crimes without the authority of an express law. Those who acknowledge the authority of a natural law, affirm the existence of such a right, and divide criminal actions into those which are bad in themselves (delicta juris naturalis), or, as the English law terms them, mala in se, and actions which are of themselves indifferent, but are subjected to a penalty by particular laws (delicta juris positivi), or, as the English law terms them, mala prohibita. Crimes of the first class, as murder, theft, &c., must be every where punished, even without a positive law; but those of the second, as contraband trade, are punishable only when made penal by express enactment. Feuerbach and others, however, acknowledge no right of punishment without an express law. 2. With the preceding is nearly connected the question -how far it is the right or duty of the state to punish crimes, which have been committed in foreign countries. On this point, in addition to the difficulties attending the main question, there exists a great difference of opinion as to the laws by which such crimes are to be judged, whether by the laws of the foreign country, or of that to which the individual belongs. 3. What power should be given to the judge to vary the punishment according to the different circumstances attending the offence? The tendency, in modern times, is to define crimes and their punishments so exactly as to leave nothing to the discretion of the judge, and to enable every man to see what he has to expect from a violation of the law. It is doubtful whether so much precision is generally advantageous, since it almost necessarily produces an unequal distribution of punishment, the question whether it shall be light or severe frequently depending on a little difference in the age of the offender, the amount of property stolen, &c.; so that a penny more or less may make a difference of several years' confinement in a penitentiary; or the difference of a day, in the age of the culprit, may decide whether he shall be punished with a few stripes, or deprived of his liberty for years, or of his life. 4. One of the most difficult points is the just estimation of injuries done to the honor of another, which involves the great question of the liberty of the press. The most important differences of opinion, however, are those which prevail with regard to criminal process. From the representation given above of the principles and the developen en of penal law, it is evident that criminal proceedings have always been

founded at first upon private accusations, in regard to which almost the same principles prevail as those observed in civil actions. In the course of time, this mode is superseded by a public accusation on the part of the state, appearing by an attorney, to prosecute the offence. Upon this principle are founded the criminal proceedings of the English courts, and of the French courts since the revolution. With this may be united the public trial by jury, which has found so many adherents in modern times. Its fundamental character consists in this, that the party accused remains merely passive, and waits for the charge to be proved. The consequence is, that the sentence must be pronounced from a view of probabilities, and depends, therefore, more on a knowledge of men, and the deductions of a sound judgment, than on technical rules. It has been considered the safest mode of trying offences, in particular, as it prevents the dangers arising from the influence of the higher officers of the state over judges deriving their salaries from the sovereign, by referring the question of guilt or innocence to the verdict of men taken immediately from among the people, i. e. jurors. The Ger man criminal proceedings are directed principally, it may be said solely, to the end of obtaining from the accused a confession of the deed, and of its circumstances, by inquisitory process. This admits neither of an accuser nor of a public trial, but the judge must inquire of the accused himself, and obtain from him, if possible, by a skilful combination of the circumstances, as well as by awakening the voice of conscience, complete truth. What is in Germany the chief business of the judge, belongs, in France, to the juge instructeur, and, in England, to justices of the peace, as police officers, whose investigations afford, in common cases, the materials for the final trial. The opponents of the trial by jury allege, as a chief reason for their opposition, that, when the preparatory process affords no certain results, the subsequent trial is attended by the same uncertainty.

To the preceding article, taken from the Gerinan Lexicon, we have to add a few suggestions growing out of the practice of the common law, which constitutes the basis of the institutions of the U. States as well as of England. The general theory of the common law is, that all wrongs are divisible into two species; first, civil or private wrongs; secondly, criminal or public wrongs. The former are to be redressed by private suits, or remedies in

stituted by the parties injured. The latter are redressed by the state, acting in its Sovereign capacity. The general description of private wrongs is, that they comprehend those injuries which affect the rights and property of the individual, and terminate there; that of public wrongs or offences is, that they comprehend such acts as injure, not merely individuals, but the community at large, by endangering the peace, the comfort, the good order, the policy, and even the existence of society. The exact boundaries between these classes are not, perhaps, always easy to be discerned, even in theory; for there are few private wrongs which may not and do not exert an influence beyond the individual whom they directly injure. In doubtful cases, the legislature usually interferes, and prescribes a positive rule. In clear cases, the right of punishment on the part of the state is assumed as a deduction from natural justice and the duty of the state to protect all its subjects. Hence, in the common law, two classes of offences are distinctly traced out. The first embraces those which rest upon legislative enactments. The second embraces those which, independently of any such enactment, are deemed, from their very nature, injuries to the public. The offences belonging to this last class are not, perhaps, capable of a perfect enumeration; and the test by which they are ascertained is left to the judgment of judges, as cases arise, to be fixed, not according to their own discretion, but by analogy and appreciation of the principles and cases already well settled by former adjudications. When, therefore, a non-enumerated wrong arises, which does not fall under any known former rule, the question which is discussed is, how far it falls under the principles already established respecting public crimes. If reasoning furnishes a strong analogy, it is deemed a public of fence; if otherwise, it is left for the legislature to declare that it shall be such. Treason, murder, setting fire to a dwelling house in a large city, riots disturbing the general peace, poisoning public wells, &c., it will be readily admitted, naturally endanger the good order and safety of the state, and therefore are properly to be punished by the state. But it is not so easy to trace the same principle in mere secret thefts, or a private fight, and yet deny its existence in violent seizures of private property, and private quarrels producing defamation of character. The common law considers the great object of the public punishment of crimes to be

the prevention of offences, by deterring both the offender and others from a repetition of the same. Its object is not so much an atonement for, or expiation of, the offences, as a precaution against their recurrence. This naturally includes, not as a primary motive, but as an incident. the reformation of the criminal himself; for, so far as that is effected, it prevents offences. That system of punishments is indeed most desirable, which attains its object by such a reformation. But it is obvious, that reformation cannot always be relied upon as a sufficient security for society. Hence arises the necessity or policy of capital punishment, which, by cutting off the offender, not only operates as a terror to others, but secures society against the possible perpetration of the same offence by him. Undoubtedly it ought never to be resorted to except in cases of atrocious guilt, and where less punishments are manifestly inadequate to produce security. Some persons, indeed, doubt the lawfulness of capital punishment altogether; but the divine law has certainly sanctioned it. Others, who do not question its lawfulness, doubt or deny its policy. It is certain that the frequency of capital punishment has some tendency to abate its terrors; and it is by no means as certain that capital punishments have a tendency to prevent the occurrence of the crime, or to secure a conviction. There is a natural repugnance to punish, with so much severity, slight offences; and judges and juries, as well as the public, under such circumstances, lean against prosecutions and in favor of acquittals. Hence the probability of conviction is sometimes in proportion to the moderation of punishments. On the other hand, it is found by experience, that the punishment of death is not sufficient to deter men from the commission of offences to which they are strongly tempted by their passions or their wants. The tendency of modern legislation has, therefore, almost uniformly been in favor of relaxing the severity of the penal code. In England, capital punishments are very extensively provided for by statute. There are more than 160 capital offences in her code. (4 Bl. Comm. 18.) In the U. States, there has been a constant effort to diminish the number of capital offences. There are but 9 in the criminal code of the U. States; and the codes of the respective states do not gen

Indeed, the severity of the punishment sometimes induces the offender to become more savage and atrocious. Thus, where robbery is punishable with death, it is often attended with murder,

erally embrace a larger number. Treason, murder, rape, arson or burning of a dwelling house, are generally punishable with death; and sometimes robbery, burglary or breaking into a dwelling house in the night time with intent to steal. The code of the U. States also includes piracy, the slave-trade, fraudulently casting away ships on the sea, robbery of the mail, burning public ships of war, and the rescue of convicts capitally convicted when the sentence is about to be executed. The punishment of other offences is, for those of great enormity, solitary confinement or hard labor in a penitentiary or prison erected for that purpose; and for those of a lower degree, fine or imprisonment, or both, according to the nature and aggravation of the offence. In the U. States, no capital punishments are inflicted unless by the injunctions of some positive statute. In England, the same rule prevails to a limited extent. A few offences are punished by the common law with death, without any statute to direct it, founded either upon the notion of conformity to the divine law, or upon some positive law whose existence cannot now be traced. Such are murder, rape, robbery, burglary, and certain other felonies at the common law. In respect to other offences, for which no statute has prescribed any punishment, the general rule of the common law is, that they are punishable by fine or imprisonment, or by both. Considering the infinite variety of circumstances which may occur to extenuate or aggravate the offence, not only the common law, but the legislature has left much of the degree of punishment to the discretion of the judges who try the case. That discretion must be exercised in public; and experience has proved that it is, on the whole, wiser and safer to leave it to the natural operations of judicial responsibility, than, by any attempts to define and limit the exact degree of punishment, to run the hazard of introducing other mischiefs by excluding mercy where it might be most desirable. No code of laws could be sufficiently minute to embrace all circumstances; and none could, therefore, provide for a perfect uniformity of punishments, according to the absolute nature of the offence. Another inquiry is, Who are, in a legal sense, capable of committing crimes, so as to be amenable to punishment? The general rule of the common law is, that all perons are punishable for disobedience to, and infractions of the law. The exceptions are few, and are clearly defined. They are such as presuppose a defect of

reason and understanding, or of intention. A defect of understanding exists in the case of injuries committed by persons in a state of infancy, lunacy, idiocy, or intoxication. A defect of intention exists in the case of offences committed by chance, mistake and ignorance, wholly without or against the intention of the party. In respect to want of capacity, idiots, mad men, and other persons not at the time in possession of reason, such as somnambulists, are generally excused, whatever injuries they may commit. But the common law does not extend this indulgence to crimes committed by persons who are in a state of voluntary intoxication. It considers this circumstance rather in the light of an aggravation of the offence. But a distinction is here to be made. If the party be, at the time of the offence, drunk by the use of strong liquors, he is punishable, though he may be thereby reduced, at the time, to a state of insanity. But if drunkenness be only the remote cause of the insanity, and the party be not, at the time, under the influence of intoxicating liquors, the law treats his case like that of any other insane person. It does not look back to the original and remote cause of the insanity, to ascertain whether it has been produced by criminal indulgence, or neglect of duty, but to the immediate and operating cause, at the time when the crime is committed. The exception, therefore, of the case of insanity by imme diate intoxication, is carved out of the general exception in favor of insanity, and arises from, or at least is countenanced by, motives of public policy, to prevent the dangerous effects arising from indulgence in strong liquors. The common law is, in this particular, more severe than the civil law. The latter never punished capitally for an offence committed under such circumstances. (4 Bl. Comm. 26.)→→ As to crimes committed by infants. There are various ages of infancy, in the common law, for different purposes. general age of majority for all purposes is, in our law, 21 years; in the civil law, 25 years. Children under 7 years of age are deemed without discretion, and are uni versally exempted, by our law, from punishment. Between 7 and 14 years, they are said to be in a dubious stage, in point of discretion. If they, in fact, possess it, if they appear to have judgment, and understanding, and a sense of crime, they are liable to punishment; otherwise not. Generally, the rule of presumption is in favor of mercy, that an infant under 14 is doli incapax; but this presumption

The

may be removed by facts establishing a clear sense of the difference between good and evil, together with malice and superior cunning. (4 Bl. Comm. 22, 23.) However, it deserves consideration, whether this is a sufficient test of rational discernment of the nature of crime and duty; and judges may, well lean against convictions in such cases, upon principles not merely of humanity, but of philosophical responsibility. After 14, the general presumption is in favor of an infant being doli capax, and therefore he generally stands upon grounds similar to those of adults, until his actual incapacity is proved. -As to crimes committed by lunatics and idiots, the exception on account of want of capacity obviously applies only to cases where it exists at the time of the commission of the offence. Hence it is no excuse, if a person who has been insane commits an offence in a lucid interval, or at a time when his reason is clearly restored. So, on the other hand, a person may not be an absolute idiot, so as to have no discernment whatsoever, and yet may be excusable from punishment if his capacity be so weak that he does not, though an adult, understand clearly the distinctions between right and wrong. Extreme old age sometimes reduces persons to a state almost of fatuity, and exposes them to be imposed upon, and even seluced to the commission of offences, ander circumstances where they would be held no more liable to punishment than infants. Every thing depends upon soundness of mind and real discretion at the time of committing the offence. When a person becomes insane after the commission of an offence, and before trial, he is not, by the common law, ever allowed to be brought to trial, until he is restored to his reason. At whatever stage of a public prosecution the insanity occurs, it operates as a suspension of all further proceedings. Thus, if it occurs before arraignment, the party ought not to be arraigned for the offence; if after arraignment, he ought not to be required to plead; if after plea, he ought not to be put to trial; if after trial, he ought not to have judgment or sentence pronounced against him; if after judgment, execution of the sentence ought to be stayed. The ground upon which this rule of law is commonly supposed to stand is, that it ought never to be presumed that the party, if sane, might not suggest some defence that, in reason or justice, would entitle him to mercy, or to exemption from punishment. A reason quite as satisfactory is, that the 4

VOL. IV.

punishment of an insane person can produce no good result, either to reform the offender or as a public example. It would shock all the feelings of humanity to inflict punishment on those whom the visitation of Providence had already made objects of wretchedness and of compassion. In all cases where it is doubtful whether the party be insane or not, the fact is, by the common law, to be tried by a jury.—In respect to injuries committed without the intention of the party, as through misfortune or chance. Where an accidental mischief happens in the performance of a lawful act, in the doing of which the party uses reasonable care and diligence, he is wholly free from guilt, and it is deemed his misfortune; but if he does not use reasonable care and diligence, he is liable to punishment according to the nature and extent of his negligence. If guilty of gross negligence, he is sometimes punishable in the same manner as if the act were intentionally committed; if guilty of slight negligence only, he escapes with a more moderate punishment. If the mischief happens in the performance of an unlawful act, and a consequence ensues which was not intended or foreseen, the party is not free from guilt. But the degree of punishment ought to depend upon the nature of the unlawful act itself. A distinction is taken, in the common law, between cases where the original act is wrong and unlawful in itself (malum per se), and where it is merely prohibited by statute (malum prohibitum). In the former case, the party is responsible for all inci dental consequences of the unlawful act; in the latter, not. An illustration of these principles may be found in cases commonly put in our treatises on criminal law: If a man be at work with a hatchet, and the head flies off, and kills a standerby, this is not any offence, for the party was doing a lawful act, without any intention of hurt. So a parent may moderately correct a child, and if, in so doing, death happens, against his intention, it is mere misadventure. But if he corrects the child immoderately, or uses an instrument which is dangerous to life, or is wanting in reasonable caution, he is guilty either of manslaughter or murder, according to the circumstances and the degree of the punishment. If a man, riding a horse with reasonable care, accidentally runs over a child and kills him, he is not guilty of any offence. If he rides him furiously in a street where there may be danger, and the like mischief happens, he is guilty of manslaughter at least. If he rides him

furiously into a crowd, either from wantonness or thoughtlessness, and the like accident happens, it will be murder. If a person in England, duly qualified by law to kill game, accidentally kills another while so doing, he is guilty of no offence. If a person be prohibited by statute from killing game, and the like accident happens by his shooting, he is not answerable in any other manner than a person duly qualified. This last case illustrates the distinction as to cases of malum prohibitum. On the other hand, if a person, shooting at poultry belonging to another person, by accident kills a man, if his intention was to steal the poultry, it will be murder, by reason of the felonious intent: if his intention was not to steal, but it was an act of mere wantonness, it will be manslaughter only. In these last cases, the act is malum in se. In respect to injuries committed through ignorance or mistake. This may arise when a man, intending to do a lawful act, does what is unlawful. An illustration commonly put is that of a man intending to kill a thief or housebreaker, in his own house, who, by mistake, kills one of his own family. In this case, if he acted under circumstances of reasonable belief that the party killed was the thief or housebreaker, there is no ground to impute criminality to him. His conduct was founded in a mistake of fact, that is, of the person; for it is sometimes lawful, by the common law, to kill a housebreaker found in your house. But a mistake, or ignorance of law will not justify an act of the like nature. If a person supposes he has a right to kill a trespasser or outlaw, or excommunicated person, and he does so, he is guilty of murder.In respect to crimes committed by compulsion or force. The common law recognises but few cases in which the authority or command of a superior furnishes any excuse for the commission of an offence. In the case of children or servants, the commands of the master or parent furnish no excuse. In the case of a wife who commits a crime in company with her husband, she is deemed, by the benignity of our law, to act under compulsion, and therefore she is excused in all cases except murder, manslaughter and treason. These exceptions are founded upon the peculiar danger and atrocity of the offences, and the public policy of discouraging every motive to commit them. Where the wife commits the offence alone, without the company or compulsion of her husband, she is personally responsible in the same manner as if she were unmarried. There are

other species of compulsion recognised in the common law, which may excuse the commission of offences. Thus where a person commits an offence in consequence of threats or menaces, which induce a fear of death or other bodily harm. This is called duress per minas. But the fear which compels a man to do an illegal act must be just and well grounded, such as may intimidate a firm and resolute man and not merely of such a nature as may operate upon the timid and irresolute, otherwise it will constitute no excuse. Thus, in time of war or rebellion, a man may be excused for doing treasonable acts, if they are caused by the compulsion of the enemy or rebels. But the compulsion must not be a mere threat to do injury to property, nor even slight injury to the person, but a just fear either of death or of great bodily injury; and even in such case, it is the duty of the party to avoid doing such acts as soon as he safely may, by escape or otherwise; for if he does not, he will be liable to punishment as a volunteer. But even this excuse is not allowed in all cases, but seems principally confined to crimes positively created by society; for no man can justify or excuse himself for murdering an innocent person, under the pretence of fear or necessity, though he certainly may kill another in necessary self-defence. Another case of compulsion or necessity often occurs in the reasoning of speculative writers, whether a person in extreme want of food is excusable for stealing to satisfy his hunger. Whatever may be the doctrine of foreign jurists, or the opinion of publicists, it is certain that no such excuse is now admitted in the common law. If the offence should be committed under circumstances of extraordinary suffering, the case would rarely be brought before any tribunal of justice; and if it should be, the power of pardon in the government, and the humanity of the court itself, would either annul or mitigate the punishment. There is another case often put, where two persons at sea are shipwrecked, and get on a single plank, and it cannot support both, but both must be drowned unless one is displaced: what is then to be done? In such a case, the law of self-preservation has been supposed to justify either party in a forcible dispossession of the other. The common law seems to recognise this principle, and, in such a deplorable calamity, imputes no blame to the survivor.-We now proceed to notice another important distinction, which the common law acts upon in relation to crimes. It is the dis