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.†

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.

+ 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.

III.

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 lost 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

ened, and the disinclination to prosecute or to convict increased; and if the art of the criminal and other chances should arrive at the point of making the chances of punishment less than those of gain, the penalty loses its terrors from its uncertainty. Capital punishments thus became ineffective, and during the latter end of the last and the progress of the present century, legislators, finding that laws of such severity were both shocking to humanity, and ineffectual in repressing crime, have in different countries devised various expedients as substitutes for the punishment of death.

I. Imprisonment,

II. Forced labor,

III. Deportation to distant colonies,

have been adopted under different codes; but all these expedients are open to serious objections, and still crime increases.

Before we proceed farther, it may be well to take a brief survey of these methods of punishment, and see how far they are adapted to the end which should be proposed in all legal penalties.

I. Imprisonment. This is varied in its forms, and may be subdivided into

1. Simple imprisonment,

2. Imprisonment with hard labor,

3. Imprisonment with a prohibition of communication by speech with other convicts,

4. Solitary confinement.

1. Simple imprisonment, which, till lately, was the only kind of imprisonment made use of in England. In this case the convict, be his offence what it may, falls at once into company with persons of the worst description, for a crowded jail will not allow of classification; and the child committed for some trifling offence, and the hardened thief, or receiver of stolen goods, meet in the yards of Newgate as if the young offender were absolutely sent there in order to be instructed in crime by those who have passed through all its grades,* and this is the first evil at

* "At one time, early in 1830," says Mr. E. G. Wakefield, in a work I shall have occasion to quote again, "there were half

tending it as regards the young: but even if the convict be not young,-even if he be enough advanced in crime to run no hazard of farther contamination,-still imprisonment merely is useless, unless as a preventive measure, namely, in so far as by shutting the man up you prevent him from pursuing his guilty course during the time he is so confined; for when the term of his confinement is over he returns to the same companions and the same temptations; his body is less fit for exertion, his character is blasted, and his chance of obtaining an honest livelihood decreased by both these circumstances. He is set free in the midst of a dense population, where even the honest can scarcely obtain employment; and no course seems open to him but that from which he has been snatched for a time. What wonder that he returns to it? Observing the inefficiency of this plan, our English legislators have now generally changed it into

2. Imprisonment with hard labor. This is, of course, more irksome to the thief, and therefore may be supposed to deter from crime in a certain degree; but beyond this there is no benefit attending it. The chance of corruption by ill company is the same; the tread mill is an enervating kind of labor which does not prepare a man for working cheerfully when he leaves the prison; and all

a dozen boys in the school yard of Newgate; and during their confinement a man who had not been suspected before, was convicted of receiving stolen goods. This man happened to be placed in the yard next that of the school; and I heard many conversations between him and the boys; and afterwards, when he left the prison, frequently questioned the boys about him. Altogether I learned that for several years past he had been in the constant habit of visiting a coffee shop attached to a boythieves lodging house and suggesting to them all sorts of robberies, the plan of which it was his business to concoct. My attention was first directed to him by seeing him give money to the boys; and I soon found that these presents were bribes for their silence. He passed for a religious man with the keeper and chaplain; always attended chapel with an air of great devotion, and generally snatched up a Bible when any officer of the prison was likely to observe him."-Wakefield's Facts connected with the punishment of Death, p. 26. In this instance the tempter had full scope for his seductions in prison as well as when at large.