Page images

intended to do what happened by my act. Hence the importance of intention in regard to punishment for crimes. When an offence has been intended, the punishment is more severe than when it was not so intended. Dolus, or culpable intention, and culpa, or simple fault, are vitally important in the Civil and Criminal jurisprudence of all civilised countries. The Law demands that persons shall not injure the rights of other people, or of Society, but shall act in regard to them with intention and reflection.

and reflection. In olden and primitive times, vengeance was the original foundation of the Penal law. It is so no longer, and the importance of a crime is determined, or at least always ought to be so, by its own nature, by the elements which compose it. Now, we say that an act is criminal, when it is a grand violation of justice and social order. This doctrine is of great practical interest, and is not merely a theoretical doctrine. What punishment is inflicted depends on the category under which the offence is placed. Montesquieu held that the triumph of liberty would be a classification of Criminal laws, which would affix a punishment to every particular kind of crime, and modern criminal laws are gradually approximating to such a classification. We no longer live in an age in which the most trifling crimes are punished with death, and criminals treated worse than wild beasts.

Criminal Code Required.-One of the greatest necessities of every civilised Government is a Code of written laws, clear, intelligible, and open to all the citizens. Without such a Code, no society can reach the highest condition of a fixed and stable Government. With it, and with the increase of education and morality, crimes diminish.

When the citizens do not know the laws by which they are governed, they are in a condition bordering on anarchy, or despotism. Strange as it may seem, that is the present condition of this country, as regards many of our Criminal laws. Most European countries have long ago drawn up

their Codes of Criminal Procedure and of Criminal Acts; but England, Scotland, and Ireland are still without these indispensable requisites of liberty. Every citizen should know, and should know with ease, whether he is guilty or innocent of any criminal charge which may be made against him. Some have asserted that a nation which has no science of Law is happy. I gravely doubt the truth of such an opinion. A nation without a science of Law is no more likely to be happy than a nation without physical science is likely to be rich and prosperous.

In nearly all European countries, the age of despotic kings, nobles, or priests is gone, and the blessings of Civil and Religious Liberty are more or less spread throughout Europe. So long as human nature is constituted as it is, crimes will spring up by the passions of men impelling them to the gratification of their private interests or wishes. Some of these crimes are more or less injurious to society, and in an ascending or descending scale are ranked accordingly, and punishment must be applied through the feelings of pleasure and pain, which are the only springs of human action.

The Criminal Law Codification Bill, drawn up by Mr. Justice Stephen, and introduced into the House of Commons by Mr. Attorney Holker, might well serve as a basis for the necessary codification of the Criminal Laws of England.

Crimes are against Person or Property.-All crimes are committed against person or property. As a general rule, all crimes against the person ought to be punished by imprisonment and with or without corporal punishments, and not by pecuniary fines. Crimes against property may often be amply punished by pecuniary punishment : crimes against the person seldom or never. Personal liberty, in every community, should be more highly esteemed and protected than riches. All persons, noble

and ignoble, should in Criminal matters, in the eye of the law, in a free country, be equal, and liable to the same or equal punishments, and equally subject to the same laws. But precise equality of punishment can never be more than external; for actual punishment must be proportional to the degree of sensibility of the person who is punished.

One of the great and indispensable ends of political society is personal security. Hence all necessary steps may be taken for the establishment and maintenance of this end. But, inasmuch as some persons will not obey the laws, and will rather break them, some means have to be adopted for the preservation of this right. These means involve the restriction of the liberty of the persons offending, or likely to offend, against the laws. Hence we have, in the defence of personal security, a justification for imprisonment, and also for such acts as may be necessary for the amendment of offenders. Similarly, we could prove that means were required for the establishment and maintenance of all the great ends of political society-e.g., personal property.

Classification.-When there are breaches of the laws for the public security, we, as I have stated, call them crimes, and misdemeanours. But this classification is based on the nature of the punishments inflicted in certain classes of cases, and not on the nature of different crimes, which have all one essential characteristic-namely, being contrary to the public interest. This being so, the Law should determine crimes by full and accurate definitions, and the evidence required to support them, and the punishment to be inflicted on the guilty. Further, when a person is accused, imprisoned, tried, and acquitted, he ought not to be branded by any mark of infamy; and compensation should be awarded to him, as far as possible, for the indignity and suffering which he has been obliged to undergo by an unjust accusation, or

unprovable offence being brought against him.

Till an accused person has been found guilty, he ought never, in any case, to be imprisoned, or associated with the guilty, and he should always be allowed a sufficient period to enable him to answer, and, if possible, disprove the charge. Some authors have divided all crimes into two classes-one comprehending homicide and all greater crimes, and the other, all crimes of an inferior degree; and have insisted upon an opinion that the preservation of life is a natural right, and the preservation of property a right of Society. To me it appears that such a division is inaccurate, inasmuch as it is founded on the nature of the punishment rather than on the nature of the crimes; and that the above opinion is erroneous, in so far as it makes the preservation of property a right of Society, and not a natural right. I hold that the right of property is as much a natural right as the preservation of life; because, in both cases, the rights are indispensable to the existence of individual life, or human society.

Security and liberty, restrained by the laws, are the basis of human happiness, and must be enforced to be of any use. When the laws are not enforced, or have little or no influence, new political bodies will be formed in opposition to the public good; and, if left alone, will establish new rules and regulations for the government of the State, and do all they can to put them into execution.

Custom inevitably becomes the law of the land. But all men acknowledge that there are certain crimes-e.g., theft, violence, homicide, perjury, conspiracies against one's country, which reason has pointed out to all men, in all ages, as justly punishable. Political laws, however, for the maintenance of particular systems of Government have no such foundation; but are based on the Laws admitted by the community as existing in some particular region or age. These public laws are no less binding than natural laws; but their origin is different.

Such is the crime of High Treason against the Sovereign or State.

A more perfect and comprehensive division of crimes would stand thus: Crimes against morality and religion, the State, public security, property, and private honour. This division corresponds with the end and effect of all Municipal laws, which, in my opinion, ought to be directed to restrain force and violence by pacific means; to preserve the free will of all in liberty; to subordinate private interest to the public interest; and effectually to direct human passions to the public good. A still better and more perfect division than the last is this: Moral crimes, Civil and Political crimes, and Religious crimes.

Necessary Qualities of Criminal Procedure.-In Criminal Procedure, there should be celerity in prosecution and lenity in judgment. It is, indeed, a great hardship for a man to be obliged to defend himself against groundless or unproved charges, and have to bear all the costs of his defence and all the odium of a charge being made against him. An action for false imprisonment, or slander, or libel, or the like, is no adequate compensation to the person accused. The magistrate, or judge, who tries the case ought to be authorised to deal with the matter at once and finally.

Public Criminal Prosecutors needed.-As in Scotland, and as I have suggested in this Review,* all Criminal prosecutions should be undertaken by public and salaried officials, who should be attached to all the Criminal Courts of the country to receive complaints, and carry them out before their own courts, or to get them remitted to the higher courts, and who should be liable to prosecution for neglect of duty by the regular Courts of Law. Crimes, primarily, concern the public, and not private

* No. CCXXVIII., for May, 1878.

« PreviousContinue »