« PreviousContinue »
municipal laws of a social community; and are positive laws enforced by human sanctions. They often differ from the Laws of Nature in their extension and in their ends. They are often merely the adoption of natural laws by human legislators.
They are, then, natural laws in the imperative mood, when the social interest demands them, €.g., as to laws in regard to the supreme powers in a State, the laws of property, and the laws as to family relations. They have not the universality of natural laws. Their differences under these heads, in different countries and at different times, indicate the advance of societies in social progress. They are not suitable for universal enforcement. They must fit into the national habits, religion, social state, form of Government, and geographical position. Many a blunder has been committed both in Ireland and in India by neglecting these facts. Again, the ends of Natural law and Penal law are different. Natural law has regard to the good of man as a social being; and Positive law to man in organised society. The former has regard to the good of man in the abstract; the latter to the good of man in such or such a society.
Cicero, De Legibus, says, “ Lex est ratio humana insita in natura, quæ jubet ea quæ facienda sunt prohibetque contraria." Criminal laws do not, as some have supposed, have their origin in the Civil laws, but at the very same time, and from the same origin as the Civil laws.
Some distinguished authors have given the foundations of Penal law as vengeance, social contract, reparation of injury, social preservation, and public utility. Kant makes absolute justice the foundation of the Penal law. He recognises the same basis for the exercise of the right of punishment. He derives Penal laws from absolute justice, and the punishments for their infraction from the exigency of that justice. Remorse, anger, and the anguish of the conscience are the punishments inflicted on us for
breaches of Natural law. Restriction of liberty, corporal punishments, loss of property, and deprivation of political rights are the punishments inflicted on us for breaches of Penal law. The fundamental origin of Penal law ought not to be confounded with the legitimacy of human punishment. The two things are entirely different. Penal Law primarily springs from the Law of Nature. This is the opinion of the majority of legal writers in modern times.
Every law consists (1) of an imperative or prohibitive order to do or forbear; and (2) of action or power
to exact the accomplishment of the order. By the former it commands; and by the latter, it provides for the execution by means of a sanction. When the sanction follows the infraction of a public right it is called a punishment; and when of a civil right, reparation or compensation. Public punishment is reserved to the public authority of a community, and ought not to belong to a private individual. It is a public right, and the public should inflict it independently of the private party injured. The right or legitimacy of the punishment springs from the same source as the Penal law itself, namely, the society in which it is enforced. In Primitive Society, vengeance naturally appeared as the foundation of punishment, and the party injured followed up the wrong-doer, and inflicted what punishment he thought fit. But, in the progress of society, the State interfered in the interest of all parties, and acted between them as an impartial Judge and Arbiter.
Seeing that Society had undertaken the defence of all, it necessarily had the right to inflict just punishment on a wrong-doer for his infraction of the laws of the society, and for the protection of the necessary rights of all. The idea that the right of punishment arose from a supposed Social Contract, as enunciated and accepted by Rousseau and his disciples, has long ago been abandoned. The Social Contract is a
pure invention of the imagination. Men have always lived in some form of society. The family is the type of human society. In Ancient Philosophy, expiation is the primary, and example a very subordinate end of Penal law. But expiation is internal, and example is outside of the offender, and for the benefit of others; while punishment is external, and political, inflicted by a Judge, and for the advantage of society. Plato, in his Gorgias, says that expiation is the end of punishment ; St. Augustine puts forth substantially the same view; and so does Grotius, De Jure Belli et Pacis. Bentham holds that utility is the end of Punishment; but his opinion really terminates in absolute justice; for he would have punished all acts contrary to utility, and because they were contrary. Some authors say that legitimate defence is the end of Punishment. But how can such a principle apply when the public authority is not in peril, and when the danger of the wrongful act is past ? I hold, with Boresco, that the right to punish springs from the social state which passes the laws, and that the laws are just because they are laws, and are enforceable on the same ground.
As the Legislature has the power to make Penal laws, so it has the power to enforce them by itself, or to delegate to the Executive power in the State the power to enforce them. When the laws are broken, there arise the duty and power to obtain justice and reparation. In an organised society, a man ought not to set up a system of Justice by or for himself. The public authority alone ought to have the right to make laws, and to enforce them, and everything which tends to impeach or interrupt the making or the enforcing of laws ought to be punished. The selfevident principle which I have just now enunciated is the sole basis for the legitimate exercise of Penal law. The foundation of the Penal law is a Natural law that justice commands and the social interest renders necessary. The
right, or exercise of punishment is the right which entrusts the Legislative power, or its Delegates, with the power of enforcing the Penal law, or of punishing every act which tends to traverse or to hinder the Penal law from being executed. Penal or Criminal laws differ from Civil laws, inasmuch as the latter give rise to an action to the party injured, and the former to a public action for the wrong done to the public, and usually to a private action to the person injured. In the Civil law, a wrong concerns the public interest less than in Penal law; and in the Penal law, the interest directly concerns the social order, and may even extinguish the private interest altogether. Bentham confounded the limits of the Civil and the Criminal or Penal law. Ortolan rightly lays down the distinction between them. He says that, where an individual is able to avoid injury or defend himself from it, the remedy is Civil, and the law is of the Civil order; and when he is not, the remedy is Criminal, and the law is of the Criminal order. When the individual cannot defend himself, the collective strength of the community should be called forth to his aid. When the individual acts, he seeks reparation, or damages. When Society intervenes, it does so not only to repair the wrong done, but also to inflict punishment, or pain, in the interest of society. Whether there shall be damages or a public punishment, is a matter for the decision of the Legislator and not of the Judge. Penal law, therefore, is primarily based on Natural law, and is required by the social interest.
The violation of the Penal law is called a delict, crime, misdemeanour. Sometimes delict means simple fault, and at
at other times culpa, or premeditated transgression. Crime always means premeditated wrong; but misdemeanour not always so. Delict, crime and misdemeanour imply imputability and consequent responsibility. The English law recognises only two classes of
criminalacts, namely, Crimes and Misdemeanours. Boresco says (Bk. I., c. 3), and I agree with him, that " In every case, it is always the immorality of the act, united to the social danger, that indicates the true nature of a fault." In all crimes and misdemeanours, there are two elements, namely, the determination to violate a right, and the actual breaking of the law. The latter is the external act which subjects the offender to the penalties of the Criminal law; and the former is the internal act, which must precede the external act, and which realises itself in the breaking of the external law, and thus becomes a social act capable of being dealt with by human laws. The simple project to violate the right of another person is a moral wrong. When it becomes a crime or misdemeanour cannot be determined; but before it becomes a crime, it must manifest itself in some outward act. To punish a man for meditating on the commission of a crime is not unknown in Criminal Jurisprudence; but does not appear to me to be just or reasonable.
Every offence implies the idea of an active subject, and a passive subject-of a person doing the wrong, and of another suffering it. It also implies that the offender is free and intelligent ; for, if the offence is not freely committed, but under compulsion, it was beyond the control of the active subject; and, if it was not the act of an intelligent person, the active subject did not know what he was doing, and is not criminally liable for his act. A criminal act also implies that the act done, or forborne to be done, is exigible. Moral responsibility depends on liberty and conscience ; culpability, on act being enforceable. Culpability can be measured; but imputability cannot.
Will and intention are often confounded with each other. When I have acted in a certain manner, I must have willed or determined to do so; but I may not have