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?-or are we to imagine that the material world is regulated by a Power far beyond our own, and that the moral world is 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.

CHAPTER I.

THEORY OF CRIMINAL LAW.

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 legislation.

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.

I.

By what right does man control his fellow-man?

"The absolute rights of man," says Blackstone, "con→ sidered as a free agent, endowed with discernment to

know good from evil. ... are usually summed up in one general appellation, and denominated, the natural liberty of mankind." What then gives one man or body of men the right to abridge this liberty? Blackstone goes on to say that man, "when he enters into society, gives up a part of his natural liberty as the price of so valuable a privilege." I am inclined, nevertheless, to think that this, though true in the main, is not the exact definition which we require, either of rights or of their limitation. For we shall find that this natural liberty never has existed, from the time that a child was born into the world, since its weakness and inexperience necessarily place it under the control of its parents; and what right can be natural which is not inherent from the first? We should laugh at any one who talked of the natural liberty of an infant, unable even to walk.

We must seek then for some other definition of right than this of mere liberty, and we shall probably find it by an inquiry into the state of this very infant. It is born by no choice of its own; then the Will by which it is constituted as it is, has some design in so constituting it: some aim and end of existence are assigned to it: for I am not here to argue the existence of a Creator; that has been done elsewhere.

If the being, be it what it may, have some end of existence assigned to it, then the accomplishment of that end is its natural right, and so far as liberty of action is needful to this end, it will form a part of the claim of natural right, but no farther. Man being an intellectual animal, the end of his existence can be attained only by the complete development of his nature in both its parts; and he who abridges him of any means by which this is to be effected, does him a wrong; but the parent who abridges the natural liberty of the child so far as to prevent him from maiming or destroying himself, does him no wrong, but the contrary: and this relation of parent and child being universal, and from the beginning, it is plain that unrestrained liberty is not the complete summing up of the natural rights of mankind. But the infant has the natural right of arriving at the due development of the two parts of his nature, corporeal and intellectual,

and from this other rights are derived: he has a right to food, to shelter, to protection from violence, to instruction. These, whilst helpless, it is the parent's duty to bestow, and these, when grown to an age that enables him to make his own claim, and seek his own perfection, he endeavors to obtain, because he feels them to be absolute conditions of animal and intellectual existence.

A right cannot be withheld without doing a wrong: if a man have by his industry provided himself with food and raiment, and another attempts by violence to deprive him of it; the first, possessing a natural right to these things, has also a natural right to resist the being dispossessed of them: if he be not strong enough himself, he seeks the aid of others to make the resistance effectual; and hence arises the first rude notion of social law, as we find it practised among simple tribes, in patriarchal times. Thus, when Lot and his property were carried away, his uncle Abraham armed his servants, and with the aid of three of his neighbors, pursued and rescued his nephew and his effects. War is only another form of this rude justice, continued to our day: it is the repelling violence by violence where the party cannot be made to submit

to law.

The right then of abridging the liberty of our fellow men by the establishment of social law, springs out of the very constitution of our nature, which, having a certain end to accomplish, has the right to fulfill it, and consequently to resist any attempt to impede this fulfillment. Man's wants are the same; all need food, shelter, &c.; but the physical strength of the different members of the great human family is very unequal: numbers therefore unite to effect what, singly, would be beyond their power; and some rude form of legal jurisdiction is at last devised to remedy the state of warfare which necessarily arises out of individual violence and individual self-defence.

The form of parental rule is that which man is earliest and best acquainted with, and thus in early times the transition from patriarch to prince was easy. În Asia that form still exists, and the magistrate for the most part is guided by no law save that which is supposed to exist in the heart of every man: but in more northern countries,