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where the greater difficulties of soil and climate kept men more dependent on each other for assistance, and consequently in nearer neighborhood to each other, the fathers or elders of the tribe formed a kind of council, and their decisions were held binding on the whole, or if resisted by one or two, were enforced by the rest: and this for the most part was the origin of our unwritten or common law: since among the German nations, from whom we are derived, though there might be one chief for war, who performed the functions more of a general than a king, his decisions as to right were never given merely on his own authority, but were made valid by the consent of his council of old men. And such a decision was likely to be satisfactory where the people were simple, and the relations of society very little complicated; for it was that of men of competent experience and integrity, who were past the age of passion, and not personally interested in the sentence; so that, on the whole, the German tribes, if we take the testimony of Tacitus, were not ill-ruled. This state of things, however, necessarily ceases along with the simple state of society to which it belongs, and then the people usually call for a written code which may meet their new exigencies, and be less liable to doubt than mere verbal decisions handed down by tradition : and thus arises statute law.

II.

What is the object proposed by this control?

If the origin of the right to control our fellows has been truly stated, the object of this control will not be difficult. to discover. Society generally, in order to avoid petty wars, takes on itself the protection of those who submit. themselves to its ordinances, and these ordinances are therefore directed to the securing those rights which man is justified in defending, because they are indispensable conditions of the development and perfection of his nature. And this right to the development and perfection of his nature is coeval with his very creation: for all things made by an intelligent Will are made with an ob ject, and that object is not accomplished till the thing

made is perfect of its kind. Man therefore may justly claim this perfection as his first great right, and his double nature calls for the means of a double development. The rights derived from this first and great right therefore are 1. Security in life and limb.

2. Security of possessions requisite to his natural wants. 3. Instruction in childhood and freedom in manhood, sufficient for the development of the rational mind. These are the securities which ought to be afforded by the control of social law, and it has no other legitimate object than the affording these securities; for man does not submit himself to control merely to please others, but for the sake of being uninterrupted in the pursuit of the great aims of his existence.

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The security of person and property against violence, -for no violation of the right of free thought can take place whilst these are secure,-being the great object of social law, it follows that it has no right to inflict penalties for any other purpose than to secure those rights; and its enactments therefore must have in view the prevention rather than the punishment of crime. For it is no benefit to the injured man that he who has injured him should suffer in his person for what he has done, but it is a benefit both to him and to society that the criminal shall be prevented from repeating his offence, and that others shall by his example be deterred from attempting it. On this point Blackstone is very explicit. "The end or final cause of human punishments," says he, "is not to be considered in the light of an atonement or expiation for the crime committed... but as a precaution against future offences of the same kind,"* and again he observes that the due measure of punishments will be merely "such as appear best calculated to answer the end of precaution against future offences." And this principle is recognized in practice to a certain degree, for since it is evident that a young child is incapable of being deterred from ill-doing by the dread of legal penalties, owing to his inexperience, which prevents him from well knowing that there are

* Blackstone, Comm., book iv. c. 1.

any such, it is not until an infant attains the age of seven years that he is by our English law held at all answerable for his actions to society, and if he commit a felony he is not punishable by any criminal prosecution whatever.*

It appears therefore that both rational philosophy and English law equally disclaim the idea of vengeance in any procedure of criminal, or, as I have called it, social law; and it may be farther stated that where the crime affects only the individual himself, however deep its dye, social law has no concern with it. The correction of the criminal, in this case, is cared for by another and higher judg

*But though the principle be thus far acknowledged by English law, it has been strangely confused by the legal practice with regard to the next seven years; for then it is held, that if the attendant circumstances prove that the child had a guilty knowledge that he was doing wrong, he is liable to the penalty of the law; and there is a case in the books of a child between the age of eight and nine years, who was tried and hanged for the crime of arson, committed with feelings of revenge, and executed, it is said, with considerable craft and cunning. But here it is observable that if the object of law be prevention of, not vengeance for crime, the capital punishment of one precocious child which could have no probable beneficial influence on other children, is not justifiable; though some minor penalty, which tended to the reformation of the offender himself, might be not only justifiable but desirable. The want of any acknowledged general principle on this subject, seems to have been felt in another case, which occurred in the year 1748, of a boy aged ten years, who murdered a little girl of five years old, by, according to his own confession, taking her out of bed, and carrying her to some distance, where he killed her with a large knife he had found about the house, cutting and mangling the body in a most barbarous manner. He then buried it in a dung heap, placed the straw which was stained with blood under the body, and covered it up with what was clean. The boy was convicted at the assizes; and a report of the evidence given was submitted to the judges, who unanimously agreed that so many circumstances in the report were undoubtedly tokens of what Chief Justice Hale calls a mischievous discretion," that the boy was certainly a proper subject for capital punishment. However, notwithstanding this opinion, the boy was reprieved from time time, and was finally in 1757 pardoned, upon condition of his entering immediately into the sea service.-Vide Russell on Crimes, book i. chap. 1.

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.

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