the people, or the interests of morality. The principle of a popular government, a sentimental attachment to the community, its institutions and laws, need not,-neither can it-endure the intervention of the other two principles, as they are usually understood by writers on government :-principles, which regard the whole society as constituted to gratify the passions and appetites of one, or a few individuals. Such a mixture of heterogeneous principles, in a government with pains adjusted, must of necessity have a very considerable effect upon its legislation, upon the interpretation and the execution of its laws. It will have a tendency to dictate acts and rules of civil conduct, which can in no view claim the sanction of the moral sense. The spirit of the laws is directed by the effective principle, the principle by the constitution, or nature of the government. Perhaps the laws of England are the best that can consist with the mixed principles of that government. If this be true, Judge Blackstone's distinction between those laws that are morally binding, and those that are only politically so, is, so far as it applies to English laws, just and necessary; but he should not have considered it as he has done,-a common and necessary distinction in every code. It is, however, a severe, though an undesigned stroke at the principles of that government.

Can there be a more sure, a more safe criterion for deciding the goodness of any government than the tendency of its principles in legislation? That government, that constitution of society, the principles of which dictate those laws and those only, that are adapted to the present state of men and manners, and tend to social improvement, which induce a moral obligation under the sentence of the laws of nature, not of savage solitary nature, but of social nature in its improved and improvable state, is incontrovertibly good; so far as it deviates it is clearly faulty. Upon a candid examination, upon a fair comparison, it will be found that a representative republic is pre-eminently, if not alone, capable of these principles to their fullest extent. It is true, that in any government, circumstances foreign to its principles, may—and in this state of imperfection frequently will-concur to the adoption of bad laws; but if the constitution and principles be good, such laws will not have a long continuance.

The governments of the several American states, as well as that of the Union, are of the representative kind. We ought to know their principles, to study well their tendency, and to be able, both in theory and practice, to exclude all foreign principles.

Judge Blackstone was a British subject, high in favor with the government. He was enamored with the principles of their constitution; he has emblazoned them with all his rhetoric, and not the least some that are the most faulty; and probably to this, not less than to his great talents, he was indebted for the great reputation he enjoyed in that country. Unhappily his Commentaries contain the only general treatise of law, to which the law students in these States have access. In every section of the criminal code, and in all questions of a civil nature, where the prerogatives of the crown or the privileges of the peers intervene, the principles of the government have given a cast to his reasonings. I wish not to detract from the merit of the author, as a British subject; a writer, who has in a masterly manner delineated the laws and jurisprudence of a great nation, but under a government very different from our own. There are many things in his Commentaries which accord with the principles of our own governments, and which are founded on the universal principles of jurisprudence. These will, however, be found mostly to be derived from the popular part of the British constitution. The student should carefully learn to distinguish those principles, which are peculiar to that government, or governments of a similar constitution; to distinguish the reasons which are accommodated to those principles, or solely dictated by them. He ought to know that they are not universal; that in a repesentative republic they are wholly inadmissible. This is not enough; he ought to be led through a system of laws founded on the principles of our own governments, and a train of reasoning congenial to those principles. Such a system is yet a desideratum.*

*Since this was written that desideratum has been most amply and happily supplied by the publication of "Commentaries on American Law, BY JAMES KENT." In 4 Vols,

CHAPTER V.

Of Penal Laws.

Penal laws and laws relating to taxation, or for the purpose of raising a revenue to government, merit more particular attention, because they more than others immediately affect the lives, liberty, and property of the subjects. In treating of them, I shall consider the right and power of government, and the legitimate end to be attained in each.

Under penal laws I comprehend all those laws which inflict a penalty, whether it be capital, pecuniary, or personal, for the violation or neglect of any duty enjoined, either by the primary laws of nature, or the positive laws of society.

The right to punish individuals for crimes against society is not an arbitrary institution of civil policy. It has its foundation in the moral and social nature of man and is derived to government from that source through the civil compact. We have already seen that man was not formed for individual independence, but for society, for civil union in government. All the liberty of an individual, all his rights which can any way effect the rights and liberty of others are placed in an accommodation, a mutual compromise with the rights and liberties of all and every member of the society. To facilitate this accommodation and to render a compromise practicable, mutual and safe, is the object of civil institutions and laws.

If man be by nature a social being, it is an obvious conclusion that it is his duty to forbear any injury to the society of which he is a member; and that the violation of this duty is a violation of the laws of his nature. It may, perhaps, be here

thought sufficient to say, that rights and duties are reciprocal; every society must have a right corresponding with the duty of the individual; if the individual violate his duty to the society, the society have a clear right to take a satisfaction. But as this subject is of great importance in national jurisprudence, I shall endeavor to analyze the right and trace it to its source in the moral nature of man. Deity in the constitution of nature has not done every thing for man; he has established certain relations, from which result the laws that ought to govern his moral and social actions. He has given him powers and faculties to enable him to discover these relations and the laws that result from them. The mode of giving these laws their full effect is left to his sagacity, to the exercise of his reasoning powers. To enable him more steadily to pursue them he is furnished with a moral perception of right and wrong, and a sense of merit or demerit attending the observance or non-observance the moral sense and the sense of accountability as before explained, and which are generally comprehended, in the term conscience, which, when rightly informed, extends its authority to every moral, every social, and every civil action. Hence, on the perpetration of a crime, arise in the mind of the perpetrator the feelings of guilt, and the consciousness of a desert of punishment. These sentiments are common to men, both in a review of their own actions and in passing judgment on the actions of others. What might at first seem to be inconsistent with that universal desire of happiness, which belongs to the nature of every individual is, that guilt is sometimes in the mind of the guilty, attended with a strong desire of punishment; this is, what we generally call remorse. If punishment be inflicted by no other hand, self-punishment is well known to be the gratification provided by nature for the violent affection of remorse. From this view of the subject the right of punishing the guilty is clearly perceived to be derived from the relation of men in society. It was not alone from an extraordinary impression of the Divine anger on the mind of Cain, after the murder of his brother, but from a perception of those relations and the right resulting from them, that he is made to say, "whoso findeth me shall slay me."

The Marquis Beccaria has founded the right of punishing on

the same principles. "Let us (says he) consult the human heart; and there we shall find the foundation of the sovereign's right to punish; for no advantage in civil policy can be lasting, which is not founded in the indelible sentiments of the heart of man." In cases of mere private injury, the right is perceived to belong to the party injured. He has a right to demand reparation for the injury, and a caution against the like injury in future. The mode of obtaining both is to be regulated by the present nature of social rights. Where the right cannot be exercised by the party injured without danger to the social rights of others, the laws of social nature dictate a submission to an impartial tribunal; a provision which can be made and enforced in the union of civil society only. When a person is guilty of a violation of those rights, which more immediately affect the interest and happiness,-the peace and security of the whole, the right of prosecuting the injury is perceived to belong to the community, although the end is not generally the same as in the case of a more private injury, as we shall see presently.

In a state of any considerable degree of social and civil improvements, men endure with reluctance the exercise of the right of punishment by the party injured. This happens, not because men are more unfit for the exercise in this state, but because they have a nicer sense of right and wrong. Their social feelings are extended and refined. The security and happiness of each individual member becomes the interest, as it effects the happiness, of the whole. They perceive not only the inhumanity to which the practice tends, but the injustice, of which it is in almost every instance productive. They perceive, that the power of punishing can in almost no case be exercised by the party injuried, without a perpetual violation of the rights of others, of the obligations of morality, and the danger of a total annihilation of social happiness. Hence, it becomes the right, interest, and duty of every civil community, to punish by way of caution, all those injuries which disturb, or have a direct tendency to disturb their happiness, or to render it insecure. And it will extend to whatever the common sentiment has connected with the public happiness. It is evident, then, that the right of government, by way of