dency to do temporal injury to society, and not because of their abstract wickedness or sinfulness, that human law interposes to punish them. This idea has been sufficiently developed before. Every crime indeed involves a private injury as its immediate consequence; for society can only be reached through individuals. And the right to a civil remedy is only suspended, not annihilated, by making it punishable. In some instances, as we shall see, special provision is made for private compensation as well as punishment. But the true and only reason for making any given act a crime, is the public injury that would result from its frequent perpetration. Each single instance is an individual injury; frequent repetition would make it a social injury. Accordingly, society takes the most efficient measures for its prevention, by appealing to the fears of mankind. The crime is first accurately defined, and the requisite punishment meted out to it; and then government itself becomes a party to the prosecution of the offender, in order to insure its being carried into effect; for the certainty of punishment is even more effectual in preventing crimes, than any degree of severity with a probability of escape. But while the only legitimate object of punishment is to protect society against the repetition of crimes, humanity dictates that the reformation of the offender should also be effected, if possible.? Yet as government has no concern with men, except as members of society, it is obvious that their moral improvement can never properly be made the primary object of punishment. Nor, on the other hand, can vengeance ever properly be an object of punishment, even in the slightest degree. To suppose this would be to clothe government with the attributes of a fiend. Self-protection, then, is at once the foundation and the end of the power which society exercises, of punishing its members. So true is this, that if a case could be supposed, in which it would be perfectly certain that an act, however atrocious, would never be repeated by the same or any other person, there would be no motive for punishing it. In preventing the repetition of crimes, punishment is designed to operate both upon the individual offender, and upon the community at large. Upon the offender himself it operates in one of these ways: namely, by physically disabling him from repeating the offence; or by dissuading him from it through the recollection of past suffering; or by both of these together. Upon the community at large, it operates only by the terror of example. Hence it follows, that the mode and measure of punishment are to be determined, not so much by the abstract nature of the offence, as by its liability to frequent repetition; and also, that no act should be punished at all, the repetition of which does not injuriously affect the temporal welfare of society. In England and in several of the States, the common law prevails in the punishment of crimes; and many acts are punishable from precedent, which have never been made so by legislative provision. But the manifest evil of this doctrine is, that the majority of men, un

skilled in the law, cannot be supposed to know beforehand, whether a given act will be criminal or not. In fact, the accumulation of precedents through the lapse of centuries, must render it difficult for the most consummate lawyer to be able to pronounce at once with certainty on the subject. And yet it is absolutely necessary to act upon the well-known maxim, that ignorance of the law is no excuse for its violation; because, otherwise, ignorance would always be pretended. This consideration alone is sufficient to demonstrate the importance of requiring every offence to be defined by the legislature, together with its punishment; and accordingly it has become a fundamental doctrine in the federal courts and in the courts of this State, that they have no common-law jurisdiction of crimes; and cannot treat any act as an offence, until the proper legislature has declared it to be such, and meted out the punishment. (a) With regard to the federal courts, this doctrine rests upon the absence of any power in the federal constitution to punish crimes except in certain specified cases before enumerated, for which Congress is to provide. A different opinion has been sometimes entertained; but this is now the universal sentiment: and the happy consequence is, that on a few pages of the statute book may be found enumerated all the offences which can be punished by the federal or State government, and the measure of punishment annexed to each. So that the only use now made of the criminal part of the common law, is to furnish the outlines of criminal procedure, and define the terms employed in the statutes. If there be any evil to be apprehended from this doctrine, it is that cases may arise in which men cannot be punished, however they deserve it, because the legislature has not anticipated their offences; but this objection weighs hardly a feather against the inestimable privilege of having every offence, for which punishment can be inflicted, distinctly and accurately defined; (b) instead of being left to be col

(a) U. S. v. Hudson, 7 Cranch, 32; U. S. v. Coolidge, 1 Wheat. 415; Key v. Vattier, 1 Ohio R. 132; Smith v. State, 12 Ohio St. 466. The same rule prevails in Indiana and Iowa, though in those States it is specifically prescribed by statute. Beals v. State, 15 Ind. 378; State v. O. & M. R. R. Co. 23 Ind. 362; Estes v. Carter, 10 Iowa, 400. In the other States formed out of territory formerly under the British crown, the courts have a common-law criminal jurisdiction. Punishments, indeed, in such States are provided for by statute; there being, generally, a provision that all crimes and offences the punishment whereof is not specifically provided for by statute, shall be punishable by fine or imprisonment, or both. In such States common-law process and procedure are used, so far as not otherwise provided by statute; crimes are mostly defined, but in many cases are only named; the common-law supplying the definition. But common-law crimes, even if not named, are indictable. As it is held in Minnesota that conspiracy is an indictable offence, though not in any way named in the statute. State v. Pulle, 12 Minn. 164.

(b) The State constitutions generally contain a provision that the indictment must exhibit the nature and the cause of the accusation against the defendant. Under this it has been held that the legislature has not power to dispense with such allegations in an indictment as are essential to reasonable particularity and certainty in the description of the offence. McLaughlin v. State, 45 Ind. 338. But this constitutional provision does not require time, place, circumstances, or mode of commission to be stated. Hence a statutory provision that in an indictment for murder in the second degree or manslaughter, it shall not be necessary to set forth the manner in which,

lected from doubtful precedents, established in a very different state of society, and scattered at remote intervals, through the reported decisions of seven or eight centuries.

The present condition of our penal legislation is this: First, we have an act for the punishment of crimes, including murder and all crimes punishable by imprisonment in the penitentiary, except two or three which are elsewhere provided for. This act contains a general provision for punishing those who aid, abet, or procure; and another provision disfranchising the convict from the privilege of voting, holding office, or being a juror or witness, unless he obtain a general pardon, in all cases except manslaughter and duelling. Secondly, we have an act for the punishment of offences, including a great variety of offences punishable by fine, or imprisonment in jail, or both; but there is no general provision against aiding, abetting, or procuring, nor for disfranchisement. Thirdly, we have an act for the prevention of immoral practices, and another for the prevention of gaming, including a variety of offences against good order and good morals, chiefly punishable by small fines. Fourthly, we have a great number of distinct penalties scattered through the statutes, relating mostly to the neglect of official duties, but including several other miscellaneous matters. It will thus be seen that, however excellent in other respects, our criminal law is greatly deficient in method and concentration. We have the disjointed fragments, but not a complete system. And the same is, in a great measure, true of the criminal legislation of Congress. What we want, therefore, is a revised criminal code, in which all penalties should be brought together and arranged in systematic order. And in framing this code, occasion might be taken to correct an evil in our mode of defining crimes, which I will here point out. Instead of giving such general definitions as will include all cases coming within the reason of the law, our legislature has undertaken to enumerate, in each case, the particular subjects, with respect to which the offence may be committed. For example, in defining forgery, instead of using some general term which would include all matters that may be forged, and not exclude any, the statute attempts to specify every writing which can be the subject of forgery. The same is true of the definitions of perjury, larceny, arson, burglary, and many other offences. Now, to say nothing of the want of brevity in this mode of definition, the obvious objection is, that no legislative foresight can be expected to particularize so fully as not to omit any thing coming within the principle. And yet on the maxim that where enumeration is attempted, all particulars not mentioned are excluded, it follows that if a single particular be omitted, there can be no punish

or the means by which, the death was caused, but it shall be sufficient to charge that the defendant did purposely and maliciously, or did unlawfully, kill the deceased, is not unconstitutional. Wolf v. State, 19 Ohio St. 248. A city ordinance providing for the punishment of " any known thief" found within the limits of the city is valid. Morgan v. Nolte, 37 Ohio St. 23.

ment for that case. Finally, the framing of such a code as is here suggested, would furnish the best possible opportunity for making any other improvements suggested by experience. In a system so arranged, the slightest want of harmony or symmetry would at once be seen; and although absolute perfection could not be attained, this would be the surest method of approximating towards it.

Again, not only must all offences be expressly provided for by the legislature, but the law must be made before the act is committed. In other words, there can be no retroactive criminal legislation; and this doctrine prevails throughout the United States. Both the federal and State constitutions, as we have seen, prohibit the enactment of ex post facto laws; and by these are meant retroactive criminal laws. (a) Any law, therefore, which makes criminal an act which was innocent at the time of its commission; or which aggravates the punishment of a crime after its commission; or which renders conviction more easy than it was when the crime was committed, would be unconstitutional and void. But it is presumed that laws which favor the offender, by diminishing the punishment, or rendering conviction more difficult, would be valid, although retroactive; because they are to operate for the benefit of the accused. The result is, that we enjoy the glorious privilege of knowing that the past is secure, so far as punishment is concerned. Under no state of excitement can a vindictive legislature animadvert upon past transactions. If we take care to escape existing penalties, we need be under no apprehension as to retrospective ones. But with regard to the acts which may be declared criminal, there is no express constitutional restriction, either upon Congress or the State legislatures. This is properly left to be determined by the exigency of time. Whatever act, therefore, tends to injure society, in a degree sufficient to attract public animadversion, may be declared criminal; but with regard to the mode and measure of punishment, as well as the forms of proceeding from the commencement to the conclusion of a criminal prosecution, there are, as we have seen, a variety of constitutional provisions, all tending to secure the offender against unnecessary suffering. All these provisions have been commented upon in connection, and will be referred to again. I shall here merely recapitulate those which relate to the mode and measure of punishment. 1. Excessive fines cannot be imposed. 2. Neither cruel nor unusual punishments can be inflicted; that is, there can be no unnecessary torture or barbarity in administering punishment; and no exercise of invention in devising new modes of punishment. 3. Banishment cannot be resorted to as a mode of punishment. 4. There can be no cor

(a) See Calder v. Bull, 3 Dallas, 386; ante, p. 215. When a criminal statute is repealed, and there is no provision in the repealing act saving offences committed or prosecutions pending, no conviction can legally be had after such repeal under such statute. Calkins v. The State, 14 Ohio State, 222.

ruption of blood or forfeiture of estate; or, in other words, the consequences of punishment must terminate with the person of the offender. The result is, that our criminal code cannot fail to be humane, so long as the constitution endures. As the power of punishment is the most dangerous to the safety and liberty of the citizen, with which any government can be intrusted, so no power has been guarded with more scrupulous jealousy by all the American constitutions. In this respect, we have immeasurably the advantage of all other nations, ancient or modern, as will be abundantly evinced in the course of our observations. In the two great points of simplicity and humanity, the criminal code of this State, for example, might safely challenge a comparison with any code in the civilized world. It often wants method and congruity in its structure, but the principles upon which it is framed are such as philanthropy must ever contemplate with satisfaction.

§ 188. Modes of Punishment. The punishments now in use may be divided into four classes; namely, corporal punishments, fine, imprisonment, and death. Of these in their order.

Corporal Punishment. Perhaps confinement in the stocks and pillory would hardly rank among corporal punishments; their object being disgrace, rather than pain. These punishments, however, once so prevalent, have nearly, if not entirely, gone out of fashion, in this country; whether wisely or not may admit of much doubt. There are some offences for which disgraceful punishments would seem to be peculiarly appropriate; and there are many persons upon whom they would operate with peculiar efficiency. But by corporal punishment we commonly understand whipping, branding, cropping, and the like. These, however, like the other, have nearly ceased to be inflicted. Whipping is indeed authorized in two or three cases, under the acts of Congress; (a) and is practised to some extent in several of the States; but in this State there has been none of it since 1815. The fact is, the spirit of the age is opposed to corporal punishment in every shape. There is too much of the appearance of savage ferocity in causing the human body to smart and bleed under the lash or the iron. Such things are bad enough for brutes; they are too bad for men. This at least seems to be the growing opinion of the age; and it speaks well for the march of humanity.

Fine. Punishment by fine is very generally practised throughout the United States. The constitution sanctions moderate fines, by declaring that they shall not be excessive. These considerations should induce one about to question their expediency to doubt the correctness of his own judgment; nevertheless, I cannot help regarding mere pecuniary punishments as impolitic at least, if not unjust. If we can forget the imposing authority of usage, and view the matter as a new proposition, we shall see that punishment (a) It is now abolished as a punishment both on land and in the navy and merchant service. 5 U. S. Stat. at Large, 322; 9 id. 515.