18. Determinism and free agency, though logically contradictory opposites, are practically coördinate factors, § 225, note. 19. Co-responsibility of instigation and perpetration, § 230. 20. Ubiquity of the prerogative of the State in vindicating its own rights, or the rights of its subjects, § 284, note. iv F. W. § 1. WHAT purpose has the State in punishing? Upon the answer to this question depends not merely the extent of the punishment which we inflict upon conviction, but the conception of justice on which convictions rest. It becomes important, therefore, to examine at the outset the several theories which have been propounded as the basis, in this respect, of criminal jurisprudence. These theories may be arranged as follows: — 1 It may be said that the philosophy of the law is a subject that belongs exclusively to the legislature; and that the practitioner is concerned solely with the law that the legislature enacts. But this is based on a petitio principi. How can we determine what is the law which the legislature has enacted until we settle its construction; how can we settle its construction without regarding the intention of the legisla VOL. I. 1 ture; and how, especially in cases of codes, can the intention of the legislature be gathered without taking into consideration the system on which the legislation of the particular state rests? Under our own distinctive polity two additional arguments are to be given for this conclusion. The first is that our legislatures, unlike those of most European states, are not absolute. Their acts are limited 1 of punishment is to prevent the offender from further offending. I. RELATIVE THEORIES. § 2. Is it the sole object of punishment to prevent the of That object fender from the commission of future crimes? So has it been argued. Damages in civil actions, it is urged, are generally only compensatory for past injuries. This is enough by way of compensation, but it is not enough for prevention. The State is bound to take cognizance of the possible and contingent breach of law which is contained in the criminal will; the State must suppress the danger that is thus encountered. By penal jurisprudence this suppression is properly to be worked. By this reasoning the imposition of punishment can be defended. By these tests the extent of punishment may be determined. Yet in reply to this we cannot escape the following criticism: If the theory be correct, and be logically pursued, then punishment should precede and not follow crime. The State must explore for guilty tendencies, and make a trial to consist in the psychological investigation of such tendencies. This contradicts one of the fundamental maxims of the English common law, by which, not a tendency to crime, but simply crime itself, can be made the subject of a criminal issue. And then, again, the object which the prevention theory sets before it, namely, the creation of right motives, belongs to the sphere of ethics, and not to law.1 Undoubtedly, as will be seen, one of the objects of penal discipline, especially in the case of an inveterate offender, is to put him in a condition in which he cannot be guilty of future mischief. Often enough, in sentencing old convicts, do judges tell the prisoner that he is to be placed where for a time at least he can do no harm. It may be questioned whether at least in some of these cases the prevention idea has not a little too much consequence assigned to it; because it may be questioned whether, with some of these old convicts, imprisonment for a term does by constitutional restrictions, which restrictions are really philosophical principles, in subordination to which all legislation is to be construed. And the second is that in most of our States offences at common law are as subject to prosecution as are statutory of fences; while in all our States the terms not make them more hardened and more wary in the pursuit of crime when they are discharged.1 Prevention however may, in peculiar cases, be a proper point to be considered in moulding sentences. But prevention cannot be viewed either as forming the proper theoretical justification of judicial punishment, or as one of its invariable results. § 3. The right of self-defence has also been invoked as a justification of punishment.2 As the individual has a right That the to resort to self-defence, to prevent a wrong being in- object is public selfflicted on himself, so has the State. The individual defence. has a right to repel an attack, and even to kill the assailant, it is argued, when his existence is imperilled; and so has the State; and as every crime threatens the existence of the State, by the State every crime may be punished. But to this there are two replies. The first is that there are many crimes which, so far from imperilling the State, strengthen it, being reasons why the State should be invested with increased power; and as the State is not imperilled by such crimes, on the theory now before us such crimes cannot be punished by the State. The second, and less technical objection, is that this theory confounds self-defence with retribution. Self-defence, as we will hereafter more fully see,3 can ward off a threatened crime, but cannot be invoked to punish a crime that is consummated. It may be preventive, but` it cannot be retributive. On this theory, therefore, while the State can seize and even destroy a person threatening a crime, it cannot punish a person by whom a crime has been committed. object of punish § 4. That the object of punishment is simply reformation of the offender was the theory of the humanitarian phi- That the losophers of whom Rousseau was the chief, whose eloquent declamation on this topic was one of the preludes of the French Revolution. The good can take care of themselves, so reads this theory when stated 1 To this theory President Woolsey justly objects that "the cardinal doctrine, that the motives to be set before the criminal are simple pleasure and pain, and the end, prevention, by overlooking the ill-desert of wrong-doing, makes it and all similar systems immoral, and furnishes no measure of the reforma. ment is the tion of the offender. amount of punishment, except the law-giver's subjective opinion in regard to the sufliciency of the amount of preventive suffering." Woolsey's Political Science, § 112. 2 Trendelenburg, Naturrecht, &c., Berlin, 1876, § 56. 8 See infra, §§ 97 et seq. in its baldest terms; it is the duty of the State to take care of and reform only those whom social prejudice is pleased to call the bad. Hence in inflicting punishment the safety of the injured is not to be considered, but simply the reformation of the injurer. Nor is this to be effected by fear; for fear, as an engine of government, is to be discarded. Fear, indeed, it is subtly argued, may produce increased cunning in the execution of crime, but cannot prevent crime from being undertaken. Relapsed convicts, it is declared, are most plenty in the land of hard laws. Crime can only be thoroughly repressed by a system of penalties which, from the benignity they breathe, serve rather to appease than to inflame those on whom they are imposed. § 5. Undoubtedly the reformation of the offender is one of the objects which a humane judge will have in view in the adjustment of his sentences; but it cannot be viewed as the primary object, or as supplying the sole standard. The protection of the unoffending, if we reduce the question to a mere personal balance, is at least as important an object of humanitarian consideration as is the reform of the offender. And again, if we examine the theory critically we find we are reduced to this absurdity, that we can punish only when we can reform, and hence that the desperate and irreclaimable offender cannot be punished at all.1 § 6. Nor does this theory make any distinction as to crimes. While an incorrigible assassin is not to be punished at all, because he is incorrigible, a trespasser, who in sudden heat strikes another, but whose temper it may take twenty years to correct, would be kept in the house of reform for twenty years. Nor is this all. What kind of correction, as has been well asked, is to be applied ?2 Is it to be preventive, so as to make the supposed offender innocuous? Then we encounter the objections which, as we have just seen, are fatal to the preventive theory. Is it to be purely corrective? Then it is to be graduated by tests which we have no means of applying, and which depend upon the capacity of characters to whose secrets we cannot penetrate. To carry out such a system thoroughly the State must become a church, undertaking, within the bounds of a prison, to extirpate 1 See criticism in Lorimer's Inst. 1872, 246. 2 Woolsey's Political Science, § 107. |