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LAW MAGAZINE AND REVIEW.
No. CCCXIV.-NOVEMBER, 1899.
1.—THE STATE PUNISHMENT OF CRIME.*
HEN I had accepted the invitation with which you
have honoured me, it was with no little anxiety that I proceeded to the choice of a subject for my address, although I felt assured beforehand of the courteous indulgence of my audience; and I was much eased in mind, when your distinguished president, the American Ambassador in London, upon my telling him that I proposed to devote my paper to the “State Punishment of Crime,” was pleased very warmly to approve.
I have taken this subject for several reasons. In the first place, it is one to which, in its practical bearings at any rate, every judge gives of necessity much careful study. In the second place, it is one of such deep and abiding interest to all members of a civilized community, that he who discourses on it earnestly will, I feel sure, be forgiven in respect of any literary imperfection. Thirdly, I know that in parts of this great country the treatment of convicts has in a very remarkable manner engaged public attention, and has been made the field of bold, elaborate, and, as I trust, very fruitful experiment. I greatly hope that, before my too short stay here has ended, I shall have had the opportunity of visiting
* A paper read by the Hon. Sir William Rann Kennedy, one of the Judges of the High Court of Justice, before the American Bar Association, at Buffalo, N.Y., August 29, 1899.
two at least of the institutions where the experiments are being carried on. I have already had the pleasure of visiting the great Reformatory at Concord. Lastly, while no one hails more joyfully than I the prospect of advance and improvement in the administration of the criminal law, I am constrained by much that I hear and read nowadays to deem it not inopportune, before a great assembly of men who must possess a powerful influence without as well as within the profession of the law, to urge the importance of steadfastness in upholding, throughout every change, a right idea of the punishment of crime.
The term 'crime,' in its widest signification, denotes every act or omission which is punished by the law. Some of the things which the law enjoins or prohibits under pain of punishment bear, in themselves, no essential relation to morality. Such, for example, are some matters of State regulation in regard to public order, health, highways, and revenue. Disobedience to the law in these matters is immoral only because it is morally wrong to break the positive law of the country in which we are.
As to this kind of crime I desire to make only a few remarks before passing away from it. I think it would be desirable, although probably it would now be difficult, to create in the language of the law a classification of crime which would pointedly distinguish punishable acts which are essentially immoral as well as illegal, from punishable acts which are immoral only in so far as they involve violation of our duty to obey the law of our country. The division of indictable crime in English law, into felonies and misdemeanors, does not represent, and did not arise from a purpose to represent, any such classification. Some misdemeanors (such, eg., as the crime of obtaining money by false pretences) are as essentially immoral acts as any felony. The French classification of contraventions,' delits,' and 'crimes,' is an effort to effect that which I desire. I say,
desire it, because it appears to me that to include under one comprehensive title of criminal the man who refuses to serve the office of petty constable, and the man who debauches a young child, must tend, by the obliteration of moral distinctions, to dull the proper sensitiveness of the public conscience. The terms 'crime' and 'criminal' ought, I suggest, technically as well as in popular language to "connote," as the late Mr. Justice Stephen puts it, "guilt of a more serious character than that which is involved in a mere infringement of the law as defined by Austin."
For a similar reason, the State should, I think, be chary of additions to the criminal law, involving the use of criminal procedure, in order to enforce arbitrary, though doubtless wholesome, rules of civic conduct. I agree with M. Louis Proal, President of the Court of Appeal at Riom, in his remark upon this point, in his work Le Crime et la Peine, published this year at Parisma work to which I desire to express my sense of obligation—when he writes (p. 498):
"J'estime que le legislateur doit être sobre d'incriminations nouvelles, que la sanction pénale ne doit être édictée que lorsque l'interêt social à sauve-garder est important, et qu'il ne peut pas être suffisamment protegé par le sanction civile."
On the other hand, where an act is immoral and injurious, the State may do a good deal towards stimulating and maintaining a healthy public sentiment of detestation, by affixing to it the infamy of crime, as, for example, in the case of corrupt practices at elections.
My chief purpose, however, to-day, is to submit to you some observations respecting the principles and the practice of the punishment of conduct which is essentially immoral as well as illegal—the criminal conduct which peoples our prisons and reformatories. In the condemnation of this, morals and law are absolutely harmonious, although the sphere of law and the sphere of morals are not identical in
extent. With the conception of wicked intents or wicked desires, not manifested in action, the criminal law has no concern. “It can be applied,” in the language of Mr. Justice Stephen, “only to definite overt acts or omissions capable of being distinctly proved, which acts or omissions inflict definite evils either on specific persons or on the community at large." The operation of the criminal law is, indeed, narrower even than this sentence would indicate. The punishment of the definite and socially injurious acts of the adulterer and the profligate (except where female childhood has to be protected) is in our system left to the lash of conscience and the censure of public opinion. Nevertheless, according to Bentham's image, although the circles of law and morals are not conterminous, they are concentric. Legal responsibility has its basis in moral responsibility. The righteousness of the punishment of crime depends upon the moral culpability of the criminal. “ You never separate the idea of right and wrong from the idea of punishment, without an infinite degradation of the latter conception.' The freedom of the will, the liberty of choice between right and wrong, the spiritual power of resisting and controlling impulses to greed and violence and lust, are immortal truths which gird Justice with the sword. For the idiot and the insane-because they lack such liberty and power—that sword remains within its sheath. There is, no doubt, a comparatively modern school of Criminal Anthropology which teaches a different doctrine. Its adherents hold, apparently, that moral liberty has no existence and that a moral evil is the result of physical fault. The criminal is, apparently, to be treated as the hopeless product of bodily anomalies—the doomed inheritor of a cerebral mechanism which must work evil-or the victim of “atavism," the supposed recrudescence of the wickedness of a pre-historic or
* The Rt. Hon. Sir E. Fry, “Inequality in Punishment.” The Nineteenth Century, 1883, p. 528.
even pre-human ancestor. We are given imposing classifications of criminals into “curable criminals ” and “incurable criminals," or into “born criminals” and “occasional criminals” and “criminals through passion."
These theories, however unquestionable the learning and the ability which have been enlisted in their support, appear to me to be as unsound as they would be unsafe if put in practice. “Le monde morale s'écroule, si la liberté est une illusion.”* They spring, one may venture to think, largely from a partial and imperfect view of humanity ; from an exclusive, or almost exclusive, consideration of its physical side.
I attribute, in great measure, the vogue which they have gained, to the curious co-operation of certain modern forces : on the one hand, the materialistic trend which the wondrous achievements of science in this century have given to thought, and the attractiveness which these achievements have lent to speculations which come to us in the garb of science; on the other hand, the development of humanitarianism, spurred sometimes to an immoderate zeal in finding excuse for crime by a righteous aversion to the indiscriminate severity of a bygone age.
But, indeed, the evidential value of the phenomena upon which these theories have been built, appears, according to the judgment of highly competent critics, to be open to most serious question. A catalogue of contradictory views will be found in the sixth chapter (entitled “Le Contradizioni dell' Antropologia Criminale ") of the first volume of Dr. Napoleone Colajanni's book, La Sociologia Criminale (Catania, 1889).
Whilst I was writing this paper, I received from a friend who is a great authority on all matters connected with the brain, this interesting statement: "In regard to the existence of any special characteristics of the brain of habitual criminals, you doubtless know the statements of Professor
* Proal, Le Crime et la Peine, p. 15.