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demanded by the necessity of preventing crime. Beyond this, the 

 State has no right over the person, the property, or the labor of the 

 convict ; and hence the practice, universal in our penal system, of com- 

 pelling the convict to labor for the benefit of the State, is as unjust 

 as it is unwise. For, in the one aspect, it takes from the convict 

 the incentive of exertion, and thus destroys almost the only prac- 

 tical means of reformation ; and, on the other, it constitutes an un- 

 necessary and unjust conversion of the person, the labor, and the 

 property of the citizen to the use of the State, and thus by impress- 

 ing upon him the fact that justice is something with which, in the view 

 of society, he has no concern, still further corrupts the sentiment of 

 justice in the heart of the convict. Nor is this injustice excused by the 

 fact that no profit results to the State from the policy, or, in other 

 words, that the business does not pay ; but rather, on this account, we 

 may say, to use the somewhat immortal language of the diplomatist : 

 "It is worse than a crime ; it is a blunder." 



The question of punishment is not a judicial one, but pertains to the 

 governmental power; but before the right to punish can accrue, a ques- 

 tion oi jurisdiction must necessarily arise, namely, to determine whether 

 the accused is guilty of the crime charged ; which, as we have observed, 

 is a controversy between the individual and the government, aifecting 

 the private rights of the former, and hence essentially similar in char- 

 acter to controversies between individuals. For every penal jirosecu- 

 tion is in elfect a suit by the State to establish a right over the person 

 of the accused. 



With regard to the civil jurisdiction, it maj' be said that there is no 

 other power or function of government of which the nature, end, and 

 mode of exercise is, in this country and England, and in these latter 

 days, so thoroughly and generally misunderstood. Briefly, the function 

 is precisely what the etymology of the term, jurisdiction, indicates, 

 namely, to declare the right between men, in conti'oversies presented 

 to the courts for determination,* but, as commonly conceived, it is 

 merely the power or authority to declare the legislative will with 

 regard to the controversy. This — while as a universal proposition 

 utterly false — is, to a certain extent, true ; for there are many mat- 

 ters that are within the right of the legislator to determine, and 

 as to these, when its will is declared, justice requires it should be 

 observed, and hence the function of administering justice necessarily 

 includes the obligation or duty to observe all valid laws. But, as we 

 have seen, judicial legislation, even in modern times, is extremely lim- 

 ited in its scope, and laws and statutes therefore constitute but an infin- 

 itesimal part of the principles by which, in practice, rights are deter- 

 mined. It is, indeed, as we have seen, asserted by Austin and others, 

 that the courts are in fact vested with legislative power ; and that their 



* " Jurisdiction, jurisdictio: an autiiority or power which a man hath to do justice in 

 causes of complaint brought before him," Jacob's Law Dictionary. 



FROC, AMER. PHILOS. SOC. XXXIV. 148. 2 I. PRINTED OCT. 30, 1895. 



