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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 13" 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?
exercise of such vengeance, which we shall see to be required in order that punishment may effect its other, the deterrent or preventive, end. Revenge upon one who did not and could not know that what he did would most likely cause a certain result, and that such result was ground for punishment, is the act of a crazy despot alone.
Among reasonable people, at the present day, the paramount end, in comparison with which all other ends may be disregarded, of criminal sanctions, punishments, or, as Bentham calls them, "penal remedies," is, as the same author tells us, "to prevent like offences 1." As to the practical operation of such sanctions, the mode in which this "end or final cause of human punishment" is attained, I know no clearer or better statement than that given by Blackstone". Of the "three ways" which he mentions, viz. (a) by amendment of the offender, (b) by deterrence of others from offending in a like way, (c) by depriving the offender of the power to do future mischief, I have first to remark for a moment upon the third.
As regards the offender, this case occurs when his chance of amendment is thought of no importance, compared with the deterrence of others like him, and the safety of the remainder. To him, it is a mere matter of physical compulsion for the future, whether by death or other permanent incapacitation, the time for the operation of a sanction proper" upon his knowledge and will having passed by. To others, such a punishment has the same deterrent effect as a minor punishment has, and as the prospect of the kind of punish16 Theory. Principles of the Penal Code. Pt. 2, ch. 1, pp. 271, 2, tr.
Bowring, 1. 367.
17 Blackstone, Comm. 4. 1, pp. 11, 12. The same 'ways' are stated by Bentham (Introduction, ch. XIII. note, pp. 170, 1) are reformation, disablement, and example.
18 See Austin, Lect. 23, p. 468, for the distinction between physical compulsion and sanction.
ment now under consideration previously had, upon the offender himself. This last point is of importance as bearing upon the often misunderstood maxim "ex post facto punishment operates not as a warning." As against this maxim it has been argued, with regard to the practice, of course now obsolete, of criminal law made after the case, that, although the victim could not have known, and so his will could not have been affected, yet his punishment may deter others. Austin well points out a fallacy in the article (of the Edinburgh Review) in which this argument is pressed"; shewing that the legislation, if any, involved in such a case 2o, is not ex post facto for future cases; that the meaning of the saying ex post facto punishment operates not as a warning" is, that the party punished was not warned (or, as I should prefer to say, aware of his danger) before.
Apart from the gross injustice of such a proceeding towards the victim, a moment's consideration will shew why its exemplary or warning effect upon others will be of little value. Although the rest see that a man has been punished for a certain act, yet, ex hypothesi, they also see that he could not have known or surmised the act to be punishable. Thus, reasoning by analogy, they feel that though they may avoid that act they may be as liable for any other; which feeling would prevent their regulating their conduct by reference to public justice at all. For the due effect, then, of a punishment upon others, it must not be ex post facto, as regards the offender. I may here however quit the partial view of previous "warning" or knowledge into which I have been
19 Austin, Lect. 25, p. 502.
20 ib. 503. His contention that this particular instance (Lord Strafford's attainder) was not in any form a legislation for the future, because it was not a judicial decision, seems feeble. Judicial decisions do not declare in general terms "that those who might do thereafter as Strafford had done should be visited with Strafford's fate:" and why should not an act of attainder be the basis of others, as well as a judicial decision?
led by consideration of the peculiar case of permanent incapacitation for future mischief.
The general preventive end or purpose, common, in some degree, to all sanctions, but in the highest degree characteristic of criminal sanctions, is meant to be attained through the knowledge, and consequent desire, of men. The knowledge postulated may be broadly stated as: (1) knowledge that certain conduct on the part of the persons to be deterred is likely to lead to a certain result; and (2) knowledge that conduct leading to such a result is punishable. Without this, a sanction loses its effectuality or operative power". A man cannot desire to avoid the specific conditioned evil unless he knows of its existence, or knows the law, and knows that his conduct will violate the law 22. Where, as here, the sanction does not operate, Austin is logically right in saying that these are less correctly styled cases of exemption, than cases to which the idea of original obligation does not apply. Legal obligation is not (at least under a sane government) liability to sanction, or evil conditioned on noncompliance, absolutely: but, liability to such evil, as held out to rational beings, upon whose motives it is capable of working. In the practical order of treatment, however, which looks first to the mischief, then traces it back to the man; the connexion being once established, the latter is primá facie liable for the former: so that, when certain incapacities are proved, which negative that liability, the notion of exemption, or taking out of the danger, is that which naturally occurs to the mind.
21 Austin, Lect. 25, p. 496. He only differs from my view in looking to the original act forbearance or omission as forbidden by law, rather than to the consequences of the same as declared to be ground for punishment. 22 ib. Cf. too Lect. 26, p. 514. He "neither was nor could be conscious that he was violating his duty." See also Austin's "conditions of imputation." Lect. 20, note 84, p. 446. 23 Austin, Lect. 26, p. 515.