ly did me any), yet I may lawfully kill the one, and cannot so "much as hurt the other *."

We may therefore very fairly state as convincing proofs of the imperfection of the science of Criminal Jurisprudence, first, The discrepancy in the opinions of able men with respect to its most important doctrines; and, secondly, The barbarism and absurdity of many of the penal laws of the most enlightened nations.

II. But the imperfection of any science is most likely to arise from one of two sources; either from its not being reduced to principles at all; or from its being founded on such principles as are erroneous. Now, we find that all or most of those authors who have written on Criminal Jurisprudence, have laid down certain principles on which they have built the doctrines of the science: if, therefore, it still remains in a state of great imperfection, we are led very naturally to presume, that those principles are erroneous.

It is a certain proof that a principle is faulty, if it leads, by fair reasoning, to conclusions which are repudiated by the common understanding and feelings of mankind.

The leading principle of the penal law, according to Montesquieu, is, That all crimes are to be estimated solely according to the degree of injury which is done to society through their commission. This is likewise the fundamental principle of the Marquis de Beccaria in his Essay on Crimes and Punishments. The same principle is indirectly recognised by Dr Priestley, when he says, "The object of the "criminal law, is to lessen the number of crimes in future, and "thereby to give every man a sense of his personal security; and, "if this could be done without the actual punishment of any cri"minal, so much evil would be prevented as his punishment im

plies. Consequently, punishment has no reference to the degree of "moral turpitude in the criminal*."

The above conclusion seems to follow naturally from the premises; but it is a conclusion which we may boldly affirm to be contrary to the decision of the moral sense, and that natural feeling of justice which is implanted in the human breast. The atrocity of a crime, or the moral guilt which it involves, ought to be in every case, if not the sole, at least the leading principle in determining or proportioning the measure of the punishment; and wherever that proportion is violated, of which the mind itself forms a most accurate estimate, we feel that injustice is committed. Supposing, therefore, with Dr Priestley, that it were possible to lessen the number of crimes without having recourse to the punishment of any criminal, it may be affirmed, in direct opposition to this writer, that evil, instead of being prevented by this impunity, would in reality be occasioned; in as much as injustice is one of the greatest of evils; whereas the punishment of a criminal, being an act of justice, is a good, instead of an evil.

To lessen the number of crimes in future, is undoubtedly an im portant object of the criminal law but it is neither its sole, nor even its primary object. The primary object of the criminal law, is the accomplishment of justice, by the proper punishment of crimes that have actually been committed. The prevention of future crimes, is a secondary end, which, in most cases, will be best attained by a due attention to the primary.

The foundation of criminal law is retributive justice, that great principle which regulates the redressing of wrongs, and the avenging of injuries.

PRIESTLEY'S Lectures on General Policy, p. 348.

Among

Among the original laws of our moral constitution, two of the most remarkable, and which tend most eminently to support the bonds of society, are, Gratitude for benefits received, which prompts to a return of kind offices; and Resentment of injuries, which incites to revenge, or to the punishment of the aggressor. As, on experiencing an important service from our neighbour, an emotion of gratitude arises in the mind, and we feel there is a debt created which we are uneasy till we discharge, by a reciprocal act or testimony of beneficence; so, upon the receiving of an injury, a feeling of resentment is roused which is not appeased till an adequate revenge is taken of the offender*.

A remarkable proof how congenial these feelings are to the nature of man, is, that the person who confers the benefit expects the return of gratitude as the repayment of a just debt, and feels disappointment and a sense of wrong, if that return is withheld †; while, in like manner, the person who commits an injury, is conscious of his own deserts, makes his account with the vengeance that is awaiting him, and suffers a punishment in his own remorse till it is inflicted.

Nor are these emotions confined to the persons themselves who confer, or who receive the benefits or the injuries. From that beautiful sympathetic frame of our nature, which leads us to participate in all the pleasures and pains, the happiness and misery of our fellow-creatures, we feel delight and satisfaction from every act of benevolence or of virtue, and experience pain and indignation from every deed of malice or of vice, though these in no shape are attended with consequences that affect ourselves.. Hence we delight to hear or to read of the reward of virtue, or the punishment

* Lord KAMES's Tract on the Hist. of the Criminal Law, p. 1, 2. 4., &c. + Hence, as Lord KAMES observes, come the expressions, solvere et pendere panas.

of

of vice; and this even in works of pure imagination. Hence we have a feeling of dissatisfaction, amounting even to indignation, when such acts of virtue or of vice are either entirely unrewarded and unpunished, or fail to receive that just proportion of reward or punishment, which the unerring criterion of the moral sense has ascertained to be their due recompence.

The preceding observations, clearly bring to view the great fundamental principle of Criminal Jurisprudence. Every act of wrong or injustice, excites indignation, and calls for revenge from the person injured; an indignation which is participated, and a vengeance which is approved of by the feelings of others; a retribution which is expected by the criminal himself, and justified by his own con

science.

III. This retribution or revenge, which, by the law of nature, belongs of right to the person himself who is injured, it has become necessary, in every civilized society, to surrender to the public, and that for many reasons both of justice and expedience *. I have already observed, that it is necessary for the accomplishment of justice,. that the retribution should be precisely commensurate to the injury. But there is a natural propensity in every man to overrate those injuries he has sustained, and to exceed in the measure of his revenge. Now, revenge or punishment is no further just than as it is approved of by the conscience of every reasonable and impartial man. It is therefore necessary that punishment should be awarded only by those who are impartial, in order that injustice may not be committed †. Moreover,

Lord KAMES's History of the Criminal Law, p. 35.

+"All the passions of human nature seem proper, and are approved of, when' "the heart of every impartial spectator entirely sympathizes with them. He there"fore

VOL. I.

Moreover, it must frequently happen, that the person who is injured is unable himself to take vengeance against the aggressor; for acts of violence and injustice are most commonly committed by the stronger against the weaker. It is therefore necessary, for the ends of justice, that punishment should be delegated to a hand which is always suf ficiently strong to coerce the boldest and most powerful offender.

But expedience, or public utility, likewise requires, that there should be a delegation of the right of punishment from the private party who is injured, to the State. A bold aggressor defends himself by violence; the weak call in the assistance of the strong; parties and factions are formed, to maintain, or to avenge the outrages of individuals, and the State is thrown into confusion. Thus, in all nations in that period of society when Criminal Jurisprudence is in its infancy, and the delegation of private revenge has but imperfectly taken place, we observe a perpetual series of feuds and hostile commotions, arising from the petty quarrels of individuals.

There is yet another reason why the power of punishing crimes should be vested in the State. Every criminal act is an offence or outrage against society. When murder or robbery is committed, the public peace is violated, the general security is broken, and every man feels, while the crime remains unpunished, that his own life and

property

"fore appears to deserve reward, who to some person or persons is the natural ob"ject of a gratitude which every human heart is disposed to beat time to; and he, on the other hand, appears to deserve punishment, who, in the same manner, is to "some person or persons the natural object of a resentment, which the breast of "every reasonable man is ready to adopt and sympathize with. To us, surely, that "action must appear to deserve reward, which every body who knows of it would "wish to reward; and that action must as surely appear to deserve. punishment, "which every body who hears of it, is angry with, and, upon that account, rejoices "to see punished."-SMITH's Theory of Moral Sentiments, vol. i. part 2. § 1.