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ment, from whose penalties there is no escape, for they arise from the very constitution of his nature: but social law has only one proper object, i.e., the protection of individuals from a deprivation of their rights by the violence of others. Thus a man may give himself up to drunkenness, but if he stay in his own house and cause no annoyance to others, social law takes no cognizance of his misdoings, though he suffers largely the penalties which the law of nature is wont to inflict on its violators, i.e., loss of health, of senses, and even of life itself. Neither is a man amenable to legal punishment for corrupting the moral character of another person, if the person thus seduced into wrong doing be a willing agent; unless indeed the immorality be of a nature to injure the person or property of others, in which case the instigator suffers the penalty of an accessary to the crime, not of a seducer of innocence: for the law is only framed to prevent men from being involuntarily deprived of any natural right, since law, which is the expression of social man's aggregate power, can only represent some right possessed by the individuals who form that aggregate; and we have already seen that the rights which man, for the sake of peace, has vested in the magistrate, are those of self-preservation, and defence from violence: for if any case occur where the aid of the magistrate cannot be called in with sufficient promptitude, then the man resumes his natural right of self-defence, and may, without crime, repel violence by violence.*
* Thus, generally speaking, no provocation, however great, will justify the killing of another, for if the latter have committed an offence, he is amenable to society, to whom the other party is taken to have implicitly relinquished the power of judgment and punishment. But if there be not time to call in the assistance of the law, then the killing is justifiable. Thus if a person attempt to rob or murder another in the highway or in a dwelling house; or attempt to enter a house burglariously by night and be killed in the attempt, the slayer will be acquitted and discharged, and not only the party whose person or property is thus attacked, but his servants and other members of his family, and even strangers who are present at the time are equally justified in killing the assailant. So a man in defence of his house The above-mentioned principle, that the corrupting the morals of another is not an offence amenable to social law, is especially recognized in our English law respecting the seduction of females: for though a man may thus plunge a woman into the most hopeless misery, and thus commit an enormous moral crime; yet inasmuch as she was a consenting party, social law affords her no remedy for the wrong which it was at her option to avoid, though it inflicts the severest penalty on any who shall dare to effect the wrong by violence. And though the father be allowed in some cases to sue for a remuneration of his pecuniary loss, that is not upon the ground of the sorrow and shame brought into his family by the act of the seducer, but on account of his being deprived thereby of the services of his daughter; to which he is considered to have a legal right.* And though occasionally the consideration of the moral turpitude of the offence may influence the feelings of juries so far as to enhance the damages awarded, yet in fact, this stretch of power in the jury is a deviation from the principles on which social law is founded. And it will be evident on consideration that this limitation is grounded on the immutable principles of morality: for he who abstains from crime merely on account of his fear of its ill consequences to himself on detection, is not a virtuous, but a selfish man; and therefore it is useless to attach penalties to moral transgressions as such. The motive, and that alone, constitutes real goodness; and the man will be equally base whether he indulge his passions, or restrain them, solely under the
is justified in killing any one who seeks to dispossess him of it. But if the crime sought to be committed against him be of a less heinous nature than those above-mentioned, as, if his pocket were picked, or his hen-roost about to be robbed, he would not be justified in killing the thief. Wherever the emergency is not so great as to prevent recourse being had to the law, the administering justice by a man’s own hand becomes itself an offence.
* If no act of service can be proved, or if the daughter be at the time in the service of another, the father has no remedy whatever. Thus when the crime usually is of the worst kind,that of the master seducing an apprentice, the common law of England affords no remedy.
influence of fear. The hope of impunity is all that would be needed to make such a man a villain. Legal penalties, therefore, are of no farther avail than as they may tend to defend the worthy from the fraud or violence of the bad: they are useless towards the cultivation of moral worth. Theoretically, therefore, as well as practically, it is evident that social and moral law must be founded on different principles:* but though virtue cannot be enforced by statute, it is of importance that the enactments of legislators should never be in opposition to that law which is written in man's heart by a yet Greater Legislator: for should this be the case, it will in the first place be inefficient; and next, it will become so odious as probably to involve the overthrow of the government, as well as the contempt of the law. The rules of jurisprudence, therefore, must be in some degree limited, though not altogether guided, by those other and higher rules which no human law can supersede. And in proof of this we shall find,-on tracing the history of those laws which have been most daringly contemned,—that they have either offended against some principle or feeling which man’s better part holds sacred; or they have been matters of conventional crime only.f No penalties have been more severe than those attached to the crime of high treason, yet their savageness has never prevented wise and honorable and amiable men from encountering them: so many indeed of the ornaments of their age and country have perished thus, that were a list of their names to be here given, it would seem rather a selection of the most worthy than an enumeration of criminals. And why is this? Because whilst a government secures men in the enjoyment of their rights, none are tempted to rebel; but if it become corrupt or oppressive, the best are the first to be shocked
* So different, that in social law it is the intent to do an act, not the motive on which it is done, which forms the crime. In the moral law the very reverse is the rule.
t As in the resistance to the payment of turnpike tolls which gave rise to the Rebecca riots in Wales.
at it, and then it is the part of a disinterested and highminded man to disregard personal dangers, and throw himself into the breach to win safety and happiness for his country, even at the price of his own life. Treason, therefore, has never been held a dishonoring crime, and its penalties, severe as they are, have been set at nought. The motive, which was felt to be a noble one, took away the odium of a breach of the law. As severe as, or even more so than the laws against high treason, were those against heresy, and they too were met by a spirit of even more determined resistance: a resistance which, though most generally passive, was so persevering, that finally it vanquished opposition; and these enactments have been discontinued. It was wise to do so, for the man who thinks he has discovered the truth, feels it to be a duty to his God and his fellow-creatures to make it known, and against such a feeling penal statutes are unavailing. From the blood of one martyr twenty spring up. It is evident, therefore, that the moment that social law attempts what is beyond its province, the feelings of mankind rebel against it, and it becomes wholly nugatory. This should be kept in mind in all legal enactments, for it effectually marks the limits within which they ought to be confined. To sum up in brief this part of the subject, it appears 1. That all existing beings, having some aim and end of existence, have a right to the means for the due perfecting of their nature, so as to accomplish that end. 2. That they have consequently an inherent right to defend themselves against any violence which prevents this; and, if weak themselves, they may, and must seek the aid of others in order to this defence. 3. That to put an end to the warfare thus engendered, which was an evil to all, law was resorted to, and to it was delegated the right of repressing violence, so as to render individual self-defence in great measure needless. 4. That social law therefore directs its enactments towards the securing those under its jurisdiction from acts of violence which may deprive them of the means or the liberty to pursue the ends of their existence. It is consequently preventive, not vindictive.
5. That the moral law, being immutable and unceasing, and enforced by penalties peculiarly its own, inflicted with unerring certainty, even if undetected by man, disdains the support of social law; but social law cannot stand without the aid of the moral law, and if, by unwise legislation, they are ever placed in opposition, social law will be inefficient.
If these principles be acknowledged, and it is not easy to avoid acknowledging them, it remains now that we examine the code of criminal jurisprudence by their aid; and if we do not find its provisions in accordance with them, to point out how they might be made so; and this brings us to the third question.
What are the means best adapted to the attainment of the object proposed?
In the earliest period of legislation there was an endeavor to accomplish two objects in all criminal procedure: i.e., compensation to the sufferer, and punishment to the offender. But, in the very nature of things, the worst injuries are those which admit of no compensation; and then among rude nations arose the idea of the compensation of revenge, and the law inflicted on the perpetrator a penalty of the nature of the violence he had committed. Thus in the very earliest period of law, its true object, prevention of crime, was frequently, if not wholly |. sight of, and a vindictive pursuit of the criminal was encouraged. This vitiation of the first principles of law by substituting revenge for self-defence, has never been entirely effaced from any code; and still, even where the law does not require it, we find sentences frequently influenced by this false conception of the object of criminal jurisprudence, and proportioned rather to the extent of the damage done, than to the nature of the crime attempted.
When the impossibility of compensation to the sufferer became evident, the next attempt was to prevent crime by the severity of punishment; but in proportion as the penalty is severe, the cunning used to evade it is quick