ÎNTRODUCTION CONTENTS. OFFENDER. TERMS EMPLOYED. PRESUMPTIONS PAGE v-ix 1-11 ESSENTIALS OF CRIMINAL LIABILITY, CONTINUED. OFFENDERS' 45-54 55-70 THE CHARACTER, END AND OPERATION OF CRIMINAL Ir is not my intention here to enter upon a definition of I Magisterial sanctions may be distinguished among themselves by their character, the procedure or mode in which, and the end or purpose with which, they are applied. 1 Lect. 6, p. 339. "Every positive law (or every law simply and strictly so-called) is set, directly or circuitously, by a sovereign individual or body, to a member or members of the independent political society wherein its author is supreme" and passim. In the present use of the word sanction, an evil contingent on non-compliance, rather than a good contingent on compliance, is almost universally intended. It is not, at first sight, easy to point out what is the contingent evil in all sanctions, even of such as are magisterially applied. The difficulty, however, arises rather in the case of civil than criminal proceedings; and even in the most difficult case conceivable -that where no payment of costs should be inflicted-there is what Austin well terms the sanction of nullity; in other words, the loss of time and trouble and the disappointment of expectation, to which the person violating the rule is liable. Another class of sanctions treated by Austin as somewhat abnormal-those which affect men through sympathy with others-Bentham's vicarious punishments-or by the principle of association (as in the posthumous dishonour once inflicted upon suicides), does not seem to present any real difficulty. In all cases of Crime, the sanction consists of some punishment, i.e. some positive and distinct suffering or loss. But Crimes, or public wrongs, are best defined, in genere, by the procedure with which they are practically treated, and the end or purpose with which that procedure is employed. A definition by their intrinsically injurious tendency, alone, is not enough; though it is, beyond a doubt, the belief of a community, or its authorities, as to the degree and extent of that injurious tendency, which leads to the special treatment of certain conduct as criminal. 2 See Blackstone, Int. § 2, p. 56; Austin, Lect. 1, p. 93. Bentham (Int. p. 24) on the other hand designates as sanctions " sources "both" of pain and pleasure." 3 Austin, Lect. 27, p. 522. 4 ib. p. 523. "These Mr Bentham has styled vicarious punishments." Bentham, Principles of Penal Law, 2. 4. 4. (Bowring, 1. p. 479). See also Theory, p. 329 tr. 5 ib. p. 523. With regard to procedure, criminal sanctions are correctly said to be imposed (or, as I should say, applied) 'at the discretion and by the direction of those who represent the public,' whether private prosecutors, public prosecutors or common informers. Hence crimes are not, like mere private wrongs, remissible by remissible by an individual wronged. Thus the sanction of nullity, where the intended act in law is void rather than voidable—a distinction pointed out by Austin-has a semi-criminal, but only a semi-criminal character. It is not remissible by any individual: but neither can it, on the other hand, be said to be imposed at the discretion of those who represent the public: it simply attaches to the violator of the rule, on his attempt to avail himself of the right which, through such violation, he has not acquired. As to the end or purpose of the two classes of sanctions, I have ventured to hold, somewhat in opposition to Austin's views, that civil procedure regards mainly the wrong done to an individual and the restitution or redress to be made to him; criminal procedure regards mainly the injurious consequences to the community, resulting from the conduct of an offender, endeavours to prevent a recurrence of such consequences by suffering imposed upon him, and enquires particularly into the circumstances of his conduct and consciousness. It is then, we may remark, evidently in the case of criminal or public wrongs, where the consciousness of the party is a chief point to be considered, that the operation of sanctions, in general, is most important and most clear. To return, however, to the end or purpose of criminal sanctions, 6 Stephen, G. V. pp. 4, 5. I do not therefore draw the distinction of Sir James Stephen between punishment and penalty. 7 Austin, Lect. 27, p. 522. I do not, however, understand the sentence beginning "Whether the transaction-." Application for rescission and plea of nullity do not appear to be both applicable to both voidable and void transactions, but the former to the former and the latter to the latter. 8 Lecture 27. |