« PreviousContinue »
It has been acknowledged for a considerable time, that our criminal laws require revision, and many changes have been made in them with a view to the more effectual suppression of crime, as well as to satisfy the more humane spirit which increasing civilization never fails to generate. Yet these amendments have been more of the nature of a patch on an old garment, or a lean-to against an old building, than what it was natural to wish for—namely, a taking away of useless parts, or a reconstruction of them on the plan of the original fabric.
Law, like other things, has its fundamental principles, and he who would construct or amend a code must first make himself well acquainted with those principles otherwise he runs the risk of as signal a failure as would be experienced by the architect or mechanician who should form his plans without a due regard to the fundamental rules of his science: which are themselves derived from the great laws by which matter is regulated. The mechanician knows that the tendency of matter is to repose, and that if motion is to be communicated to it friction, gravitation, the pressure of the atmosphere, an various other causes must be taken into account, and accurately calculated, ere he can judge of the exterior force required to overcome both the original vis inertie and the numerous interrupting causes. He does so, and if he calculates well, he succeeds in producing the most beautiful results. The legislator has to deal with a subject of a more difficult nature; he has not merely to study the laws of inert matter and to calculate accordingly: but a fresh element is introduced, whose tendency is not to repose, but action; and the well being of society depends on the giving a right direction to this restless tendency. Laws, it is true, have relation only to the actions which immediately affect the present state of things; but the actions which come under the jurisdiction of law, arise from deeper sources, and have relation frequently to more distant objects than law can take cognizance of. The legislator therefore must study the nature of man:-must investigate those deep sources of action; those ulterior objects which frequently set all legislation at defiance; and must make these impelling forces as much a part of his calculation as the mechanician would do the retarding power of friction, gravitation, &c. They are laws of a nature perfectly different, but they are nevertheless laws of each nature respectively; and cannot be disregarded without more than a risk of failure. He who should calculate the force of an organized being upon the same principles as that of a machine, would deceive himself-he who calculates the actions of an intellectual being on the same principles as those of an animal will be equally deceived:—in each there is a fresh element, and if this be overlooked, the calculation is worth nothing. The regulations required for a nation of baboons would be very different from those required for a nation of human beings. When complaining of, and seeking remedies for the increase of crime, it would be well if we asked ourselves whether, in our legislation, these conditions have been sufficiently attended to?—whether the element of man's intellectual nature has entered sufficiently into the calculation?—whether, in fact, our laws have not been more fitted to the baboon nation already alluded to, than to a set of beings acting from impulses which no law can destroy or even repress; and led forward by motives which on many occasions gain strength by opposition? The animal crouches beneath the scourge, and is tamed by it;-man, feeling in himself a power which can set at nought bodily influences, defies pain, and counts himself ennobled by having borne it without flinching. This one fact sufficiently shows that criminal legislation is not the easy task which many suppose it to be. The greatest revolutions the world has ever seen, have been brought about by men who encountered, without hesitation, the utmost rigor of severe laws, not hoping an escape for themselves, but satisfied that their tortures and death were sowing the dragon’s teeth from which armed men would spring to sweep away the power under whose influence they had suffered. The legislator must learn to know and to calculate this interior force, ere he can guess what will be the effect of his laws.
I go farther:—the mechanician acknowledges laws impressed on matter which it has received from a mightier Power than his own; and he does not attempt to contravene them:-he calculates rather on their unvarying force, and his results correspond to his expectations. Are we then to suppose that inert matter has laws, and that intellect has none 4—or are we to imagine that the material world is regulated by a Power far beyond our own and that the moral world's left to chance? This would be poor logic. On the contrary, as the mechanician cannot proceed without ascertaining the material laws of the Creator, so the legislator, ere he can give force to his regulations, must ascertain His moral laws. All creation must lead to some object, and if the social be at variance with the moral law, the irresistible tendencies of nature will sweep it away. The legislator, therefore, must be not only acquainted with the powers and impulses of the beings for whom he legislates, but he must also endeavour to penetrate the yet deeper arcana of the universe, and arrive at the animus, as it were, of the Creator: for so sure as there is a Creator, so sure also is it that there is some object in creation; and this is no barren abstract doctrine of schoolmen and divines, but a great fact which must enter into all our calculations as a principal element, and which will either strengthen or nullify our code, according as it is in accordance with, or contradiction to, this object.
WHEN we enter on the consideration of a code of laws, three questions naturally arise in the mind: they embrace the whole subject, and the true answer to them forms the science of o
1. By what right does man control his fellow man, and
abridge a part of his natural liberty? 2. What is the object proposed by this control? 3. What are the means best adapted to the attainment. of the object proposed ?
In order to the due consideration of the first two questions, we shall have to dismiss from our minds any foregone conclusions drawn from actual practice, and to recur to the fundamental principles of all law, which are alike for all countries and all time. The modifications which circumstances call for, form the answer to the third, which, if duly given, ought to be the practical result of the previous inquiry. Had it always been so, we should not now be calling for reforms and alterations in our code; and although so brief an attempt to lay down the philosophy of law will probably be an imperfect one, still something will have been done if some arrangement be given to the subject, so as to make it assume the form of a science, rather than an empirical practice of applying a remedy to the evil as it arises, without inquiring what has caused it; and thus incurring the risk of increasing instead of remedying it.
“The absolute rights of man,” says Blackstone, “considered as a free agent, endowed with discernment to