sity of defending the liberty of all entrusted to his care, from the usurpation of individuals; and punishments are just, in proportion as the liberty preserved by the sovereign is sacred and valuable."

The sources of crime may be found in the nature of the hu- Sources of man species, and in the organization of society. The operation of Crime. the passions, (viz. pride, envy, hatred, malice, ambition, anger, lust, revenge, &c.) upon the conduct of individuals, are fruitful sources of crime of every dye. The passions being part of our nature, are injurious only when carried to excess. It is the business of the lelegislature not to exterminate, but to modify them by education, that the effects, from their irregularity and violence, may be avoided. Education is to the individual what good laws are to the whole community. "When the government is most just and equal, the citizens will be most virtuous, and, consequently, most happy, As we remove the causes which inflame pride, envy, ambition, &c. we prevent the consequences of them-treachery, rapine, and slaughter."

The difference in the situation and condition of individuals is another source of crime. Man can hardly bear a superior. Notwithstanding nature and society have pointed out a pre-eminence among the human species, yet mankind are ever persuading themselves that the disproportion is merely accidental and unjust. "There is," says Dagge, in his considerations on criminal law, p. 158. “in human nature a restless spirit of competition, which begets in men a design of equal distinction and power with others exalted above them; and they conceive that an addition of riches and authority will afford them an increase of happiness. Under these circumstances, should urgent necessity instigate the wretched to injustice, may it not be asked, whether their crimes are not, in some measure, the natural consequences of their unequal lot in society?” These reflections cannot apply with much force to this country. The happy equality which prevails among the citizens of the United States is such as to afford the patriot and legislator the best assurance of the efficacy of mild laws and moderate punishments.

Writers on criminal law have all complained of the arrangement in the degrees of crimes and punishments. They insist that crimes against religion and morals should be first considered; as religion and morality are the foundation of all law.

Puffendorf and Montesquieu make the following syllabus ofcrimes: 1st. Those which directly tend to dishonour the Supreme Being. 2d. Those which are offensive to society-against morality, &c. 3d. Crimes against individuals-affecting life or member. 4th. Crimes against private families, of which matrimony is the support-adultery, &c.

5th. Crimes against the fame and reputation of individuals.

We have reversed this order. And it must be acknowledged to be extremely difficult to fix a standard by which crimes can be measured in the municipal laws of any country. There has been a great diversity of sentiment among jurists upon this subject. The conclusion of the majority of them seems to have been, that all crimes are to be estimated according to the mischiefs which they produce

Degrees of
Crime,

Punishment.

1st. Should be moderate.

in civil society. Those desirous of looking into this subject, may consult Paley, 291, 292. Bacc. on Crimes, 78. Eden. 10. 12. Dagge, 335. 343. 4 Blac. Com. 41.

The principal object of punishment being to deter others from
offending, it is the right and duty of government to punish crimes.
But the sovereign power has no right to take away the life of a fel-
low being for slight offences. The following axioms, in criminal
jurisprudence, may be laid down with some degree of certainty.
1st. The degree of punishment should be moderate, or at least
not above the crime.

2d. Punishment should immediately follow the crime.
3d. Punishment should be certain.

By a reference to the greatest part of the criminal codes on the continent of Europe, we shall find them merciless and sanguinary. They create an aversion to the law, and a contempt for the administrators of it. 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 heart. 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. 3 Wils. Lec. 358.

If punishments be very severe, men are led to the perpetration of other crimes, to avoid the punishment due to the first. In countries and times most notorious for severity of punishments, were always those in which the most bloody and inhuman actions, and the most atrocious crimes, were committed; for the hand of the legislator and the assassin were directed by the same spirit of ferocity; which, on the throne, dictated laws of iren to slaves and savages, and, in private, instigated the subject to sacrifice one tyrant to make room for another. It is an axiom in criminal jurisprudence, invariably fixed by the improvements of modern times, that a punishment, to produce the effect required, it is sufficient that the evil it occasions should exceed the good expected from the crime; including in the calculation the certainty of the punishment, and the privation of the expected advantage. All severity beyond this is superfluous, and therefore tyrannical. The extent and degrees of punishment are marked out with accuracy and judgment by Mr. Bentham, in his "Theorie des Peines et des Recompenses." The analysis of it may be seen in the Edinburgh Review, No. 43.

He says, "The next subject for discussion, comprehends the principles that ought to regulate the extent of punishment for the prevention of crimes. These are contained in the following propositions.

"1st. The evil of the punishment must exceed the advantage arising from the crime; so that, generally speaking, the stronger the temptation to commit any crime, the more severe ought to be the punishment, subject to exceptions in extreme cases.

"2d. When the criminal act is evidently a habit or practice, the punishment should be proportioned, not to the gain derived from a

single offence, but to the probable amount of profit flowing from a course of such conduct.

"3d. An addition must be made to the punishment, in order to compensate its want of certainty and proximity.

"4th. In cases where a temptation offers for the commission of different crimes, a more severe punishment should be denounced against the greater crime.

"5th. The more pernicious any crime is, the more safely may a severe punishment be ventured upon, for the chance of preventing it.

6th. The nominal amount of punishment for the same crime, must often be varied at the discretion of the judge, according to the circumstances of the delinquent, in order to preserve the real amount of suffering."

The operation of sanguinary laws, instead of preventing crime, increases it. The party injured will not prosecute when he is sure public sentiment and his own feelings are against excessive punishment. If he should bring the party to trial, the jury, who may have more feeling than himself, will, upon the ground of humanity or law, acquit him, and this, perhaps, at the expense of their oaths. If the prisoner is convicted, with what eagerness and avidity do not the judges find some technical exception, in order to arrest the arm of the law. If that, too, fails, the force of public opinion is, in many cases, sufficient to rescue him from a situation the laws of his country have placed him in.

"It is moreover absurd and impolitic to apply the same punishment to crimes of different malignity. A multitude of sanguinary laws, (beside the doubt that may be entertained concerning the right of making them,) do likewise prove a manifest defect, either in the wisdom of the legislature, or the strength of the executive power. It is a kind of quackery in government, and argues a want of solid skill, to apply the same universal remedy, the ultimum supplicium to every case of difficulty." 4 Blac. Com. 16.

By the 10th art. of the amendment of the constitution of the United States, it is declared, "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The cruel and barbarous punishments of burning, beheading, quartering, impaling, burning in the hand, corruption of blood, &c. do not exist in the United States. The imperfection and cruelty of former systems were known and considered by those great and good men, who laid the foundation upon which has been erected the superstructure of our criminal code. Here, the punishment is tempered with mercy, but, at the same time, graduated by the enormity of the crime. And by an act, passed 8th May, 1798, sec. 32.,' it is declared, "The manner of inflicting the punishment of death, shall be by hanging the person convicted, by the neck, until dead." And also by the act of 30th of April, 1790, sec. 4., it is enacted, "The court before whom any person shall be convicted of the crime of murder, for which he or she shall be sentenced to suffer death, may, at their discretion, add to the judgment, that the body of such offender shall be delivered to a surgeon for dissection; and the marshal, who is to cause such sentence to be executed, shall

2d. Should immediately follow the crime.

3d. Should be certain.

accordingly deliver the body of such offender, after execution done,
to such surgeon as the court shall direct, for the purpose aforesaid.
Provided, That such surgeon, or some other person by him appoint-
ed for the purpose, shall attend to receive and take away the dead
body, at the time of the execution of such offender."

For the grades of punishment, see the different crimes, post.

All writers on criminal law agree that a crime should immediately be followed by trial and punishment, because the smaller the interval of time between the punishment and the crime, the stronger and more lasting will be the association of the two ideas of crime and punishment, so that they may be considered, one as the cause, and the other as the inevitable and unavoidable effect which follows. In the rude minds of the vulgar, nothing is effective but present objects; they see the punishment, but forget the crime when a long interval ensues between them. It is of the greatest importance (says Beccaria) that the punishment should succeed the crime as immediately as possible, if we intend that in the rude minds of the multitude, the seducing picture of the advantage arising from the crime, should instantly awake the attendant idea of punishment. Delaying the punishment serves only to separate these two ideas; and thus affects the minds of the spectators, rather as being a terrible sight, than the necessary consequence of a crime; the horror of which should contribute to heighten the idea of the punishment.

There are, besides, other reasons to show the necessity of a speedy trial and punishment. It excuses the unhappy criminal the cruel and unnecessary torment of uncertainty; which is a punishment of itself, and to those of a strong imagination, the greatest punishment perhaps that can be endured. Imprisonment, being the only means of securing the person of the accused, until he be tried, condemned, or acquitted, ought not only to be of as short duration, but attended with as little severity as possible. The time should be determined by the necessary preparation for the trial, and the right of priority in the oldest prisoners. The confinement ought not to be closer than is requisite to prevent his flight, or his concealing the proofs of the crime; and the trial should be conducted with all possible expedition. Can there be a more cruel contrast than that between the indolence of a judge, and the painful anxiety of the accused; the comforts and pleasures of an insensible magistrate, and the filth and misery of the prisoner?

"The degree of punishment, and the consequences of a crime, ought to be so contrived as to have the greatest possible effect on others, with the least possible gain to the delinquent; if there be any society in which this is not a fundamental principle, it is an unlawful society; for mankind, by their union, originally intended to subject themselves to the least evils possible."-Becc. c. 7. "That a punishment may not be an act of violence, of one or of many against a private member of society, it should be public, immediately, and necessary; the least possible in the case given, proportioned to the crime, and determined by the laws." Montesquieu, Spirit of Laws, b. 6 c. 13.

The certainty of punishment is that quality which is of the greatest importance, in order to constitute them fit preventives of crimes.

1

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. 3 Wils. Lec. 363.

The pardoning power is the brightest jewel in the crown of the executive; its brightness may, however, be tarnished by too frequent and improvident use. If the certainty of punishment is one of the greatest preventives of crimes, may not the means of prevention be very much diminished, if not almost entirely destroyed, by an indiscriminate use of this power, is a question that will not be answered in the negative. Perhaps there is no power placed in the hands of a man, or a body of men, that requires greater caution and circumspection in the exercise of it, than the power of pardoning. When duly administered, it may soften the rigour of law. It meets cases and exceptions not provided for by any general rule; but when abused, the rule and the exception are confounded, and the law itself becomes a dead letter.

There is nothing very dissimilar here in the mode of trial of those charged with crimes from the English forms, which we have adopted in the United States. We have, however, made some improvements in favour of the party accused, which justly entitles our criminal code to the respect and esteem of every nation. Perhaps there is no country on the face of the earth where a person charged with a crime is less subject to arbitrary power, where his rights in a peculiar situation are so cautiously guarded.

indict

A prisoner can only be brought to trial by the ordinary course of Presentment a presentment or indictment. By the constitution, (art. 5th, amend- and ments,) it is declared, "No person shall be held to answer for a ment the only capital or other infamous crime, unless on a presentment or indict- mode of proment of a grand jury, except in cases arising in the land or naval secution in the forces, or in the militia, when in actual service, in time of war or United States. public danger; nor shall any person be subject for the same offence, to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation."

To convict a person of a crime under the constitution and laws of the United States, (except as is there excepted,) the preliminary investigation and decision of a grand jury is indispensably requisite. A grand jury is a barrier that protects the rights of the people, and which cannot be iuvaded until that barrier is broken down.

-"Nor shall any person be subject for the same offence to be Jeopardy twice put in jeopardy of life or limb." See the construction of this phrase in the constitution, in Goodwin's Trial, by Counsellor Sampson. See also, 1 Cr. L. Cases, 471. The decision of Chief.