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criminal jurisprudence. It is impossible to establish general rules, by which a complete proof may be distinguished from a proof that is incomplete, and presumptions slightly probable may be distinguished from conjectures altogether uncertain.

If, therefore, the evidence of facts can be ascertained, distinguished, and estimated by no system of general rules; the consequence unavoidably is, that, in every case, the evidence of facts must depend upon circumstances, which to that case are peculiar. The farther consequence unavoidably is, that the power of deciding on the evidence of facts must be a discretionary power; for it is a power of deciding on a subject unsusceptible of general principles or rules.

And, after all, is it, at last, come to this? Do we live by discretionary power? Is this the final result of the boasted trial by jury? In Turkey, life and every thing precious in life depend on the nod of one man: here, it seems, on the nod of twelve. There is a difference, indeed, in number: but, in principle, where is the difference?

Such is, and such must be our doom. It is agreed, on all hands, that, in every state, there must be some. where a power supreme, arbitrary, absolute, uncontrollable: these are strong expressions for discretionary power. There have been, it is true, different opinions concerning the question-where does this power reside?

What security, then, it may next be asked, is there, under any government, for the enjoyment of property, character, freedom, and life; if, under every govern

ment, the last resolution of the tedious and expensive process is into arbitrary or discretionary power?

Let us not despair: perhaps, after a little investigation, we may be happy enough to discover some emerging isthmus, on which, amidst this unstable, watery scene that surrounds us, we may be able to find rest for the soles of our feet.

It has been shown, at large, that it is impracticable, by any determinate rules, to ascertain or graduate the force of evidence in facts; and that, consequently, juries, who decide on the evidence of facts, must possess discretionary powers. But though it be impracticable to ascertain this matter by determinate rules; is it, therefore, impracticable also to give and acquire some conception of it by a general reference? Perhaps not.

Let us try let the reference be as comprehensive as possible if we must live by discretion, let the exercise of that discretion be universally unanimous. If there must be, in every political society, an absolute and discretionary power over even the lives of the citizens; let the operations of that power be such, as would be sanctioned by unanimous and universal approbation. Suppose then, that, in pursuing this train of thought, we assume the following position-that the evidence, upon which a citizen is condemned, should be such as would govern the judgment of the whole society.

Let us, first, inquire, whether this position be reasonable: let us next inquire, whether, if this position is reasonable, the establishment of it would give, to the citizen, a just degree of security against the improper

exercise of discretionary power: let us, in the last place, inquire, whether, if this theory is eligible, it be possible to reduce its principles to practice.

1. I am first to inquire, whether the position—that the evidence, upon which a citizen is condemned, should be such as would govern the judgment of the whole society-be a reasonable position.

We showed, at large, in a former part of these lectures, d that, in a society, the act or judgment of a majority is always considered as the act or judgment of the whole.

Before the formation of society, the right of punishment, or, to speak with more propriety, the right of preventing the repetition of crimes, belonged to him who had suffered the injury, arising from the crime which was committed. In a society formed and well constituted, the right of him who has suffered the injury is transferred to the community. To the community, therefore, instead of the injured individual, he who committed the injury is now to answer. To answer to the community for his conduct, was a part of the social contract, which, by becoming a member, he tacitly and voluntarily made. In this manner, a complete right is vested in the society to punish; and a full obligation is


d Ante vol. 1. p. 310.

e Upon this principle of consent, all civil penalties are debts to the publick; from whence the Greeks and Romans used λver, and "pœnas solvere, luere," for undergoing a punishment, which was a conditional debt contracted by their own consent. Pet. on. Jur. 79.

laid on the individual offending, to be amenable to pu nishment.

The social contract is of a peculiar kind: when analyzed into its component parts, it is found to be a composition of agreements, equal in number to the number of all the members, of which the society is composed. To each of those agreements there are two parties. One member of the society is the party on one side: all the other members form the party on the other side.

The punishment of a crime in regulated society presupposes two things. 1. The crime must be authenticated. 2. The penalty must be ascertained. Upon the principles which we have laid down, each of those two prerequisites to punishment must be equally the act of the society-of the whole society.

With regard to each of these prerequisites, the society may act either collectively and personally, or by deputation and representation. If they act by deputation and representation, they may intrust one of the forementioned prerequisites to the management of one class of deputies and representatives; and, to another class, they may commit the management of the other prerequisite. With regard to both, however, the proceedings must be those of the whole society, or, at least, sanctioned by the authority of the whole society: for it must be remembered, that to the whole society the right of punishment was transferred, and with the whole society the engagement to be amenable to its justice was made.

On a nearer and more minute view of things, we shall discover a most material difference between the $ S


modes proper for the management of the different prerequisites; because, on a nearer and more minute view of things, we shall discover, in the management of those different prerequisites, a most material difference in the situation of the parties to the social contract.

Penalties may be adjusted, graduated, and ascertained by general rules, and against all the members of the society indiscriminately. In the consequences of the regulations made upon this subject, every member may be affected in a double capacity; he may be affected, either as the individual party to one agreement, or as forming one of the numerous party to each of the other agreements, of which we have seen the social contract to be composed. In other words, he may be affected either as the author or as the sufferer of the penalties. Impartiality, therefore, in the conduct of every member, may rationally be expected; and there will be little reason to use strong or numerous precautions against interestedness or its effects. If the society act by representatives, and a difference of sentiment takes place among them concerning any subject; the numbers on the different sides, in the representative body, will probably bear to one another a proportion nearly the same, as would be found if all the members of the society were personally assembled.

But when we attend to the management of the other prerequisite that of authenticating the commission of a crime--a situation of men and things, extremely dif ferent, appears to our view. Here no general rules can be adopted-no measures can be taken, which will equally and indiscriminately affect all the different members of the community in their turn. Here, the parties to


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