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suming that we are yet very far from having adopted the best means for attaining the object which social law has in view, i.e., the prevention of crime, and that there is great need for a revision of this part of our laws. It was natural to hope that the commissioners lately entrusted with the revision of the criminal law, would have taken the system of penalties also into consideration; but though they have suggested some few alterations, they have not thought fit to offer any observations on the tendency of the system generally. . Thus though the barrister and the judge may be saved some trouble by the codification of our laws, the citizen who asks for security of life and property; or the philanthropist who asks that man shall be trained to virtue, not to vice;—must remain as little satisfied as before; the question of how the great object of criminal law, i.e., prevention of crime, can best be effected, is yet far from solved, and the subject requires to be taken up de novo. As a preliminary step in such an inquiry, it becomes needful to consider whether the offences which are constituted such either by statute or common law, are all of a nature which can be clearly recognized as coming within the province of social legislation; for we have already seen that law must borrow much of its efficacy from its agreement with that ineffaceable common law which is written in man’s heart by the finger of his Creator. And here it was to be hoped that as the attention of her Majesty's government had already been given to the codification of our criminal law, some endeavor would have been made on the part of the commissioners to remove statutes and practices which are no longer in keeping with the habits of the time: but in dividing the offences at present cognizable by our criminal courts into chapters, with a view to their classification, they have placed at the head two, which we have already seen, ($ II.) cannot be considered as either useful or expedient in the present age. These chapters are headed 1. Treason, and other offences against the state. 2. Offences against religion and the established church. On the first of these the commissioners observe, “The first great class which comprises treasons against the sovereign and the state, requires no remark; the crime of treason is, by its tendency to destroy the bonds of civil society and produce a state of anarchy and misery, clearly distinguished from all others. It falls within the description of the crimen lasa majestatis of the Roman law, and by whatever name or whatever circumstances it be described, it must constitute in every system the first and highest offence known to the law.” Now though it may appear almost presumptuous to impugn the dicta of men who have devoted long and anxious attention to the subject, yet, if the principles already laid down be true ones, it is unavoidable: for is social law be founded upon them, then it is impossible to overlook them in any one or two instances without serious injury to the system, as a whole, which shall win the respect and consequent obedience of a nation. Let us consider the matter farther. The sovereign, considered as a human being, has the common natural rights of a human being, and no more, and with whatever more of sanctity and dignity public opinion may have hedged him round, it is clear that it is only as the embodiment of the law itself, of which he is the dispenser: and the law affords him protection in that judicial capacity by a fiction —“the king can do no wrong”—only in order to prevent the evils which would arise to the body politic were the king made privately answerable for the acts done in his name according to the law. But if the king attempt to act in opposition to the law, no one in these days will say that the resistance to such acts is wrong, but the contrary: though if such resistance be unsuccessful, the leaders of it, according to the still existing statutes, must expiate their crime by death. Yet if it be successful, as in the case of the partisans of the Prince of Orange in 1688, those same men, who, if unsuccessful, must have been executed as traitors, will be lauded, and justly so, as the saviours of their country. A strange anomaly, which at once removes the law of treason from among those founded on the natural rights of man, which, as we have already seen, form the basis of all social law. For man cannot delegate a right which he does not possess, and the power of exercising control over any man, or body of men, beyond what is necessary for the maintenance of natural rights, has never been among the rights belonging to man as a species, and therefore can never properly be delegated to the law. Nor are the treason statutes needful; for he who commits violence personally or by deputy is liable to the penalties of the law, and can only avoid them, either by an act of indemnity afterwards granted by those who consider the benefit attained by such violence to be great enough to justify the dispensing with the strictness of law on that one occasion;–or by becoming great enough to be above the law, and in that case it should be remembered that he who cannot be made to submit to the penalty for murder or robbery, would not be more amenable to the penalties of treason. Those slain in a warfare not legally authorized are murdered; and the murderers may be prosecuted for what they have done; those who levy forced contributions are robbers, and must abide the consequence: those who assemble in numbers likely to occasion a breach of the peace, are punishable for a riot if they do not disperse when warned to do so. There is no part of treason, therefore, which is not provided for by the common criminal law, except that of the culpable imagining; but that, if it proceed not to culpable acts, will hardly now be held a crime. When the statutes of the twenty-fifth of Edward III. were passed, society was very differently constituted: the penalties attached to robbery and murder were neither well defined nor rigorously enforced, and a powerful noble could rob his poor neighbors with impunity: the savage treason laws therefore were but the natural produce of a semi-barbarous age, where the law itself being weak, the hand of the monarch was made strong in order to execute it. That period is past, and the last successful traitors in 1688 ought not to have left a law in existence from which they themselves had so narrowly escaped, to clutch heads as noble as their own in after times. There is yet another reason for the repeal of the treason laws: they are worse than useless. It has already been noticed that it never was held a dishonoring crime, and we have of late years seen vagabonds, who had no other way of attaining celebrity, attempt the sovereign's life by way of obtaining the “pride, pomp, and circumstance” of a trial for high treason. This was made manifest by the effect at once produced by the wise enactment on occasion of those attempts on her present majesty. The moment the celebrity of a traitor was taken away and the offender was subjected to the dishonor of a whipping, the crime was attempted no more. It appears, then, that in some cases the treason statutes are superfluous, in others absolutely mischievous, in others that they have proved nugatory, as in that part of them relating to the king's compassion which, it is well remembered, could not be executed in the only case since Henry VIII. in which any proceeding of this kind was attempted, and that thus a fair case is made out for their repeal. I need hardly remind the commissioners that the Roman law which they allude to was the support of a tyranny so intolerable that every good Englishman must pray that the crimen lasa majestatis may never be heard of in England. It should sleep with the Cesars, of whom alone it was worthy. To the second division, namely, “offences against religion and the established church,” I must in like manner object; for social law, as we have already seen, can take cognizance only of injuries done to the members of the society under its protection in their persons or property. We must therefore inquire what injury is done by the offender against religion or the established church to the other members of the society of which he forms one. “He who impugns the Christian religion,” says Blackstone, “is punishable at common law ... for Christianity is part of the laws of England,” and he justifies the punishment of such offenders by saying that the sanctity of an oath, on which the evidence in courts of law is dependent, will be weakened and indeed rendered wholly mugatory where the person taking it has no belief in the existence of a God, or a future state; and thus the offence must strike at the very root of all social law. But with all due deference to so greatan authority, it may be questioned

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whether the mere outward profession of a belief gives any security to society, and what more can human laws enforce? Many a voluptuary, an ambitious man,—or a hard, griping miser, thinks as little of, and cares as little for a future state, as the man who openly professes his disbelief; is the oath of the one at all more binding on him than that of the other? But it will be said that the open profession and promulgation of this disbelief injure by its example. Yet, though it be of infinite importance tonavigation that the Newtonian system of astronomy should be believed and acted on, who thinks of punishing the clown who may obstinately assert that the sun moves round the earth? No one who is able to judge for himself believes this, or is in the least danger of being seduced into believing it: and are we so little convinced of the truth of revelation as to dread that those who really believe it will give up their conviction the first time that they are asked to do so? Certainly among those who call themselves Christians there are numbers who are so only in name: these doubtless may easily be led into any extrayagance; but it may well be questioned if the cause of religion gains anything by the example of a man who attends regularly on holy ordinances yet scruples not to corrupt his neighbor's wife or defraud him of his property in the meantime. The man who professes unbelief is far less dangerous to society than this kind of religious hypocrite, for the infidel at least carries his colors at the mast head and deceives no one. The injury done to the believer is none; for the good Providence of God cannot be quenched by the breath of man; and nothing more is requisite to make the teaching of irreligious doctrine wholly ineffectual, than the due instruction of the people, so that they may be capable of believing on conviction, without which religion becomes superstition, and is as useless towards guiding the life and conduct as atheism itself. But it is easier to imprison one man for teaching false doctrine, than to instruct thousands in the truth, and thus legislators become intolerant through mere indolence: a poor excuse for so glaring a departure from the great principles of all human law. If indeed unbelief should arrive at that point of fana

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