion between the crime and the injury is most accurately marked and preserved. For a battery, he who commits it may be indicted. Violence against the person of an individual is a disturbance of the publick peace. On this disturbance punishment may be inflicted. But in the crime and the punishment, the injury is not sunk, nor is the reparation lost. The party who has suffered the violence may bring his action against the party who has committed it: and recover in damages a satisfaction for the loss which has been sustained.
The doctrine, that a crime may be committed against the publick, without any injury being done to an individual, is as little consonant to the history, as it is to the principles of criminal jurisprudence. Among the Saxons, as we are informed by Mr. Selden, the most ancient way of proceeding, in criminal causes, was by an appeal of the party complaining. But afterwards, in cases which concerned damage, injury, or violence done to the body of a man or to his estate, the king—who represented the publick—was found to be therein prejudiced, beside the prejudice done immediately to the subject: and upon this ground, a way was found out to punish the offender by indictment, beside the satisfaction done to the party wronged.c
In the very early periods of society, those actions, even the most atrocious, which now are viewed and prosecuted as solely crimes against the state, were considered and resented merely as private injuries. In those ages, the conceptions of men were too crude to consider an injury done to an individual, as a crime committed against the publick; they viewed it only as a prejudice to the party, or the relations of the party, who were immediately affected. The privilege of resenting private injuries, in the opinion of a very ingenious writer on the history of the criminal law,d was that private right which was the latest of being surrendered to society. An improvement in government, so opposite to a strong propensity of human nature, could not have been instantaneous. The progressive steps leading to its completion were slow and almost imperceptible.
Coincident, in a very considerable degree, with these sentiments and observations, is a part of the law and practice of England, which at this moment subsists in its full force—I mean the law and practice concerning appeals, particularly appeals of death. An appeal is the party’s private action, seeking satisfaction for the injury done him; and at the same time, prosecuting for the crown in respect of the offence against the publick. On an appeal, the benign prerogative of mercy cannot be exercised; because, saith the law,e the plaintiff has an interest in the judgment. This interest, however, may be released; and the release will be a bar to the proceedings on an appeal.
These observations, drawn from so many separate sources, combine in the result, that a crime against the publick has its foundation in an injury against an individual. We shall see, in the progress of our investigation, that as, in the rude ages of society, the crime was too much overlooked; so, in times more refined, there has been a disposition, too strong, to overlook the injury.
Concerning the standard, by which crimes should be measured in municipal law, there has been much diversity of sentiment among writers, even the wisest and most enlightened. The law of nature, it is admitted on all hands, measures crimes by the intention, and not by the event. Should a standard, different from that which has been established by unerring wisdom, be adopted by uninformed man? Should not that rule, which is observed by the law divine, be observed, in humble imitation, by laws which are human? It is said, not; and it is said, that this difference must be accounted for by those peculiar attributes of the divine nature, which distinguish the dispensations of supreme wisdom from the proceedings of human tribunals. A being whose all-seeing eye observes the inmost recesses of the heart, and whose outstretched arm no flight or stratagem can elude or escape—such a being may consider and may punish every crime in exact proportion to the quantity of intrinsick guilt, which is contained in it. But with those to whom the trust and authority of human government is committed, the case is greatly different. Their power and their knowledge are limited by many imperfections: speed may remove, artifice may cover the object of punishment from their view or their grasp: by them, therefore, crimes must be considered in proportion to the ease and security with which they are committed or concealed, and not in strict proportion to their degrees of inherent criminality. Such, or nearly such, seem to be the sentiments of Mr. Paley.f
The Marquis of Beccaria goes farther: he thinks himself authorized to assert, that crimes are to be measured only by the injury done to society. They err, therefore, says he, who imagine that a crime is greater or less according to the intention of the person by whom it is committed; for this will depend on the actual impression of objects on the senses, and on the previous disposition of the mind; and both of these will vary in different persons, and even in the same person at different times, according to the succession of ideas, passions, and circumstances. Upon that system, it would be necessary to form, not only a particular code for every individual, but a new penal law for every crime. Men with the best intentions, do the greatest injury, and with the worst, the most essential services to society. That crimes are to be estimated by the injury done to society, adds he, is one of those palpable truths, which, though evident to the meanest capacity, yet, by a combination of circumstances, are known only to a few thinking men, in every nation and in every age.g
Sir William Blackstone, in one part of his Commentaries, seems to adopt these sentiments. All crimes, says he, are to be estimated according to the mischiefs which they produce in civil society.h
Mr. Eden,1 in one part of his book on the principles of penal law, tells us, agreeably to the same sentiments, that crimes are of temporal creation, and to be estimated in proportion to their pernicious effects on society:i in another part, he says, that, in some cases, it is necessary to punish the offence without any research into its motive; and that, in every case, it is impracticable for lawgivers to assume the divine attribute of animadverting upon the fact, only according to the internal malice of the intention:j in a third place, however, he expresses himself in the following manner: “It is true, that crimes are to be estimated, in some degree, by the actual mischief done to society; because the internal malignity of mankind is not within the cognizance of human tribunals. But if this position were received in its fullest latitude, it would prove too much; it would prove that every act of homicide is equally criminal; and that the intention is, in no case, to be considered:”k in a fourth place, he considers its flagitiousness as the standard, by which a crime should be measured; and informs us, that, by its flagitiousness, he means its abstract nature and turpitude, in proportion to which, the criminal should be considered as more or less dangerous to society:l in a fifth place, he intimates the same sentiment, that “the malignity of the fact is the true measure of the crime.”m
Is it not shocking to reason, says Mr. Dagge,2 and destructive of virtue, to contend, that the ill consequence of an act is more to be considered than its immorality? To disregard a crime, however heinous, because it may be supposed not to have a bad effect on society; and to punish slight offences severely, because they tend more immediately to disturb the publick peace, is to sacrifice moral equity to political expediency. But, in fact, there is no real necessity for making such a sacrifice. If we would effectually provide for the lasting peace of society, we should first regard private offences, which are the sources of publick crimes. The subtle distinctions, which casuists make between moral and political delinquencies, are offensive to common sense.n
Concerning the standard by which punishments should be measured in municipal law, there has been, as might be expected, as much diversity of sentiment, as concerning the standard for the measure of crimes.
Publick utility, says Mr. Eden, is the measure of human punishments; and that utility is proportioned to the efficacy of the example.o
Liberty, says Montesquieu,p is in its highest perfection, when criminal laws derive each punishment from the particular nature of the crime. Then the punishment does not flow from the capriciousness of the legislator, but from the very nature of the thing; and man uses no violence to man.
Among crimes of different natures, says Sir William Blackstone, those should be most severely punished, which are most destructive to the publick safety and happiness: and, among crimes of an equal malignity, those, which a man has the most frequent and easy opportunities of committing, which cannot be so easily guarded against as others; and which, therefore, the offender has the greatest inducement to commit.q
Much to the same purpose are the expressions of Mr. Paley—the punishment should be in a proportion compounded of the mischief of the crime, and the ease with which it is executed.r
The end of human punishment, says Mr. Paley, in another place, should regulate the measure of its severity.s To the propriety of this rule every one will subscribe; but it throws us back upon another, concerning which there is an equal variety and opposition of sentiment.
Criminals, says Plato in his book concerning laws, are punished, not because they have offended, for what is done can never be undone, but that they may not offend.t
The very learned Mr. Selden objects to this doctrine, and says, that the antecedent crime is the essence of punishment.u
The amendment of the criminal is assigned by some as the end of punishment. To put it out of his power to do future mischief, is the end proposed by others. To deter from the imitation of his example, is that proposed by a third class of writers. Reparation to the injured, is an end recommended by a fourth class.
Almost all agree, that between crimes and punishments there ought to be a proportion: but how can this proportion be fixed among those, who are so much at variance with regard to the measure of the objects, between which it confessedly ought to subsist.
If there is so much diversity and contrariety of opinion respecting the principles, how much greater diversity and contrariety of conduct may we expect to find with regard to the execution, of the criminal law. Nay, how often shall we find those rules violated in its practice, the propriety of which is agreed in its theory.
The theory of criminal law has not, till lately, been a subject of much attention or investigation. The Marquis of Beccaria led the way. His performance derives much importance from the sentiments and principles, which it contains: it derives, perhaps, more from those, which its appearance has excited in others. It induced several of the most celebrated literati in Europe to think upon the subject. The science, however, is, as yet, but in a weak and infantine state. To convince you that it is so, I need only refer you to the unsatisfactory, nay, the contradictory sentiments, of which I have given you an account, with regard to the two great heads of crimes and punishments. That account has been extracted from the most celebrated writers on the subject—from writers, indeed, who, on any subject, would deserve celebrity.
To give you a history of the practice of criminal law would be a task, not difficult, because the materials are very copious; but it would be very disgusting both to you and to me. I draw the character of this practice from one, who appears to have a head and a heart well qualified to feel and to judge upon the subject—I mean the Author of the principles of penal law. “The perusal of the first volume of the English State Trials,”v says he, “is a most disgustful drudgery.” “The proceedings of our criminal courts at this era”—meaning that which preceded the revolution—“are so disgraceful, not only to the nation, but to human nature, that, as they cannot be disbelieved, I wish them to be buried in oblivion. From oblivion, it is neither my duty nor inclination to rescue them.”—No; nor to rescue from oblivion the proceedings of other ages and of other countries, equally disgraceful and disgustful. I recite only a single instance.
Mr. Pope, in his picturesque and interesting retrospect of the barbarous reigns of the Conqueror and his son, asks, alluding to the laws of the forests—
Many, I dare say, have considered this as a fine fanciful description of the Poet. It has, however, been exceeded by the strict severity of fact. We are, in the Life of Mr. Turgot,3 told in plain and sober prose, that so rigorous were the forest laws of France even so lately, that a peasant, charged with having killed a wild boar, alleged as an alleviation of the charge, that he thought it was a man.x
In these lectures, I have had frequent occasion to observe and to regret the imperfection and the impropriety, which are seen too plainly in the civil codes and institutions of Europe: it is the remark—it is the just remark of Sir William Blackstone, that, “in every country of Europe, the criminal law is more rude and imperfect than the civil.”y Instead of being, as it ought to be, an emanation from the law of nature and morality; it has too often been avowedly and systematically the reverse. It has been a combination of the strong against the weak, of the rich against the poor, of pride and interest against justice and humanity. Unfortunate, indeed, it is, that this has been the case; for we may truly say, that on the excellence of the criminal law, the liberty and the happiness of the people chiefly depend.
By this time, you see very clearly, that I was well warranted to announce, even in the summary of my system, that the criminal law greatly needs reformation. I added—In the United States, the seeds of reformation are sown. Those seeds, and the tender plants which from some of them are now beginning to spring, let it be our care to discover and to cultivate. From those weeds, luxuriant and strong, with which they are still intermingled, and by which, if they continue so, they will indubitably be choked, let it be our business industriously to separate them. From those beasts of the forest, by whom, if left unguarded, they will unquestionably be devoured, let it be our effort vigorously to defend them.
In the fields of the common law, which, for ages past, have lain waste and neglected, some of those seeds and plants will, on an accurate inquiry, be found. In the gardens of the American constitutions, others, and the most choice of them, have been sown and planted by liberal hands.
The generical term used immemorially by the common law, to denote a crime, is felony. True indeed it is, that the idea of felony is now very generally and very strongly connected with capital punishment; so generally and so strongly, that if an act of parliament denominates any new offence a felony, the legal inference drawn from it is, that the offender shall be punished for it capitally. But this inference, whatever legal authority it may now have acquired, is by no means entitled to the merit of critical accuracy. At this moment, every felony does not, in England, receive a punishment which is capital: petit larceny is a felony. At this moment, one felony escapes in England, as it must in all other countries, every degree of punishment that is human: suicide is a felony. At the common law, few felonies, indeed, were punished with death.
Treason is now considered, both in legal and in vernacular language, as a species of crime distinct from that of felony; but originally it was not so considered. “In ancient time,” says my Lord Coke,z “every treason was comprehended under the name of felony.” Indeed it was so, down even to the time of Edward the third; for the famous statute of treasons, made in his reign, uses these expressions—“treason or other felony.”
It will be very important to ascertain the true meaning of a term, employed so extensively and so long by the common law, to convey the idea of a crime.
In order to ascertain the true meaning, it is frequently of importance to ascertain the true etymology, of a term; and in order to ascertain that of the term felony, much learned labour has been bestowed by juridical lexicographers and criticks.
Sir William Blackstone asserts that its original is undoubtedly feudal; and being so, we ought to look for its derivation in the Teutonick or German language; and he prefers that given by Sir Henry Spelman; according to whom, felon is taken from two northern words, fee, which signifies, as all know, the fief, feud, or beneficiary estate; and lon, which signifies price or value. Felony is, therefore, the same as pretium feudi, the consideration, for which a man gives up his fief; as we say, in common speech, such an act is as much as your life or estate is worth. “In this sense,” says Sir William, “it will clearly signify the feudal forfeiture, or act, by which an estate is forfeited or escheats to the lord.”a He mentions two other derivations, and adds—“Sir Edward Coke, as his manner is, has given us a still stranger etymology; that it is, ‘crimen animo fellco perpetratum,’4 with a bitter or gallish inclination.”b
The authority of Sir Henry Spelman, in matters of legal antiquity, is unquestionably respectable: it is unfortunate, on this as on many other occasions, that his Glossary, the work here cited, is not in my power; and, therefore, I cannot examine particularly what he says upon the subject.
Serjeant Hawkins,5 so noted for his painful accuracy and his guarded caution, cites, in his treatise of the pleas of the crown, both the places which are cited by the Author of the Commentaries. The Serjeant had probably examined both: he follows the description of my Lord Coke. From this, I infer one of the two things—that Mr. Hawkins either found something in the Glossary, which prevented his assent to the conclusion drawn from it, or preferred the authority of my Lord Coke to that of Sir Henry Spelman. Thus, on one side we find Sir Henry Spelman and Sir William Blackstone; on the other, my Lord Coke and Serjeant Hawkins. In each scale of authority the weight is great; but, in both, it is equal: the beam of decision inclines at neither end.
If an estate could be purchased, instead of being forfeited, by a felony, I can easily conceive how the crime might be viewed as the consideration of the purchase: if a fee signified a crime, instead of signifying a fief, I can easily conceive how the estate might be viewed as the value forfeited by its commission. But the “pretium feudi,”6 applied in the manner and arrangement in which the application is made here, appears, in my humble conception, to be etymology inverted. Thus stand the propriety and the authority of the derivation adopted by the Author of the Commentaries.
My Lord Coke, when he refers the meaning and the description of felony to the motive, and not to the event, to the disposition which produced it, and not to the forfeiture which it incurs, cites, in the margin, the authority of Glanville, the oldest book now extant in law, and two very ancient statutes; one made in the reign of Henry the third; the other in that of his son, Edward the first. With regard to Glanville, there must be some numerical mistake in the margin; for it refers us to the fifteenth chapter of the fourteenth book: in that book, there are only eight chapters. The statutes I have examined: you shall judge whether they support that meaning of felony, for the truth of which they are cited.
The first is the twenty fifth chapter of the statute of Marlbridge,7 which was made in the fifty second year of Henry the third. It is very short. “In future, it shall not, by our justices, be adjudged murder, where it is found misfortune only; but it shall take place as to such as are slain by felony—interfectis per feloniam—and not otherwise.” Felony is here put most obviously in a contrasted opposition to misfortune; intention to accident. But what is peculiarly unfortunate for the etymology of Sir William Blackstone, a forfeiture was incurred at that time, and, according to the reprehensible theory retained in England for the sake of fees and not for the sake of justice, a forfeiture is still incurred, where a homicide happens by misfortune,c as well as where it is committed feloniously. If felony, therefore, “signifies clearly,” as he says, “such a crime as works a forfeiture of the offender’s lands or goods,” the distinction mentioned in the statute would be absurd and ridiculous; referring felony to the principle, and not to the consequences of the fact, the provision in the statute is just and humane.
The other statute cited by my Lord Coke is the sixteenth chapter of Westminster the first, made in the third year of the first Edward. It distinguishes between those criminals who may be bailed, and those who ought not to be bailed. In the latter class are ranked those, who are taken for house burning feloniously done—“felonieusement fait.”—Does this direct our view to the punishment, or to the intention?
But I am able to produce instances still more ancient and still more strong. The Mirrour of Justices, as has been mentioned oftener than once, contains a collection of the law, chiefly as it stood before the conquest; and consequently before the feudal system was introduced into England. In that collection there is a chapter concerning incendiaries: they are thus described—Incendiaries are those who burn a city, a town, a house, a man, a beast or other chattels of their felony—“de leur felony,”—in time of peace for hatred or vengeance. Do the words of their felony describe that principle, which gives the ‘crime its “body and its form?” or do they relate to a feudal forfeiture, then unknown?
But to put the matter in a light still more striking and clear: in the next sentence, a case is supposed, in which the intention existed, the fact was committed; but the effect did not take place; and, consequently, the punishment was not to be inflicted: yet the action is said to be done feloniously. “If one puts fire to a man feloniously—felonieusement—so that he is scorched or hurt, but not killed by the fire; it is not a capital crime.”d
I suggest another argument, the legal force of which will, by every professional gentleman, be seen immediately to be irresistible. In every indictment for felony, the fact charged must be laid to have been done feloniously. To express this meaning, no other term in our language is legally adequate.e The antiquity of indictments, and the high authority of their essential forms, I pretend not to ascertain or to circumscribe.
But Sir William Blackstone, in this passage, is opposed not only by principle, by precedent, and by other authority; he is, I think, clearly opposed by his own. He says here, as we have seen, that felony clearly signifies the feudal forfeiture, or act, by which an estate is forfeited, or escheats to the lord. And yet, in another place,f he recommends great care in distinguishing between escheat to the lord, and forfeiture to the king; and traces them very properly to different sources. “Forfeiture of lands,” says he, “and of whatever else the offender possessed, was the doctrine of the old Saxon law, as a part of the punishment for the offence; and does not at all relate to the feudal system, nor is the consequence of any signiory or lordship paramount; but being a prerogative vested in the crown, was neither superseded nor diminished by the introduction of the Norman tenures; a fruit and consequence of which escheat must undoubtedly be reckoned. Escheat, therefore, operates in subordination to the more ancient and superiour law of forfeiture.
“The doctrine of escheat upon attainder, taken singly, is this, that the blood of the tenant, by the commission of any felony (under which denomination all treasons were formerly comprised) is corrupted and stained, and the original donation of the feud is thereby determined, it being always granted to the vassal on the implied condition of dum bene se gesscrit.8 Upon the thorough demonstration of which guilt by legal attainder, the feudal covenant and mutual bond of fealty are held to be broken, the estate instantly falls back from the offender to the lord of the fee, and the inheritable quality of his blood is extinguished and blotted out for ever. In this situation the law of feudal escheat was brought into England at the conquest, and in general superadded to the ancient law of forfeiture. In consequence of which corruption and extinction of hereditary blood, the land of all felons would immediately revest in the lord, but that the superiour law of forfeiture intervenes, and intercepts it in its passage; in case of treason for ever; in case of other felony, for only a year and a day; after which time, it goes to the lord in a regular course of escheat, as it would have done to the heir of the felon, in case the feudal tenures had never been introduced. And that this is the true operation and genuine history of escheats, will most evidently appear from this incident to gavelkind lands (which seem to be the old Saxon tenure) that they are in no case subject to escheat for felony, though they are liable to forfeiture for treason.”
Instead, therefore, of considering felony as a feudal forfeiture or escheat, we are here taught, and properly taught, to view them as flowing from different sources, and, in their operations, not only distinct, but incompatible.
Having thus traced the true meaning of felony, not to the event or part of the punishment, but to the principle and disposition from which it proceeds; our next step will be to ascertain, as plainly and as correctly as possible, the nature and character of that principle and disposition. It is characterized by the epithet felleo. Some derive it from the Latin verb fallo, which signifies, to deceive, others from the Greek word ϕηλος, which signifies an impostor or deceiver. In language, these derivations are different: in sentiment, they are the same. Perhaps they may lead us to as just a conception as can well be formed of felony—the generical term employed by the common law to denote a crime.
Without mutual confidence between its members, society, it is evident, could not exist. This mutual and pervading confidence may well be considered as the attractive principle of the associating contract. To place that confidence in all the others is the social right, to deserve that confidence from all the others is the social duty, of every member. To entertain a disposition, in which that confidence cannot with propriety be placed, is a breach of the social duty, and a violation of the social right: it is a crime inchoate. When an injury, atrocious in its nature, or evil in its example, is committed voluntarily against any one member, the author of that voluntary injury has, by his conduct, shown to all, that their right is violated; that his duty is broken; that they cannot enjoy any longer their right of placing confidence in him; that he entertains a disposition unworthy of this confidence; that he is false, deceitful, and treacherous: the crime is now completed.
A disposition, regardless of social duty to all, and discovered by an injury, voluntary, and atrocious or dangerous, committed against one—this is a crime against society. Neither the disposition separated from the injury, nor the injury separated from the disposition, constitutes a crime. But though both the ingredients are necessary, they have not an equal operation in forming that character, from which a crime receives its denomination. In the consideration of crimes, the intention is chiefly to be regarded.
As the injuries, and the breaches of social trust and confidence, which we have mentioned, may relate to a great variety of objects, and, in their own nature, may be more or less aggravated, it follows, that crimes may be distinguished into many different species, and are susceptible of many different degrees.
Some think, that, at common law, the disposition, separated from the injury, constituted a crime. The saying, that “voluntas reputabitur pro facto,”9 seems to have given rise to this opinion. On a close examination, however, it will, I imagine, appear, that, in all the cases, on which the opinion is founded, and from which the saying is drawn, an injury was done, though not the injury intended to be done.
A very ancient case is reported in the following manner. A man’s wife went away with her adulterer; and they compassed the death of the husband; and as he was riding towards the sessions of oyer and terminer and gaol delivery, they assaulted and beat him with weapons, so that he fell down as dead: upon this they fled. The husband recovered, and made hue and cry, and came to the sessions; and showed all this matter to the justices; and, upon the warrant of the justices, the woman and her adulterer were taken, indicted, and arraigned. All this special matter was found by a verdict; and it was adjudged, that the man should be hanged, and the woman burnt.g Here, indeed, the injury intended and compassed—for to compass is, in legal understanding, to intend—was not carried into complete execution: an atrocious injury, however, was perpetrated.
Another case is mentioned to the following purpose. A young man was arraigned, because he intended to have stolen his master’s goods, and came to his master’s bed, where he lay asleep, and, with a knife, attempted, with all his force, to have cut his throat; and, thinking that he had indeed cut it, fled; upon this, the master cried out; and his neighbours apprehended the young man. All this matter was found by a special verdict; and, in the end, the young man was adjudged to be hanged. Quia voluntas reputabitur pro facto.10 But upon this case it is to be observed, that there was much more than mere intention: a barbarous outrage was committed on the person of a man; and was even thought by the aggressor to have been fully completed in its most extreme extent. For the young man, it is said, thought that he had indeed cut his master’s throat. Accordingly, my Lord Coke says upon this subject, that it was not a bare compassing or plotting of the death of a man, either by word, or even by writing; but that some overt deed to manifest that compassing or plotting was necessary.
In a species of high treason, and in a species of felony, the rule is still observed—that the intention manifested by a degree of injury, though not the degree intended, constitutes the crime. This is the case in compassing the death of the king. Though this intention be not completed by his death; the crime is completed by what is called an overt act, manifesting that intention by injurious and disloyal conduct. Indeed this rule is so strictly observed in this species of treason, that, even when the intention is carried into full effect by putting the king to death, this completion itself, connected with the intention, is not considered as constituting the crime: it is viewed only as the injurious and overt act which manifests that intention. Agreeably to these principles, the regicides of Charles the first were indicted as compassing his death, and the fact of beheading him was specified and made use of as one of the overt acts to prove this compassing.h
The species of felony, in which the rule above mentioned still governs, is burglary. A burglar, says my Lord Coke, is, by the common law, a felon, who, in the night, breaketh and entereth into a mansion house of another, with intent to commit some felony within it.i The intention in this crime is to commit a felony; but, in order to constitute the crime, it is not necessary that the intention should be executed; the injurious acts done at the time and the place and in the manner described are sufficient: nay more; if the intention be completed by committing the felony, yet, if it be not committed at the time and the place, and in the manner described, it is not a burglary, though it is a felony of another species.
The foregoing cases, the view under which I have stated them, and the observations which I have drawn from them, show strongly the spirit of the common law in its estimation of crimes. In those cases, the felony or treason is traced to the malignity of the principle, not to the mischief of the consequences: the crime is constituted, though the event fail.
In other cases, indeed, the completion of the event is necessary to the constitution of the crime; but even in these, the intention is much more considered than the act. “Actus non facit reum, nisi mens sit rea,”j11 is, I believe, a rule of immemorial antiquity in the common law. If, indeed, it is an errour, as the Marquis of Beccaria alleges it to be, to think a crime greater or less according to the intention of him by whom it is committed, it is, in the common law, an errour of the most inveterate kind; it is an errour which the experience of ages has not been able to correct. “Justitia,” said Bracton many hundred years ago, “est voluntarium bonum; nec enim potest dici bonum proprie, nisi intercedente voluntate: tolle enim voluntatem; et erit omnis actus indifferens. Affectio quidem tua nomen imponit operi tuo. Crimen non contrahitur nisi voluntas nocendik intercedat. Voluntas et propositum distinguunt maleficia. Furtum omnino non committitur sine affectu furandi. In maleficiis spectatur voluntas et non exitus.”l12
But, on one hand as well as on the other, there is an extreme. The intention governs; the intention communicates its colours to the act: but the act—the injurious act must be done. Abstract turpitude is not, I apprehend, a subject of cognizance in a human forum. The breach of our duty to man and to society alone is the object of municipal reprehension. For those sentiments, for those principles, nay for those actions, by which no other member of society can be affected, no one member is accountable to the others. For such sentiments, for such principles, and for such actions, he is amenable only to the tribunal within, and the tribunal above him. In the human code we have seen it to be a rule, that without an injury there is no crime.
Let us not, however, confine our conceptions of injury to the loss or to the risk merely of property. Of injury, all our rights, natural and civil, absolute and relative, are susceptible. Every injurious violation, therefore, of any of those rights may lay the foundation of a crime. The strings of society are sometimes stretched in the nicest unison: strike one, and all emit a complaining tone. Is a single member of society menaced? He who threatens is bound in a recognisance to keep the peace towards every other citizen, as well as towards him, to whom the immediate cause of alarm was given.m
I have now traced and described the principles of the common law with regard to the measure of crimes. We have seen with what wise and experienced caution its rules are guarded from every extreme. The result seems to be, that the common law estimates crimes by the design chiefly, but pays a proportionate attention to the fact—by the malignity, without overlooking the injury, of the transaction. After ideal perfection in her calculations concerning those amounts and proportions she aspires not; she is satisfied with that practical degree of accuracy, which a long and careful experience can attain.
From the consideration of crimes I pass to the consideration of punishments. On this subject some rules, and some valuable ones too, may be gleaned from the principles and the practice of the common law; but we must have recourse chiefly to those which are founded on our new but improved political establishments, and to those which result from the general principles of criminal jurisprudence.
Every crime, we have seen, includes an injury: this I consider as a leading maxim in the doctrine of crimes. In the punishment of every crime, reparation for the included injury ought to be involved: this I consider as a leading maxim in the doctrine of punishments.
In this particular, the law of England is defective to a degree both gross and cruel. The father of a family, whose subsistance depends on his personal industry, is, in the arms of his wife, and amidst his surrounding children, stabbed by the order of an insolent and barbarous neighbour. The miserable sufferers by the event are the miserable witnesses of the crime. The assassin, who has ordered it, is opulent and powerful. To the honour of the English law and of its administration be it said, that no degree of opulence or power will purchase or command impunity to the guilty: this assassin will feel its avenging arm. But to the honour of the English law and of its administration can it be added, that every degree of injury shall find its proportioned degree of reparation; and that as the assassin is not above its power, so those who suffer by the assassination are not beneath its care? No. This addition cannot be made. The widow and the orphans, who were the witnesses of the crime and the sufferers by the loss, are recognized in the former, but not in the latter character. They attend to give their testimony on the trial. The rich culprit is condemned as he ought to be. They apply to obtain reparation for the loss—of the life? That is irreparable—of the industry of their husband and father, from the ample patrimony of the criminal, who occasioned the loss? To this application, reasonable and just, what is the answer which must be given in the spirit of the law? His property is forfeited by the crime; no funds remain to make you reparation for your loss. They are dismissed, without being reimbursed the expense of their attendance in consequence of their duty and the order of the law; for the king pays no costs. Can this be right?
It was, in ancient times, ordered otherwise and better. In the early part of our juridical history, we find that a part of the composition or forfeiture for homicide was given to the relations of the person deceased.n We find likewise, that, in those times, penalties in cases of personal injury had so far the nature of a civil redress, that they were given as a compensation to the person injured.p Thus it was among the ancient Saxons. Reparation, indeed, was one great object in the Anglo-Saxon system of criminal law. The principle may be traced to the Germans as described by Tacitus.q “Recipitque satisfactionem universa domus.”13 In one of the very early laws of Pennsylvania, it is directed that “those next of kin shall be considered in the loss occasioned by the death of the party killed.”r
Another quality of the Saxon jurisprudence in criminal matters deserves our attention—I add, our imitation: they inflicted very few capital punishments.s Such was the case, we are told, formerly in Scotland; such was it originally in Ireland; and such was it anciently in Wales.t
In every case before judgment, the Romans allowed an accused citizen to withdraw himself from the consequences of conviction into a voluntary exile. To this institution, the former practice of abjuration in England bore a strong resemblance. This was permitted, as my Lord Coke says, when the criminal chose rather “perdere patriam, quam vitam.”u14 On the same principles, a liberty was given, in Greece, to a person accused to disappear after his first defence, and retire into voluntary banishment—in the language of the English law, to abjure the realm after the indictment was found.v
Sabacos,15 one of the legislators of Egypt, went still further. He abolished capital punishments, and ordained, that such criminals as were judged worthy of death should be employed in the publick works. Egypt, he thought, would derive more advantage from this kind of punishment; which, being imposed for life, appeared equally adapted to punish and to repress crimes.w
Punishments ought unquestionably to be moderate and mild. I know the opinion advanced by some writers, that the number of crimes is diminished by the severity of punishments: I know, that if we inspect the greatest part of the criminal codes, their unwieldy size and their ensanguined hue will force us to acknowledge, that the opinion has been general and prevalent. 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 the 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.
The result of those combined emotions, operating vigorously in concert, may be easily conjectured. 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 course, 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 further 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.
The principles both of utility and of justice require, that the commission of a crime should be followed by a speedy infliction of the 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, as 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 the judges nor jurors may, at the trial, act under the fascinating impressions of sentiments conceived before the evidence is heard, instead of the calm influence of those which should be 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. The constitution of Pennsylvaniax declares, that in all criminal prosecutions, the accused has a “right to a speedy trial.”
The certainty of punishments is a quality of the greatest importance. 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 the example or by the 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.
By this rule, important as well as general, I mean not to exclude the pardoning power from my system of criminal jurisprudence. That power ought to continue till the system and the proceedings under it become absolutely perfect—in other words—it ought to continue while laws are made and administered by men. But I mean that the exercise of the pardoning power should be confined to exceptions, well ascertained, from the general rule. Confined in this manner, instead of shaking the truth or diminishing the force of the rule, the exercise of the power to pardon will confirm the former and increase the latter.
Need I mention it as a rule, that punishments ought to be inflicted upon those persons only, who have committed crimes—that the innocent ought not to be blended in cruel and ruinous confusion with the guilty?
Yes; it is necessary to mention this as a rule: for, however plain and straight it is, when viewed through the pure and clear ether of reason and humanity, it has not been seen by those whom pride and avarice have blinded; nay, it has been represented as a rule, crooked and distorted, by those who have beheld it through the gross and refracting atmosphere of false policy and false philosophy. The doctrines of forfeiture and corruption of blood have found their ingenious advocates, as well as their powerful patrons.
There have been countries and times—there still are countries and times, when and where the rule, founded in justice and nature, that the property of the parent is the inheritance of his children, has been intercepted in its benign operation by the cruel interference of another rule, founded in tyranny and avarice—the crimes of the subject are the inheritance of the prince. At those times, and in those countries, an insult to society becomes a pecuniary favour to the crown; the appointed guardian of the publick security becomes interested in the violation of the law; and the hallowed ministers of justice become the rapacious agents of the treasury.
A poisoned fountain throws out its bitter waters in every direction. This rule, hostile to the nearest domestick connexions, was unfriendly also to the safety of the publick. If the inheritance was reaped by the prince; it was, by him, deemed a matter of small moment, that impunity was stipulated for the crime. Accordingly, we are told, that, in the thirteenth century, one of the methods, by which the kings of England and of other parts of Europe supplied their exchequers, was the sale of pardons for crimes.y When crimes were the sources of princely wealth, it is no wonder if they were objects of princely indulgence. In this manner we may naturally account for the disorder and violence, which, in those ages, prevailed so universally over Europe.
The law of forfeiture it has been attempted to defend by considerations drawn from utility, and also from natural justice. The high authority of Cicero is alsoz produced upon this occasion—“Nec vero me fugit, quam sit acerbum, parentum scelera filiorum poenis lui; sed hoc praeclare legibus comparatum est, ut caritas liberorum amiciores parentes reipublicae redderet.”a Amicus Cicero—sed magis amica veritas.16 For the high authority of Cicero, I certainly entertain a proportionate degree of respect; but implicit deference should be paid to none. Besides; in the passage quoted, Cicero does not speak in a character of authority. He decides not as a judge: he pleads his own cause as a culprit; he defends, before Brutus, a rigorous vote, which he had given in the senate, against the sons of Lepidus.17
But farther; upon a closer investigation, it will, perhaps, be found, that the principle of policy, on which Cicero rests his defence, as it certainly is not of the most generous, neither is it of the most enlarged kind; since forfeitures, far from preventing publick crimes and publick dangers, may have the strongest tendency to multiply and to perpetuate both. 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 inheritance; that they shall languish in perpetual indigence and distress; that their whole life shall be one dark scene of punishment, unintermitted and unabating; and that death alone shall provide for them an asylum from their misery—when such is the language, or such is the effect of the law; with what sentiments must it inspire those, who are doomed to become its unfortunate though unoffending victims?—with what sentiments must it inspire those, who from humanity feel, or by nature are bound to take, an interest in the fortunes and in the fate of those victims, unfortunate though unoffending? With sentiments of pain and disgust—with sentiments of irritation and disappointment—with sentiments of a deadly feud against the state which has adopted, and, perhaps, against the citizens also who have enforced it.
Vain is the attempt to range the cold and timid suggestions of policy against the vivid and the indelible feelings of nature, and against the warm though impartial dictates of humanity. Who will undertake to satisfy an innocent son, that he is the victim—who will undertake to persuade his relations—his virtuous—his patriotick—his meritoriously patriotick relations, that one so nearly connected with them is the victim, whom the publick good indispensably demands to be offered up as a sacrifice to atone for the guilt of his father? The sons of Lepidus were the children of the sister of Brutus. “Contra patrem Lepidum Brutus avunculus,”18 says he very naturally in his answer to Cicero.
An attempt has been likewise made to support the law of forfeiture on the foundation of natural justice.b “All property,” says Sir William Blackstone,c “is derived from society, being one of those civild rights which are conferred upon individuals, in exchange for that degree of natural freedom, which every man must sacrifice when he enters into social communities. If therefore a member of any national community violates the fundamental contract of his association, by transgressing the municipal law, he forfeits his right to such privileges as he claims by that contract; and the state may very justly resume that portion of property, or any part of it, which the laws have before assigned him. Hence in every offence of an atrocious kind, the laws of England have exacted a total confiscation of the movables or personal estate; and in many cases a perpetual, in others only a temporary, loss of the offender’s immovables or landed property; and have vested them both in the king, who is the person supposed to be offended, being the only visible magistrate in whom the majesty of the publick resides.”
It has often been said, that, at elections, the people of England sell their liberty for their own money; but this, I presume, is the first time that this kind of exchange has been brought forward as a fundamental article of their original contract.
A philosophizing is, on some occasions, an unfortunate turn. It was, we are told, an opinion long received in China, that the globe of the earth was supported on the back of an elephant. The people were satisfied and inquired no farther. An ingenious philosopher, however, was not satisfied so easily. If the earth, reasoned he, must be supported on the back of an elephant, pari ratione,19 the elephant must stand on the back of something else. Exactly fitted for his design, he found a broad backed tortoise. He placed the elephant upon it, and published his new theory of the manner in which the globe was supported. Unfortunately, the spirit of his ars philosophandi20 caught; and he was asked—on whose back will you place the tortoise? To this a satisfactory answer is not yet found in the history of this Chinese philosophy.
The sceptres of princes required a support: the political creed of Europe rested them on forfeitures. The people paid and inquired not. But the attempt is now made to find a rational foundation for forfeitures: they are rested on property as a civil, and not as a natural right.
In both instances, the mistake was made, and the wrong direction was pursued, in the first step which was taken. Forfeitures for crimes, according to the true principles of political philosophy, were a foundation as improper for the revenue of princes, as an elephant, according to the true principles of natural philosophy, was inadequate to sustain the weight of the globe.
But the investigation of the doctrine—that property is a civil right—will, as I have already mentioned, find its appropriated place in the second division of my system.
The observations which we have made are equally applicable to the forfeiture of dower, as to the forfeiture of inheritance.
Corruption of blood is another principle, ruinous and unjust, by which the innocent are involved in the punishment of the guilty. It 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.e
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 was introduced by the feudal system, pregnant with so many other principles of the most mischievous kind: and it still continues to disgrace the criminal jurisprudence of England. It begins now, however, to be very generally deserted as to its principle. The ingenious and elegant Mr. Eden, who seems to cling to forfeiture, at least in a qualified degree, as “to a branch of the penal system, which will not be suffered to fall from the body of our law, without serious consideration,”f admits very freely, that it is not so easy to reconcile, either to reason or benevolence, that corruption of blood, by which the inheritable quality is for ever extinguished.g Sir William Blackstone intimates a very laudable wish, that the whole doctrine may, in England, be antiquated by one undistinguishing law.h
This subject of extending punishments beyond the guilty, I conclude with a passage from one of the laws of Arcadius21 and Honorius,22 the Roman emperours. “Sancimus ibi esse paenam, ubi et noxa est; propinquos, natos, familiares, procul a calumnia submovemus, quos reos sceleris societas non facit. Nec enim affinitas, vel amicitia, nefarium crimen admittunt; peccato igitur suos teneant auctores; nec ulterius progrediatur metus quam reperiatur delictum.”i23
As the punishment ought to be confined to the criminal; so it ought to bear a proportion, it ought, if possible, to bear even an analogy, to the crime.j This is a principle, the truth of which requires little proof; but the application of which requires much illustration.
“It is not only,” says the Marquis of Beccaria, “the common interest of mankind that crimes should not be committed; but it is their interest also that crimes of every kind should be less frequent, in proportion to the mischief which they produce in society. The means, therefore, which the legislature use to prevent crimes, should be more powerful in proportion as they are destructive of the publick safety and happiness. Therefore there ought to be a fixed proportion between punishments and crimes.” “A scale of crimes,” adds he, “may be formed, of which the first degree should consist of such as tend immediately to the dissolution of society; and the last, of the smallest possible injustice done to a private member of that society.”k
To a scale of crimes, a corresponding scale of punishments should be added, each of which ought to be modified, as far as possible, according to the nature, the kind, and the degree of the crime, to which it is annexed. To select, where it can be done, a punishment analogous to the crime, is an excellent method to strengthen that association of ideas, which it is very important to establish between them.
In the graduation of reach of these scales, and in the relative adjustment between them, a perfect accuracy is unquestionably unattainable. The different shades both of crimes and of punishments are so numerous, and run so much into one another, that it is impossible for human skill to mark them, in every instance, distinctly and correctly. How many intervening degrees of criminality are there between a larceny of the petty kind and a robbery committed with every degree of personal insult and outrage—between a private slander and a publick inflammatory libel—between a simple menace and a premeditated murder—between an unfounded murmur and a daring rebellion against the government?
But though every thing cannot, much may be done. If a complete detail cannot be accomplished; certain leading rules may be established: if every minute grade cannot be precisely ascertained; yet the principal divisions may be marked by wise and sagacious legislation. Crimes and punishments too may be distributed into their proper classes; and the general principles of proportion and analogy may be maintained without any gross or flagrant violation.
To maintain them is a matter of the first moment in criminal jurisprudence. Every citizen ought to know when he is guilty: every citizen ought to know, as far as possible, the degree of his guilt. This knowledge is as necessary to regulate the verdicts of jurors and the decisions of judges, as it is to regulate the conduct of citizens. This knowledge ought certainly to be in the possession of those who make laws to regulate all.
“Optima est lex,” says my Lord Bacon, “quae minimum relinquit arbitrio judicis.”l24 If this is true with regard to law in general; it must be very true, and very important too, with regard to the law of crimes and punishments. What kind of legislation must that have been, by which “not only ignorant and rude unlearned people, but also learned and expert people, minding honesty, were often and many times trapped and snared!” Yet such is the character of the criminal legislation under Henry the eighth, given by the first parliament assembled in the reign of his daughter Mary;m which could well describe, for it still smarted under the legislative rod. The candour, at least, of legislation should be inviolable.
“Misera est servitus, ubi jus est incognitum.”25 When a citizen first knows the law from the jury who convict, or from the judges who condemn him; it appears as if his life and his liberty were laid prostrate before a new and arbitrary power; and the sense of general safety, so necessary to the enjoyment of general happiness, is weakened or destroyed. But a law uncertain is, so far, a law unknown. To punish by a law indefinite and unintelligible!—Is it better than to punish without any law?
A laudable, though, perhaps, an improvable degree of accuracy has been attained by the common law, in its descriptions of crimes and punishments. On this subject, I now enter into a particular detail. To the description of each crime, I shall subjoin that of its punishment; and shall mention, as I proceed, the alterations introduced by the constitution and laws of the United States and of Pennsylvania. The laws of other nations will frequently be considered in a comparative view.
[a. ]2. War. Bib. 15.
[b. ]Ante. vol. 2. p. 1045.
[c. ]Bac. on Gov. 53.
[d. ]Kaims. Hist. L. Tr. 19, 20.
[e. ]5. Rep. 506.
[f. ]2. Paley, 291. 292.
[g. ]Bac. c. 7. 8.
[h. ]4. Bl. Com. 41.
[1. ]The first Baron Auckland, Sir William Eden (1745–1814), wrote Principles of Penal Law (1771).
[i. ]Eden. 89.
[j. ]Id. 12.
[k. ]Eden. 12.
[l. ]Id. 8.
[m. ]Id. 10.
[2. ]Henry Dagge wrote Considerations on Criminal Law about 1772.
[n. ]1. Dag. 335. 343.
[o. ]Eden. 151.
[p. ]Sp. L. b. 12. c. 4.
[q. ]4. Bl. Com. 16.
[r. ]2. Paley. 290.
[s. ]Id. 287.
[t. ]1. Dag. 203. Eden. 6.
[u. ]1. Dag. 203.
[v. ]Eden. 199.
[w. ]Windsor Forest.
[3. ]Anne Robert Jacques Turgot, Baron de l’Aune (1727–1781), was a French statesman and economist.
[x. ]Pri. Lect. 297.
[y. ]4. Bl. Com. 3.
[z. ]3. Ins. 15.
[a. ]4. Bl. Com. 95. 96.
[4. ]A crime committed with malicious or evil intent.
[b. ]4. Bl. Com. 95. 1. Ins. 391 a.
[5. ]William Hawkins (1673–1746) wrote A Treatise of the Pleas of the Crown (1716).
[6. ]The price of a fief or fee.
[7. ]The Statute of Marlbridge (or Marlborough) is the oldest British law never to have been repealed. King Henry III of England passed the law in 1267.
[c. ]4. Bl. Com. 188.
[d. ]4. Cou. Ang. Nor. 504.
[e. ]1. Haw. 65.
[f. ]2. Bl. Com. 251. 252.
[8. ]As long as he should well behave himself—during good behavior.
[9. ]The will is regarded as the deed.
[g. ]3. Ins. 5.
[10. ]Because the will is regarded as the deed.
[h. ]Kel. 8.
[i. ]3. Ins. 63.
[j. ]3. Ins. 6.
[11. ]An act does not render one guilty, unless the mind is guilty. At common law, a crime possessed the element of an evil intention together with an unlawful intent and, consonant with the maxim, a crime is not committed if the mind of the person doing the unlawful act is innocent, and therefore a guilty intent must be proved.
[k. ]Brac. 26.
[l. ]Id. 136 b.
[12. ]Justice is a voluntary good, for it cannot be strictly called good, unless with the will interceding; for take away the will, and every act will become neither good nor evil. Your desire gives the name to your act. No crime is committed unless the desire of doing wrong enter in. Desire and purpose distinguish crimes. No theft is ever committed without the desire to steal. In wrongdoings the desire is to be scrutinized and not the result.
[m. ]4. Bl. Com. 250.
[n. ]2. Henry 289. 2. Dag. 90. Eden. 217.
[p. ]1. Reev. 12.
[q. ]De. Mor. Germ. c. 21. 2. Dag. 77.
[13. ]The entire household receives satisfaction.
[r. ]R. O. Book A. p. 49.
[s. ]4. Bl. Com. 406.
[t. ]1. Whitak. 278.
[u. ]Eden. 31.
[14. ]To lose his fatherland, than his life.
[v. ]2. Gog. Or. L. 72.
[15. ]Shabaka (Sabacos) ruled Egypt from 721 to 707 bc
[w. ]3. Gog. Or. L. 15.
[x. ]Art. 9. s. 9.
[y. ]Bar. on St. 27.
[z. ]4. Bl. Com. 375.
[a. ]Ep. ad Brut. 12.
[16. ]Nor indeed has it escaped my notice, what a harsh thing it is to pay for the crimes of parents through the punishment of their sons. But this has most plainly been provided for by the laws, that the love for their children might render parents more loving toward the commonwealth. “Dear is Cicero, but dearer Truth.”
[17. ]Likely refers to Marcus Aemilius Lepidus (?–12 bc), a political ally of Julius Caesar and triumvir with Marcus Antonius and Octvanianus.
[18. ]In contrast to their father Lepidus, Brutus is their uncle.
[b. ]4. Bl. Com. 375.
[c. ]1. Bl. Com. 299.
[d. ]4. Bl. Com. 9.
[19. ]For like reason; by the same reasoning.
[20. ]Philosophical art or science.
[e. ]4. Bl. Com. 381.
[f. ]Eden 48.
[g. ]Id. 39.
[h. ]4. Bl. Com. 382.
[21. ]Flavius Arcadius (377/78–408) was the Eastern Roman Emperor from 395 to 408.
[22. ]Flavius Augustus Honorius (384–423) was the Western Roman Emperor from 395 to 423. It was during his reign that the Visigoths sacked Rome (410).
[i. ]Eden. 49.
[23. ]We deem it sanctioned that the punishment should lie where the guilt is; relations, children, friends we keep far removed from any calumny, whom mere social intercourse does not make guilty of the crime; for neither blood relationship nor friendship incurs a nefarious charge. Therefore let sins bind only their own doers, and let fear proceed no further than wrongdoing is proved.
[j. ]Id. 83.
[k. ]Bec. c. 6. p. 17. 19.
[l. ]1. Ld. Bac. 249.
[24. ]That law is best which leaves the least to the decision of the judge.
[m. ]St. 1. Mary. c. 1.
[25. ]Wretched is the thraldom where the law is either uncertain or unknown.