lishing sounder principles. Many questions of criminal

general rules of justice, and developed by science, the Many distinctions will also

law will be supported by the the clearer these rules are better will be the legislation. be stated, by means of scientific discussions; as, for instance, in a case of attempt to commit a crime, or the different sorts or degrees of accomplices. And, in this connexion, it must be remarked, that the German legislator finds ample aid from science. For centuries, Germany has possessed great jurists; and during the last fifty years much has been done for criminal jurisprudence. We have many remarkable works, which ably treat of the right of the state to punish, the conditions of just punishment, and the principles by which an accusation of crime must be supported; and in these will be found many applications of important theories, which are well worthy of being followed.

And here we must revert to a peculiarity in the German study of jurisprudence. We have the Roman law, and after that, the old German law, which covers those cases not provided for by the first. Now, this Roman law, which is a collection of decisions made by the jurists and by the emperors, not only does not contain a complete system of legislation, but has many contradictions. Extensive historical attainments, to the acquisition of which a whole life may be devoted, are requisite to the proper study of this law; and this causes the minds of those who cultivate it, to incline with a peculiar bias towards such antiquarian researches as throw light on their favorite pursuit.

The next source of criminal law in Germany, after the Roman jurisprudence, is an ancient collection made in 1532, which was good for the time, but by no means contained a complete system of criminal legislation. This collection is called the Carolina, and was published by the emperor Charles V. It provides many severe punishments, particularly death; also mutilation, as, for example, slitting

of the nose, the ears, and the like. And, again, for many crimes, no punishment is provided at all. The German jurists have endeavored, by their juridical studies, to bring this collection of 1532, into harmony with the old Roman criminal law; and this, again, has given a peculiar turn to their pursuits, through which the practical wants of life have been overlooked. It was perceived, that a collection issued three hundred years ago was not suitable to the present times; thus, for instance, it does not provide any punishment by means of imprisonment; whereas, at the present time, this has become a general punishment. For the punishment of death was established by the law of 1532, as a universal punishment for the most cases; whereas, the better judgment of our days would award it only to the worst crimes.

The students of criminal law range themselves in parties. Some are for resorting to the old law, and expounding it by the light of history, and holding by that which has been. once established. Others allow themselves, in various ways, to adopt different distinctions and means, in order to avoid the old law, and, pushing their views to extremes, make their system so mild as almost to do away with penal law. Others, again, follow the philosophical spirit, which for the last forty years, has occupied the best minds. They invoke the aid of philosophy in establishing the general principles of penal law, and determine all questions. with reference to these. For instance, if the question arises, whether it is a criminal attempt, where a person intended to poison another, as with arsenic, but, through some mistake or change, administered sugar instead, this matter is treated by different jurists according to the schools to which they belong. The partizans, who hold that the object of punishment is intimidation, or the prevention of crime, are for punishment in this case; for, say they, the person, who this time gave sugar only, the next

time will be more wary, and be sure to administer poison; wherefore, he should be intimidated. On the other hand, the supporters of the principle, known as that of justice, hold that he is not punishable; since he has done nothing forbidden by the law; for the law does not forbid giving sugar to another.

From this condition of the science of penal law, it is evident that it was cultivated in a too one-sided way. All are disposed either to explain it by history, or solve its questions by philosophy. Its practical character has not been enough studied. The manners of the people, the wants of the age, the experience of the actual working of certain punishments, were not sufficiently regarded. The influence of these mis-directed studies over German criminal legislation, appears, in the prevalent opinion, that codes must be fashioned according to system, in the want of clear practical views, and in a too great adherence to hitherto received notions.

The consideration of the different criminal codes of Germany may come under the following heads.

I. Prussia. The first attempt in Germany to codify the criminal law was the Prussian code of 1793. This contains one thousand five hundred and seventy-seven articles. The hope was indulged in Prussia, that, by the number and minuteness of its provisions, all possible cases might be determined by the law. Notwithstanding the details of this code, there is no country, in which so many expositions, supplements and ordinances, have been found necessary in order to illustrate the legislation, as in Prussia. The reason of this is to be found in the obscurity of the code, and in the great number of rules, by which the judge, instead of being assisted, is often led into error. Thus, there are no distinct definitions of crimes laid down, but certain punishments provided for certain possible cases, so that the judge may easily find contradictions between the

rules touching a particular class of crimes, and the loose. notions of crime in general.

It is apparent in every part of this code, that the legislator, in determining the different punishments, was governed by the principle of intimidation. The severest punishments are established; that of death occurring very often; and the law even contemplates death by fire, and by the wheel. For political offences, again, death is a very frequent punishment. According to article ninety-five, even the innocent children of a person guilty of high treason may be imprisoned for life. A person guilty of misprision of treason (and not an accomplice) may be imprisoned for a period ranging from ten years to imprisonment for life. This code also contains a large number of regulations in matters of police, and provides punishments for those who omit any of the appointed observances. According to the articles one hundred and twenty-two and one hundred and twenty-four, it is a punishable offence to write a letter in cypher to any one in an enemy's country during war; so that a son in Berlin, writing to his father in Paris, in this manner and in time of war, on family matters and without any reference to politics, would be punishable.

II. Austria. A step in codification was made by the Austrian criminal code of 1803. This is characterized by great simplicity and lenity. The criminal code, not including the procedure, contains only two hundred and ten articles. Certain general principles are declared, which are calculated to guide the judge, and yet allow sufficient latitude to his own judgment. The language of the law is clear. A definition of each crime is first established; then follow provisions for the different classes and degrees of criminality. The punishment of death occurs very often; but not so frequently as in the Prussian code. A certain maximum and minimum of punishment by imprisonment are established, as, for instance, from five to ten years; so

This

that the judge in particular cases may determine the degree of punishment, according to the justice of the case. code has given much satisfaction in Austria. Complaints are very rarely made of any want of clearness in its provisions; so that very few expositions of it have been found necessary.

In connexion with this code of the criminal law, is another code, forming a second part, which treats of offences cognizable by the police. This contains two hundred and seventy-five articles, and is the first instance in Germany of an attempt at such a codification. The object was to provide for a class of petty offences, as, for instance, stealing less than five florins (about $2,25 of money of the United States), unaccompanied by aggravating circumstances; also for many offences against decency, as adultery, in such way, that they might be exempted from the high criminal punishments, and also delivered over to the proper adjudication of the police.

III. Bavaria. The Bavarian criminal code marks a new era in the criminal legislation of Germany. Its author was Feuerbach, one of the greatest jurists of Germany, and who has infused his own peculiar theory into his code. While still quite young, with little knowledge of the world, and no acquaintance with practice, he received, in his character of professor, a commission to prepare a code for Bavaria. Further, he was neither a Bavarian born, nor had he ever lived in Bavaria; from which circumstance, he knew very little of the people or their character. As a teacher of criminal jurisprudence, he was the founder of a new theory, which refers all punishment to a refined principle of intimidation. It was deduced, from this principle, that every citizen should be deterred from the commission of crime, by a dread of the pains of punishment; that the law must provide in such wise, that its own influence, and, therefore, the fear of the threatened punishment, should be more pow