Imágenes de página




There seems to be a disposition in some minds to make a distinction between laws enacted by the legislature for the prevention of crime, and those which provide for the punishment of it, when committed. It seems, sometimes, to be thought, that a man may commit a breach of the preventive law without forfeiting his reputation as a good citizen. Is there any rational foundation for this opinion? Is not prevention better than punishment, and ought not that law, which prevents a riot, a battery, or a homicide, to be considered full as sacred as that which punishes it? Gentlemen, sober and discreet citizens do so consider it.

We have laws of this description-laws that were enacted for the prevention of immorality and crime. Are those laws observed as they should be? Are those acts held sacred, as they ought to be, as long as they are the law of the land ? Most undoubtedly they are open to discussion—we may question their policy; but, whilst they are in force, we ought as religiously to obey them as any other law. Oppose them we may—but the highest principle of all law—that upon which society is based—that in virtue of which the state exists, requires that this opposition should be conducted in a particular manner-that is, in a mode pointed out by law.

Gentlemen: the whole community-the whole people of this State are organized, as a body, for the purpose of enacting and administering laws. When the people speak through the legislature, their voice is law, and courts and juries hear and obey them; but, when they speak in any other way, courts and juries do not hear them, or should not; but proceed straight forward and administer the law as it is.

An act having a good object, as long as it is law, has a morally binding force not only upon every magistrate but upon every citizen, and the man who wilfully violates it, does a lasting injury to his own moral constitution by the prostitution of his moral reason—a reason which the sound philosophy of all time has regarded as a divine inspiration. Whence is it that law derives its obligation ? Let us enquire : it may be useful to go back occasionally and seek for first principles and look at the foundation of all law, and see what it is; and we may find that a violation of law always involves a violation of the moral principle, and is, in that sense, an offence against God and man.

Gentlemen : Where is this foundation? I care not for the speculations of theorists; I cast aside their puerile supposition of a social compact, and find this foundation in the constitution of the human mind, such as it came from the hand of God, and has grown to be under his providence. It is from the eternal laws, which God ordains for the government of mind, that human society comes, that human institutions emanate, and continue to subsist.

Law is well defined to be "a rule of action dictated by some superior power.” What is this superior power? Within our own community we refer it to the law-making power. But there is a rule of action which extends beyond this community and includes it, for there is that rule which is called the law of Nature-common to all mankind. By what superior power is this dictated? Unquestionably, if there be truth in the above definition, it is dictated by the Supreme Intelligence.

And in fact we find that it is no other than the dictates of a universal spontaneous reason, present in the heart of every human being, teaching what is to be done and what is not to be done—its omnipresence and uniformity everywhere vindicating its diversity. It is variously designated. It is called the moral law—the law of God --the law of Nature—the law of Reason; but under every designation meaning the same thing. It is of a reason ever present, ever dictating what is right and denouncing what is wrong, whether we obey or not.

This law lies at the foundation of human nature. It is the same in every breast and in every community, savage and civilized. But like every thing else that enters human nature, be it from above or beneath, it takes hue from its medium, and has its growth, progress, and development. For, when the criminal appetites have their growth, must not that which counteracts them necessarily have its corresponding growth and development? If the criminal propensities pass into all variety of action upon the objects of interest and cupidity, that multiply with every step of human progress, from the nakedness of the savage to the abundance of the civilized state; must not that reasonthat element of mind—which is itself law, written or unwritten, pass

into a corresponding variety, everywhere to encounter its antagonist power—its eternal foe.

Laws, therefore, multiply, as objects of human appetite and cupidity multiply; but however multifarious they may be, they still have—their object being legitimate and their form as perfect as may be—their foundation—their spirit—their soul, in the same divine reason. The distinction between natural and municipal law is truly a distinction made with reference to the objects of those laws, and not with reference to their origin. Natural law protects life, liberty, and the necessaries of life in immediate possession. Municipal law protects whatever the genius or industry of man superadds to these. Natural law in its simple form pertains to the whole human family. Municipal law is a modification of the natural through the instrumentality of man, whereby it adjusts itself to the various states and conditions of each particular member of this great family. Legitimate municipal law, there. fore, and natural law, flow from the same common fountain, and the obligations of both are essentially the same. They are the same universal reason translated into the language of time and space,

and speaking through circumstances and things as they are, various in various communities.

I know not, gentlemen, by what strange whim it is that some men, certainly not in other respects deficient, bring themselves to believe that certain of these municipal laws may be violated without moral guilt-without any actual offence against good conscience. The moral sense of the community has not become so perverse that it can tolerate a heresy like this. Suppose a man keeps a gambling establishment, that becomes the resort of young and old—there vice begins its riots; for a time it spreads distress and ruin around ; carries misery, and poverty, and wretchedness, and rags, to the domestic hearth, and finally plunges its victims into a premature grave. The legislature, taking into consideration the injuries inflicted on the community, passes a law prohibiting the keeping of such an establishment; are there not some who would secretly think that the keeper had certain rights, which had been infringed by the lagislature, and that he would not be a bad man, if he still continued his establishment in violation of law? This is a wrong principle, gentlemen, and that man's heart cannot be right that, for a moment, can tolerate it—and that community, which can think lightly of this or a similar error, places its own peace and welfare in jeopardy? It is not the indifference manifested toward a particular offence, that is to be followed by any very serious consequences; but it is the fact, which this indifference establishes, that the law is losing its authority and the bonds of society are breaking asunder, and that spirits, from which everything is to be feared, are gaining an ascendancy. Let it be remarked, that when freemen, who are, in this State, the fountain of law, tread the laws under foot, they are trampling on their own authority--they are putting themselves down, which can be done only by putting up something that is beneath them. They are committing treason against themselves.

Let it be understood and universally believed that municipal and natural law have the same common basis, that an offence against the one involves as much guilt as an offence against the other, and, then, let the public act on this faith, by placing the offenders on the same level. The great error of the times seems to me to be in this, that we lose sight of the community in our anxiety for the individual. The public feeling is such, that one who betrayed his country and involved a nation in ruin, would be less severely punished than one who committed an individual homicide. And this results from losing sight of the great principle, that all laws have the same common moral basis, and whenever truly announced by the legislature, are equally sacred.

All criminal legislation, whether it consists of acts that define offences or those that prescribe punishments, is but a repetition, in a more palpable and definite form, of that which already exists in the mind. In fact, all social institutions and all the forms of government, are no other than a sort of outward manifestation of those principles, which operate within us, and constitute the very foundation of our nature. And herein consists the necessity of obedience to the laws of our couutry. We cannot obey them without acting in conformity to the constitution of our own nature—we cannot disobey them without committing a violence on that constitution. True, the law itself may be imperfect-it may not truly express the demands of that constitution -- what then ?—shall the law be resisted by force ?—or shall it be fraudulently evaded ? No! To say nothing about the conscience, that freeman who does either, does not know his duty to himself-it cannot be that he sees that in violating the law he is violating bis own rights, as a freeman and a citizen. But there is a way in which such law may be opposed, and in that way, let it be opposed; but, in every other, sustained and respected as of the sovereign authority of the State.

Gentlemen, in looking at the letter of the law, we are too apt to forget that it has a spirit-almost invariably a spirit in the great social mind from which it springs—that in violating it we do more than violate the letter or offend against the intent of the legislature. Indeed,

we hardly ever think that a violence done to it is a violence done to those high and sacred moral principles within us, that have given it birth. Even the technical language in which the law speaks, contributes to withdraw our attention from this fact. For instance, legal writers divide offences into two classes. One they call mala in seevils in themselves—the other, mala prohibita-evils prohibited. Does not this phraseology tend to produce the impression, that the offences included in the first class, are bad in themselves, whilst those in the second, are bad merely because they are prohibited ? Now, is this a correct idea?

Gentlemen : We have seen that all laws may be considered as relating to two classes of objects; the first of which is universal—(as life, liberty and the necessaries of life)—and that the laws in relation to this class, are the laws of the whole human family. Now offences against these are what are as above designated—evils in themselves. But there are certain objects which are to be found only in possession of particular communities—objects superadded to those belonging to everybody; and the law in relation to these objects, though not less the offspring of the omnipotent reason than the first, is called municipal law. Offences against this law are named evils prohibited. Why? Not as I apprehend because they are not evils in themselves, but because they can be perpetrated only within the sphere of particular portions of the human family, and so come there to be specially prohibited. But they are not the less violations of the great law of reason for being less than universal.

To illustrate: mere savages deal only in barter and exchange. They have no circulating medium, and consequently the crime of counterfeiting cannot with them exist. But let them take one step and introduce coins; instantly the offence of counterfeiting becomes possible. It exists. Moral reason repels it; that is, counterfeiting is already a crime in itself—really malum in se. Human legislation now comes and describes the crime, and provides a special punishment for it. Now from this legislative act it takes its place in the class called mala prohibita. But this prohibition has only brought an offence, which already existed in foro conscientia, within the jurisdiction of a court by prescribing punishment. The class mala prohibita is criminal for precisely the same reason that the class mala in se is criminal. Both are criminal, because both are violations of the great social principle, which gives life to all law. An act may be unwise, impolitic; individuals may know it to be so, (or think they know) and thus it may not be the legitimate offspring of this principle; but

« AnteriorContinuar »