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interference of government should be merely ancillary, and not in such 

 a manner as to interfere with its natural progress. 



In applying this principle, the first phenomenon that should attract 

 our attention is that the observance of justice is, in the main, provided 

 for by nature itself. Men living in society inevitably conceive certain 

 notions of justice, and of right and wrong, and these, by a process of 

 nature that appears to be necessary in its action, become common or 

 universal ; and thus, as we have seen, is created the received or posi- 

 tive right of the people ; which, in general, covers nearly the whole 

 field of jural relations; and which is, in the main, a correct expression 

 of the principles of natural justice, as theoretically defined ; and 

 which, also, is the practical standard which men ought to observe, and 

 to which, by an impulse of nature, they involuntarily submit ; and it is 

 this which constitutes the means by which society, and government, 

 and even civilization, become possible. 



Hence — as the development of the theory and principles of right is, 

 in the main, like the rest of the development of society, natural and 

 spontaneous — it follows, as an application of the organic theory, that 

 the function of judicial legislation is merely supplemental to natural 

 functions ; that it does not extend to the abrogation of the principles 

 of natural justice, but merely to protecting them, and to encouraging 

 and directing their natural development to such extent as necessity 

 may demand, and no further. 



With regard to the function of ordinary jurisdiction, a few additional 

 observations will be necessary. Jurisdiction is of two kinds, namely, 

 civil, and criminal, — the former consisting in the power to hear and 

 determine controversies between individuals as to their mutual rights ; 

 the latter in the power to hear and determine accusations of crime, 

 which, so far forth as they enter into the domain of jurisdiction, are 

 merely controversies between individuals and the State. 



The criminal jurisdiction will first be considered. The right of pun- 

 ishment is based exclusively on the right of self-defense, which is nec- 

 essarily vested in the government as it is in the individual, ( Vim vi 

 repellere omnia jura clamant). It is, therefore, in its essential nature, 

 merely the war power exerted against internal enemies ; for the crimi- 

 nal is in fact at war with the State. The right, therefore, is strictly 

 limited by necessity, which is its only justification, {Salus populi su- 

 prema lex), and, in its essential nature, it is the same as the right in war 

 over captured enemies. The State, therefore, has no right to inflict 

 punishment by way of retribution, or for the purpose of reforming the 

 criminal, but merely for the purpose of the prevention of crime by ex- 

 ample of punishment or by actual restraint. I do not say, it will be 

 observed, that the functions of the State do not extend to the reforma- 

 tion of the criminal, but only that the justification of such a function 

 does not rest upon the right of punishment. 



The right, therefore, extends no further than to inflict the punishment 



