powerful in proportion as they are destructive of the public safety and happiness. Therefore there ought to be a fixed proportion between punishments and crimes." scale of crimes," adds he, "may be formed, of which the first degree should consist of such as tend immediately to the dissolution of society; and the last, of the smallest possible injustice done to a private member of that society." 1

To a scale of crimes, a corresponding scale of punishments should be added, each of which ought to be modified, as far as possible, according to the nature, the kind, and the degree of the crime, to which it is annexed. To select, where it can be done, a punishment analogous to the crime, is an excellent method to strengthen that association of ideas, which it is very important to establish between them.

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 public inflammatory libel-between a simple menace and a premeditated murder-between an unfounded murmur and a daring rebellion against the government?

But though everything 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

1 Bec. c. 6, p. 17, 19.

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; 2 which could well describe, for it still smarted under the legislative rod. The candor, 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 law?

11 Ld. Bac. 249.

3 St. 1. Mary. c. 1.

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 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.1

[1 Forfeiture of property for crimes is very rare in the United States, and the constitutional provision (Art. 3, § 3, ch. 2)-"That no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted”—marks the boundary and extent of forfeitures. During the civil war of 1861-5, the law of forfeiture was applied and estates confiscated; but it was held that though the estate of the owner was a fee-simple, the forfeiture could only affect his life interest and power of alienation, and did not cut off his heirs. Bigelow v. Forrest, 9 Wall, U, S. 339 ]

CHAPTER II.

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. For every injury let reparation be made by the civil code, in proportion to the loss sustained; but let those injuries alone, which become formidable to society by their intrinsic atrocity, or by their dangerous example, be resented by society and prosecuted as crimes. Agreeably to this principle, a private injury done without actual violence, cannot be prosecuted by an indictment.2 It is not considered as affecting the community.

This principle, however, seems to have gained its full establishment only by the liberality of modern times. It

1 Ante, p. 359.

2 Burr. 1703-1733.

is remarkable, that a law made on this liberal principle, in an early period of Pennsylvania, was repealed by the king in council.1 But this is not the only instance, in which the improving spirit of our legislation has been at first checked, but has received subsequent countenance by late decisions in England.

With the enjoyment and security of property, the security and the authenticity of its evidences is intimately connected. For this reason, dangerous and deliberate attacks upon that security or authenticity are crimes by the com

mon law.

Forgery, at the common law, may be described "the fraudulent making or alteration of a writing, to the prejudice of another man's right." For this crime, the punishment of fine, imprisonment, and pillory may, by the common law, be inflicted on the criminal.2

Among the Egyptians, public notaries, who forged false deeds, or who suppressed or added any thing to the writings, which they had received to copy, were condemned to lose both their hands. They were punished in that part, which had been particularly instrumental in the crime.3 In Lorrain, so long ago as the fourteenth century, forgery was punished with banishment.4

The first act of parliament, which appears against it, was made in the reign of Henry the Fifth. This act punishes it by satisfaction to the party injured, and by a fine to the king. But this first statute has been the fruitful mother of a thousand more. True it is, that the increase of commerce, the invention of negotiable and even current paper, the institution of national funds, and the many complex securities and evidences of real property have justly rendered the crime of forgery, beside its intrinsic baseness-for it is a species of the crimen falsi-a considera

1 R. O. Book A. vol. 1, p. 14. 1 Gog. Or. L. 59.

2 4 Bl. Com. 245.

4 Bar. on St. 380.

" Id. ib.