« PreviousContinue »
THE CHARACTER, END AND OPERATION OF CRIMINAL
It is not my intention here to enter upon a definition of Law, or a criticism of the well-known definition given by Austin1. Elsewhere I have endeavoured to shew that the sense, in which this and similar names are ordinarily employed, covers every rule of conduct, actually obtaining among a class of human beings, by sanctions of human displeasure. Since, however, my present subject merely extends to such laws as are administered, and such sanctions as are applied, by the magistrates of a state or political society, I may omit the cases which Austin's definition, improperly as it seems to me, excludes.
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 nullity3; 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
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 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.
I may here say a few words upon certain more questionable ends than that of prevention indicated above.
The word poena from which punishment is derived points, in its own ultimate derivation, to the idea of purification. Moreover, many old legal forms, histories, and legends shew that capital punishment was frequently regarded as the purification of a community, or the removal from it of the wrath of heaven, by sacrifice of the sinner. This end of criminal procedure is now obsolete.
Again, as opposed to the idea of attracting by a remuneratory character, magisterial sanctions in general, which operate, as we have seen, by a conditioned evil, are sometimes said to be vindicatory1o. But a more special meaning is sometimes given to this word in the case of criminal sanctions in particular. In old works on law, written perhaps rather in the theological tone of mind, we shall hear of "vindicating the majesty" of the law; under which heading I may, for convenience, take vindictive satisfaction generally. If the phrase quoted merely means shewing that the sovereign will execute the law-that its menaces, as Austin says, are not idle or vain-it comes to little more than deterrence from similar offences, of which I shall speak shortly. If it expresses the satisfaction of a spirit of resentment felt by the community or by the sovereign as the representative of the community ("the law" of course having no feelings)-there is a certain independent meaning and truth in it. Even Blackstone" speaks of satisfaction to the community in the case of gross and atrocious injuries (crimes); though he apparently objects to the idea of vindictive satisfaction to the individual, arguing evidently from the text "Vengeance is mine," &c.12
Bentham seldom deals very directly with Blackstone, or no doubt he would have fallen foul of this passage-and 10 Blackstone, Int. § 2, p. 56. 12 ib. P. 11.
9 Corssen, Beiträge, p. 78.
11 Blackstone, Comm. 4. 1, p. 6.
Austin, though bitter enough against natural morality, is singularly cautious as to revealed religion. I find, accordingly, in Austin, nothing on this subject; in Bentham, no direct reference to Blackstone, but one of his general salutes to common moralists" about the "spirit of vengeance' Of this motive he shews, after his fashion, the "utility" both to the public and to the person injured.
Sir James Stephen1, quoting, besides Bentham, the high authority of Butler, in favour of the passion of revenge15, states that punishment regulates, sanctions and provides a legitimate satisfaction for that passion. Judging by his language and illustration, I think he confines this particular advantage to the satisfaction of the person injured.
I believe that the notion of an offender getting his due, being served right or served out, enters to a considerable extent into that feeling of a community which supports and enables the execution of penal sentences. I am not at all sure that, if we could analyse this sentiment to the bottom, we should not find its chief constituent to be a fear of suffering from similar acts, in which case we might class the feeling of resentment with the desire of prevention. This is clearly true of the wild justice which, in default of better, is occasionally administered by "vigilance" committees under the name of Lynch law. I need not, however, enter here into an analysis or justification of vengeance against the criminal, because, so far as relates to the consciousness of the latter, with which I am mainly concerned, precisely the same knowledge on his part is required, to account for any rational
13 Theory. Principles of Penal Code, Pt. 2, ch. 16. Vindictive satisfaction.' Bowring, 1. p. 382. In a note to the Introduction, ch. 13, p. 171, this satisfaction is treated as a collateral end of punishment.
14 Stephen, G. V. 98, 99.
15 Sermons 8 and 9. Does not Butler, rather, distinguish resentment from revenge, and condemn the latter?