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In the graduation of each of these scales, and in the relative adjustment between them, a perfect accuracy is unquestionably unattainable. The different shades both of crimes and of punishments are so numerous, and run so much into one another, that it is impossible for human skill to mark them, in every instance, distinctly and correctly. How many intervening degrees of criminality are there between a larceny of the petty kind and a robbery committed with every degree of personal insult and outrage-between a private slander and a publick inflammatory libel-between a simple menace and a premeditated murder-between an unfounded murmur and a daring rebellion against the government?
But though every thing cannot, much may be done. If a complete detail cannot be accomplished; certain leading rules may be established: if every minute grade cannot be precisely ascertained; yet the principal divisions may be marked by wise and sagacious legislation. Crimes and punishments too may be distributed into their proper classes; and the general principles of proportion and analogy may be maintained without any gross or flagrant violation.
To maintain them is a matter of the first moment in criminal jurisprudence. Every citizen ought to know when he is guilty: every citizen ought to know, as far as possible, the degree of his guilt. This knowledge is as necessary to regulate the verdicts of jurors and the decisions of judges, as it is to regulate the conduct of citizens. This knowledge ought certainly to be in the possession of those who make laws to regulate all.
"Optima est lex," says my Lord Bacon, " quæ minimum relinquit arbitrio judicis." If this is true with regard to law in general; it must be very true, and very important too, with regard to the law of crimes and punishments. What kind of legislation must that have been, by which "not only ignorant and rude unlearned people, but also learned and expert people, minding honesty, were often and many times trapped and snared!" Yet such is the character of the criminal legislation under Henry the eighth, given by the first parliament assembled in the reign of his daughter Mary; which could well describe, for it still smarted under the legislative rod. The candour, at least, of legislation should be inviolable.
"Misera est servitus, ubi jus est incognitum." When a citizen first knows the law from the jury who convict, or from the judges who condemn him; it appears as if his life and his liberty were laid prostrate before a new and arbitrary power; and the sense of general safety, so necessary to the enjoyment of general happiness, is weakened or destroyed. But a law uncertain is, so far, a law unknown. To punish by a law indefinite and unintelligible!—Is it better than to punish without any
A laudable, though, perhaps, an improvable degree of accuracy has been attained by the common law, in its descriptions of crimes and punishments. On this subject, I now enter into a particular detail. To the description of each crime, I shall subjoin that of its punishment; and
11. Ld. Bac. 249.
St. 1. Mary. c. 1.
shall mention, as I proceed, the alterations introduced by the constitution and laws of the United States and of Pennsylvania. The laws of other nations will frequently be considered in a comparative view.
OF CRIMES AGAINST THE RIGHT OF INDIVIDUALS TO THEIR PROPERTY.
EVERY crime includes an injury: every injury includes
a violation of a right. The investigations, which we have hitherto made concerning rights, will direct our course in that which we are now to make concerning wrongs.
I assumed, though, for the reasons assigned, I have not yet proved, that a man has a right to his property. I begin my enumeration of crimes with those which infringe this right.
I have observed that every injurious violation of our rights, natural and civil, absolute and relative, may lay the foundation of a crime. I did not mean, however, to insinuate, by this observation, that every injury ought to be considered by the law in a criminal point of view.