by fine practically amounts to a sale of criminal licenses. Government virtually says that for so much money so much crime may be expiated. The question for the citizen, not otherwise restrained, is, can he afford to pay the price? The answer will depend upon an examination of his purse. If he be rich, the penalty is nothing; if poor, it may amount to a prohibition; so that a fine operates as a great punishment, a small punishment, or no punishment at all, according to the state of the offender's coffers. This inequality is one strong objection; and another is that government is strongly tempted to push punishment to extremes, when paid for it in the receipt of fines. This danger may be small in this country at this time; but under a corrupt government, what an alacrity to punish would this motive produce! We know that there have been times when all crimes, however atrocious, could be expiated by money; and that corrupt governments have thus managed to draw an immense revenue from the depravity of their subjects. Even false accusations have been invited, in the most effectual manner, by giving the informer one-half the fine; but to the honor of our laws be it said, they hold out scarcely any encouragement to that most despicable class of men, mercenary informers. With some trifling exceptions, they hold out no other motive to citizens to inform against transgressors than that which they find in their regard for the public good. They even discourage informations without manifest cause, by a provision which exposes the wanton or malevolent informer to the payment of costs; and our experience has thus far proved that the office of informing may be safely left to the public spirit of a high-minded people, without the temptation of a bribe; but I shall not pursue this topic. Since fines are so much in favor, we have reason to rejoice that they cannot be excessive; and must content ourselves with this assurance.

Imprisonment. This punishment is effected either in penitentiaries, which are state prisons; or in jails, which are county prisons. The United States have no prisons, but make use of the prisons of the different States with their consent. As a mode of punishment, imprisonment has many strong recommendations. First, there is a peculiar fitness and propriety in withholding the benefits of the social compact from those who have violated its obligations. Society guarantees our civil liberty, on the condition that we obey and uphold the laws made to protect it. If, therefore, we break this condition by transgressing these laws, the deprivation of liberty is a just and natural forfeiture. Society enters, as it were, for condition broken, and resumes its grant; while the offender is left to learn from the loss of liberty how great is its value. Secondly, imprisonment operates more equally than any other punishment upon all descriptions of persons; since liberty is of very nearly the same priceless value to every one. Thirdly, imprisonment is more efficient than the punishments before described; since it physically disables the offender, for the time being, from continuing his depredations upon society. The man who has been whipped or fined,

is forthwith let loose upon society, with the power, and probably a disposition sharpened by exasperation, to repeat his transgression. But the man who is immured between prison walls cannot do harm. Fourthly, imprisonment admits of all degrees of severity, and can therefore be graduated better than any other punishment to meet all offences. It may take place in the gloomy dungeon or the cheerful light; it may be at hard labor or at listless ease; it may be solitary or in the company of other offenders; and it may be for any period, from a single hour to the whole of life. For these, and perhaps other reasons, imprisonment is unquestionably the best of all the methods of punishment. Moreover, convicts are not unfrequently compelled to support themselves by their own labor, and thus relieve the public of the burden. In our penitentiary, "hard labor" is always a part of the sentence; in our jails it is not; but the expense of aliment is there trifling, being confined by the sentence to "bread and water." Of late, public sentiment has been strongly inclining in favor of solitary imprisonment, and there are three strong arguments in favor of it. First, the convict cannot corrupt or be corrupted by others having less or greater experience in crime than himself; whereas promiscuous imprisonment must necessarily operate to some extent as a school for crime, even where prison discipline is the most perfect. Secondly, in solitary confinement there is always some prospect of reformation; and this should always be kept in view as a secondary object of punishment. Of this at least we may be sure, that if, in the long and lonesome hours, during which the solitary prisoner's mind must be thrown back upon itself, for want of other objects to fix it upon, reflection does not make him better, he is beyond reformation by any human means, and may be given up as a hopeless reprobate. Thirdly, solitary imprisonment is more effectual, as an example, than promiscuous imprisonment. It is sad for a man to be alone under any circumstances; but in a prison it must be terrible. To be convinced of this, we need not resort to the high-wrought picture of Sterne's captive; we need only to think of a man's social nature. The imagination cannot conceive of a fate more utterly appalling than that of solitary imprisonment for life. What are the momentary pangs of the most painful death, in comparison with the unutterable despair of entering a dungeon, never to come out? This is, indeed, a living and enduring death. It has all the awfulness of actual death, without its speedy oblivion.

Death. This is the last resort of the law. In this country, except under the military law, the punishment of death is always inflicted by hanging; the sheriff or marshal, as the case may be, is the executioner; and in order that even this punishment may not come within the prohibition of "cruel," it is attended by none of those aggravations of barbarity and torture which strike us with such horror in the codes of other countries. Formerly, executions were always public, under the belief that the example must have a salutary effect upon the thousands who throng to witness such spec

tacles; but this opinion is gradually changing in favor of secret executions; and I think the change a wise one. For the victim himself, there is no doubt that a secret death is best; because his thoughts are not drawn off from the contemplation of his awful situation, by a desire to make a last exhibition of hardihood, which the vulgar will applaud as heroism; and as to the rest of the community, it would seem that the tolling of a bell or the mere announcement in a newspaper, without any of the pomp and parade which make us forget the crime in our sympathy with the criminal, is calculated to produce at least as salutary an effect as a view of his struggles in the presence of a noisy crowd. But another question of much more importance is beginning to attract public attention; namely, ought death to be in any case inflicted as a punishment? Without attempting an elaborate discussion of this question, I shall briefly indicate the leading views entertained on each side. The question is twofold; first, as to the right; and secondly, as to the expediency, of capital punishment.

Those who maintain that society has the right, place it on the ground of self-defence. They admit that a strong necessity must exist, before society can be justified in taking the life of its members; but when such a case does arise, the right of self-defence takes precedence of every other, and the life that would be dangerous to society may be rightfully terminated. They also find authority for the exercise of this right, in the Old Testament, and in the general practice of mankind. On the other hand, those who deny the right, reason in this way: Society, they say, has no power but that which it derives from the consent of its members. But life is one of the inalienable rights of man. He cannot part with it if he would, until his Creator calls for it. No man can give a valid consent to his own death. As between individuals, the most unequivocal consent would not shield the slayer from the guilt of murder; and if one individual cannot authorize another to take his life, he cannot have authorized society to do it. Society, therefore, cannot have derived this power from consent; and consequently has not got it. Nor can the doctrine of self-defence be the foundation of such a right; since no individual can endanger the existence of society. Selfdefence authorizes one person to take another's life, in order to preserve his own; it is purely preventive, and has nothing to do with punishment. But society can never be placed in this predicament towards an individual, and therefore can never have occasion to kill in self-defence. Again the language of Scripture brings no aid to the argument, because none is more solemn and explicit than that which says, "thou shalt not kill." Besides, the doctrine of governing men by divine right is now exploded; and the fact that Jehovah, the author of life, in his immediate government of a peculiar people, did authorize the punishment of death, by no means justifies the inference that he has delegated this power to human governments. Such arguments, drawn from

the ancient theocracy, would prove vastly too much; and therefore cannot be used; and the same may be said of the argument from custom. What wrong can be named, that custom has not, at some period, sanctioned? Such, briefly, are the arguments for and against the right of capital punishment.

And the question of expediency is equally debatable, when the right is conceded. The great argument in favor of death as a punishment, is the terrific example it holds out to others. Not only does death render it certain that the same offender will never repeat the offence, but it has the strongest possible tendency to deter others from committing it. On the other hand, however, it is urged that the same result may be attained without inflicting death. Solitary imprisonment for life renders it almost equally certain that the offender will not repeat the offence; and as a terror to others, it is scarcely less effectual than death itself. At the same time, our sentiments of humanity are much less shocked at seeing the prison doors closed for ever upon a fellow-creature, than at seeing him suspended from the gallows. We feel that he has a space for repentance and reformation; instead of being sent suddenly away, reeking with guilt, to the presence of his final Judge. We also feel that he may, after all, be innocent: so uncertain is human testimony. We know that innocent men have often been condemned and executed; and in such cases an infinite wrong has been done, without the possibility of undoing it. The vital spark has been rashly put out, and all earth cannot rekindle it whereas the prisoner, when his innocence is discovered, can be set free, and thus be indemnified, in some degree, for the wrong he has sustained. These considerations, and others of a similar nature, are strongly turning public sentiment towards the abolition of capital punishment. The experiment was made by Catharine of Russia, and is said to have been entirely successful.

Apportionment of Punishment. Having thus described the actual modes of punishment now in use, the question arises, how these punishments are to be apportioned, so as to be just sufficient for each offence, and no more; for that punishments ought to be thus apportioned, is self-evident. But to effect the desired apportionment, not only as to different offences, but also as to different degrees of the same offence, has proved the most difficult problem in criminal legislation. In fact, while reason teaches that the degrees of criminality must be almost infinitely various, experience at the same time proves that no human legislation can specifically provide beforehand for those minute and shadowy differences. To remedy this defect, therefore, recourse is had to judicial discretion. Whenever the nature of the punishment admits of degrees, which is the case with all but death, a limited discretion is given to the judges, as to the amount of punishment. The law fixes the extremes; that is, it prescribes for each offence the largest and smallest fine, and the longest and shortest time of

imprisonment; and between these extremes judicial discretion is permitted to range, for the purpose of adapting the punishment to the aggravating or palliating circumstances of each case. Perhaps a safer depositary of this delicate power could not be suggested, whether we consider the rights of the public or the offender. Humanity being a prevailing sentiment, the presumption is, that if the judges are biased at all, it will be in favor of the criminal; he, therefore, will have nothing to complain of; and, on the other hand, the public are protected against the consequences of too much lenity, by having the limits of judicial discretion in all cases ascertained by the statute. But in this connection, there is one important defect, both in the State and federal divisions, which ought to be mentioned. It is, that with one or two exceptions, no provision is made for punishing the second offence more severely than the first; though the propriety of so doing is self-evident; for the very fact of repetition by the same offender, proves that the first punishment was not sufficient.

§ 189. Who are Exempted. (a) The general rule is, that no

(a) It is not strictly true, and has not been since McNaughten's case, 10 Clark & Fin. 200, that no insane man is criminally responsible, or that proof of the fact of insanity is proof of incapacity to commit crime. The law undertakes to determine what degree or form of insanity amounts to such incapacity. In that case the judges reported to the House of Lords: "To establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong." They also reported that in case of partial insanity, or insane delusion, "he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real."

In the United States, inability to distinguish between right and wrong as to the act charged as a crime is the generally accepted, and in some States the exclusive, test of such insanity as exempts from criminal responsibility. Commonwealth e. Rogers, 7 Metc. (Mass.) 500; State v. Johnson, 40 Conn. 136; Moett v. People, 85 N. Y. 374; State v. Spencer, 1 Zabriskie, 196; Commonwealth v. Mosler, 4 Barr, 267; Brinkley v. State, 58 Ga. 296; McAllister v. State, 17 Ala. 434; Bovard v. State, 30 Miss. 600; Dove v. State, 8 Heisk. (Tenn.) 348; Loeffner v. State, 10 Ohio St. 598; Hopps v. People, 31 Ill. 385; State v. Huting, 21 Mo. 476; State v. Mewherter, 46 Iowa, 88; People v. McDonnell, 47 Cal. 134.

The insanity of delusion is recognized as a defence in Commonwealth v. Rogers, 7 Met. 500.

The insanity of uncontrollable impulse produced by mental disease is recognized as a defence in Commonwealth v. Rogers, 7 Met. 500; Anderson v. State, 43 Conn. 514; Commonwealth v. Mosler, 4 Barr, 267; People v. Sprague, 2 Parker's Crim. Cases, 43; Scott v. Commonwealth, 4 Met. (Ky.), 227; Kriel v. Commonwealth, 5 Bush, 365; Shannahan v. Commonwealth, 8 Bush, 464; Stevens v. State, 31 Ind. 485; State v. Felter, 25 Iowa, 67.

The Supreme Court of New Hampshire in State v. Pike, 49 N. H. 399, and State v. Jones, 50 N. H. 369, discarded all tests of insanity adopted by other courts as rules of law, and held that insanity is a mental disease; that whether the defendant had a mental disease, and whether the act charged as crime was the product of such disease, are the decisive questions, and they are questions of fact for the jury. Accordingly the same court holds that it is not competent for a witness who is not an expert to give his opinion as to the sanity of the defendant. Boardman v. Woodman, 47 N. H. 120; State v. Pike, 49 N. H. 399.

The question how far drunkenness is admitted as a defence to a prosecution for crime, is fully discussed in the note to United States v. Drew, 1 Leading Crim. Cases, (2d ed.), 131, where there is a full citation of cases. The note closes with the following conclusions: First. That fixed insanity, or delirium tremens, though the result