`Bentham, in his treatise on punishments, advocates the absolute theory, subject to the following qualifica

(1) The evil of the punishment must exceed the advantage of the offence: (2) The severity must be increased as the certainty is diminished:

(3) The greater the offence, the more severe may be the punishment adopted for the chance of its prevention :

(4) Punishments may be varied with the sensibility of the offender:

(5) "Real" punishments should be "apparent" for the sake of example: (6) The power of further injuring should be taken away or reduced:

(7) Recompense to the injured party should be kept in view. See summary in Montague on Punishment, i. 211 et seq.

cepted and elaborated as the basis of penal law by some of the most practical of contemporary jurists. Bismarck is no idealist, yet we find Bismarck, in tions: a speech in the Prussian Herrenhous, in 1872, adopting the Hegelian theory of punishment, and illustrating it by the famous maxim which Meyer has taken as the motto of his late valuable treatise on criminal law: "Laws are like medicines; they are usually nothing more than the healing of one disease by another disease less, and more transient, than the first." Certainly Hegelianism, in adopting and sustaining philosophically the theory of a just retribution as the sole primary basis of punishment, exhibits a healthy contrast to the sentimentalism of humanitarian philosophers who ignore the moral and retributive element in punishment, making its pri- According to President Woolsey, the mary object to be the reform of the retribution theory which he vindicates alleged criminal, and example to the " assumes that moral evil has been community. To such theorists the committed by disobedience to rightful final answer is, that until a man is commands; that according to a proproved to be guilty of a crime we priety which commends itself to our have no right either forcibly to reform moral nature it is fit and right that him or to punish him as an example evil, physical or mental, suffering, to others; and that neither reforma- or shame should be incurred by the tion nor example will be promoted by wrong-doer, and that in all forms of assigning to him, after he is convicted, government over moral beings there a punishment disproportioned to his ought to be a power to decide how offence. At the same time, in the ap- much evil ought to follow special plication of such punishment, reform kinds and instances of transgression. and example are to be kept incident-. . . Its province (that of the State) ally in view. Conviction and sen- is confined to such actions as do harm tence are to be according to justice; to the State, or to interests which the but prison discipline is to be so applied as to make the punishment conduce as far as possible to the moral education of both criminal and community.

The general question of the limits of punishment will be found discussed by Plato, in Gorgias (ed. Bipont. 4, pp. 49, 57); and in de legg. (lib. 9, 10, 11); and by Aristotle, Ethics, book 5, chap. 8.

State exists to protect.

.. Its object in punishing is not, in the first instance, to punish for the sake of punishing, because so much wrong demands so much physical suffering; but to punish-punishment being in the circumstances otherwise right— not directly for the ends of God's moral government, but for ends lying within and far within that sphere." Woolsey's Political Science, 107.

Sir J. Stephen speaks thus to the sanction of that part of morality which same effect: is also sanctioned by the criminal law. "The infliction of punishment by The criminal law thus proceeds upon law gives definite expression and a the principle that it is morally right solemn ratification and justification of to hate criminals, and it confirms and the hatred which is excited by the justifies that sentiment by inflicting commission of the offence, and which upon criminals punishments which constitutes the moral or popular as express it " 2 Hist. Crim. Law, 81. distinguished from the conscientious

CHAPTER II.

DEFINITION AND ANALYSIS OF CRIME.

Crime is an act made punishable by An act, when prohibited by statute, is

§ 14. AN offence which may be the subject of criminal Crime is an procedure has been defined to be an act committed or act made punishable omitted in violation of public law, either forbidding or by law.

commanding it.' This definition, however, though adequate in those States in which there is no common law, fails in States in which there is recognized, as will presently be seen, a common law, which

1 "A crime or misdemeanor (delict) is an act committed or omitted in violation of a public law, either forbidding or commanding it." Stephen's Com. iv. 3, note (d), adopted in Nasmith's Inst. 63. See Amos on Jurisprudence (London, 1872), 286; 1 Stephen's Hist. Crim. Law, 3. The latter's definition is, however, too comprehensive.

"A criminal act is one which in some way or other subjects the actor to punishment." Broom's Phil. of Law, 163. To this is added (164) that a "crime is constituted by an overt act done with a guilty intent, or includes a guilty mind, knowledge, or possession, affecting or prejudicing the public." This is defective in not including offences which are criminal from want of intent, i. e., from negligent omission to perform a duty, or in violation of the positive prohibition of a police statute. See, also, Hälschner, System, i. p. 19; Whart. Com. Am. Law, Chaps. I., II., and III.

The word crime "comprehends such offences as are supposed to be directed against the essential welfare of the State, or the great fundamental basis of society, as regards the protection of person, property, and reputation." 16 Law Mag. & Rev. (4th ser.) 65. See, also, 28 Am. L. Rev. 368.

effectual." Amos on Jurisprudence (London, 1872), 286.

Sir J. F. Stephen's definition is as follows: "The criminal law is that part of the law which relates to the definition and punishment of acts or omissions which are punished as being (1) attacks upon public order, internal or external; or (2) abuses or obstructions of public authority; or (3) acts injurious to the public in general; or (4) attacks upon the persons of individuals; or (5) attacks upon the property of individuals or rights connected with, and similar to, rights of property." 1 Hist. Crim. Law, 3. This, however, is too comprehensive. The last head, for instance, would include trespasses as well as larcenies.

"As law is the necessary form in which right is embodied, crime, not indeed in its essence, but in its form, presupposes law, and must, therefore, be called an unlawful act." Hälschner, System, i. p. 19.

Mr. Livingston does not attempt a definition. "All contraventions of penal law," he tells us, "are denominated by the general term offences. Some division was necessary to distinguish between those of a greater and others of a less degree of guilt. No scale could be found for this measure so proper as the injury done to society by any given act." That "offences," however, are not convertible with "injuries done to society" is plain, since there are many "injuries" done to society which are not "offences," so far, at least, as to be subject to indictment. I have discussed this subject

"A crime may be provisionally defined to be an act which the State absolutely prohibits, or a forbearance from an act which the State absolutely commands to be done, the State making use of such a kind and measure in greater detail in my Commentaries of punishment as may seem needed to on American Law, Chapters I., II., render such prohibition or command and III.

determines, from the reason of the thing, that a particular act is an indictable offence. In such States the definition before us is a petitio principii, it being equivalent to saying that an act is a crime because it is forbidden by law, and that it is forbidden by law because it is a crime. When we seek, however, for a test to determine, in States where the common law obtains, whether a particular offence, as to which there is no statute, or no prior ruling specifically applicable, is indictable, then we must go further than the definition above given, and hold that at common law a wrong which public policy requires to be prosecuted by the State is an indictable offence. The wrong, however, must be one which violates the general sanctions of the law, though it is not necessary that it should be prohibited specifically by prior statute or prior judicial decision.*

vertible.

§ 14 a. It has been often said that at common law indictability and immorality are convertible terms.3 So far, however, Immoralfrom this being the case, there are indictable acts which ity and indictability are not immoral, and immoral acts which are not indict- not conable. Assaults of all kinds are indictable; but all assaults are not necessarily immoral. An assault in self-defence is the exercise of a right; and waiving this, as presenting a question of contingent indictability, there are many cases in which a man may be convicted of an assault which is in itself not immoral, as when he acts under a mistake of fact or of law. Honest belief, also, as we see elsewhere, that an action is right, while it purges the action from immorality, does not relieve it from indictability. The morality of an act depends upon its conscientiousness; and unless we recognized the rights of the individual conscience in this respect, even as against the opinion of the majority, no ethical system could be constructed. On the other hand, there are numberless immoralities which the State does not and cannot undertake to punish.5 We must, therefore, reject immorality as the condition of indictability, and fall back upon the public sense of right and public