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LAW

THE

MAGAZINE AND REVIEW,

No. CCLXXIX.-FEBRUARY, 1891.

I. CRIMES AND PUNISHMENTS.
II. PUNISHMENTS.

HAVING, in the last number of the Law Magazine and

Review, treated of Crimes as fully as possible, I have now to consider the great problem of Punishments. In following out this plan, I propose to consider-1. What punishment is; 2. The end of punishment; 3. The measure of punishment; 4. The right of punishment; 5. The various kinds of punishment; 6. The necessity for a Supreme Criminal Court of Appeal; 7. Pardon by the Royal Prerogative; and, 8. Some reforms required in our Criminal Laws.

1. What is Punishment? It is not easily defined. But Dr. Johnson explains it "as any infliction of pain, in vengeance of a crime." Blackstone, regarding the end of punishment as expiation for crime, defined it as "evil, or inconvenience consequent upon crimes and misdemeanours." Both Blackstone and Bentham held that the injury to society was the quality in an offence by which to determine the quality of the punishment. Immorality by itself is not suffi cient to render an act punishable. To make immorality punishable, it must be so declared by the law of the land. But, although a law declared such and such an act as an offence in the eye of the law, something more is required to make it effectual. The necessity for the adoption of means to enforce the law, and to make it obeyed, is the justification,

or essential basis, of punishment. Punishment is itself an evil; but is a necessary evil. What, then, is the true nature of punishment? I have already shewn that it is neither vengeance nor reparation, and that it is not, according to Plato, Grotius, and Selden, merely a remedy for the evil done by the wrong-doer. What, then, is it? It is the means adopted for the reclamation of the offender, and for the protection of society against the perpetration of certain acts held to be injurious to the State. This is, I believe, the usual and true doctrine of punishment now held by Criminal Jurists. Punishment, then, should aim at the reparation of the evil done, and repression of the offender against the perpetration of present or future wrongdoing. Its influence, by way of example, on others ought not to determine its character, or its degree as regards the offender himself, who ought to be punished for his own actions, and not for those of other persons.

In the order of historical development, punishment is vengeance,then a means of legitimate defence, then expiation, then a demand of social utility, and finally a reparation and a social necessity combined. Bentham's great principle, "Toute peine est bonne pour cela seul qu'elle est utile," confounds the end and nature of punishment, and leads to unjust and cruel results, and the principles of Plato and Kant appear to do the same thing: Thus, reparation leads to the lex talionis; absolute justice to punishments inconsistent with social utility; and expiation to the personal amendment of the offender. Finally, the moral wrong is satisfied by reparation of the interests injured, and the social wrong by the repression of the offender. By combining all the ends of punishment, we shall arrive at the general end of all punishments-namely, the social good by the performance of duty—and thus obtain a criterion by which to judge whether a punishment is good or bad, just or unjust. To know whether a punishment is

good or bad, we have to consider how far it possesses the two essential elements of reparation and repression.

2. The End of Punishment.-With Bentham I hold that the principal end of punishment is to prevent the same offences; and that, inasmuch as there are various classes of offences, there should be various classes of punishments. In all punishments, the aim of the Legislator and the Judge should be to make or induce all, whether offenders or not, to see and approve better things, and not to follow worse than all are naturally, or by habit, inclined to do. The chief aim of both of them should be to turn the heart from dangerous courses, and direct the inclination to the pleasures which are most agreeable to the public interest, and to draw the mind away from the barbarous habits of indolence, theft, and private vengeance to the civilised habits of industry, security, and public justice. Observe that punishment is merely the legal means of enforcing certain civil rights: For example, the punishment of death is the extreme punishment inflicted on an offender who deprives another person of life. Punishment is inflicted on a person on account of some act that appears to have been done or omitted to be done. It is quite different from vengeance, antipathy, self-defence, or self-preservation. In the English language, punishment designates not only the result of an act, but the cause of an act, i.e., the French peine as well as punition.

Paley also holds that the proper end of human punishment is not the satisfaction of justice, but the prevention of crime. I do not agree with Paley that fear least the escape of criminals should encourage criminals, or others, by their example, to commit damage or different crimes, is the sole consideration which authorises the infliction of punishment by human laws. His reason for the former severity of punishment in sheep and horse stealing-i.e., from the facility of such theft-is

absurd. As a general rule, and however imperfectly men can approach the Divine perfection of wisdom, we should imitate the justice of God in the gradation of punishment, and inflict punishment as nearly as we can in proportion to the guilt of the offender. We never can reach the absolute and perfect justice of God in dealing with offenders; but there is no reason why we should not do our best to approach Divine justice as far as possible. As human government must be established on the basis of the suppression of crimes, we are entitled to punish offenders, whether the punishments inflicted prevent, or do not prevent crimes.

Two of the chief ends of punishment are undoubtedly the amendment of the offender, and the example to others against offending in the like manner. But, says Paley, in the reformation of criminals little has ever been effected, and little, he fears, is practicable. With this statement I entirely agree, and am of opinion that the great aim of criminal reformers should be to prevent crimes rather than to reform habitual criminals, and to look to an improved rising generation, rather than to a reformed present generation, for an improvement of our social condition as regards crime.

Locke, Book II., c. 2, holds that man is determined by the greatest apparent good. He is right in so holding; but unfortunately this apparent good is often real evil. Properly to operate on the human will towards good, and against evil, is the great aim of the Legislator in regard to punishment. The general prevention of wrong-doing is, in fact, the real justification for public punishment. If an offence is an isolated fact, and will not again occur, punishment is useless. to all intents and purposes, except as regards the offender. Inasmuch as punishment is an evil in itself, it ought not to be brought into operation, unless in so far as it will prevent greater evil. Hence, Bentham asserts, and rightly asserts,

that "a punishment is needless where the purpose of putting an end to the practice may be attained as effectually at a cheaper rate, by instruction, for instance, as well as by terror; by influencing the understanding as well as by exercising an immediate influence on the will."

The end of punishment, therefore, is neither to torment sensible beings, nor to undo a crime already committed, nor yet to recall the past or reverse the crime. It is to punish the criminal for doing some injury to society, to repair the wrong done to society or to a private individual, and to amend his life for the future, and, by his example, to prevent others from committing the like offence. But the chief end of punishment is to punish the criminal by preventing him from doing the like again; and that by means of fines, imprisonment, hard labour, moral and physical treatment, and new habits formed. The infliction of pain, for its own sake, is now condemned by all enlightened governments, statesmen, politicians, publicists, and philanthropists. Where the laws have clearly declared what are crimes, and a crime is charged against the prisoner, the Judge should be neither impatient nor timid-impatient to listen to all that can properly be said for or against the prisoner -timid to act on the laws which are laid down for his guidance. We are told that the political ends of punishment are to terrify an offender, and be an example to others. I deny that the State has any right whatever to inflict any punishment on an offender in order to be an example to others. By the terms of the Great Charter, it is declared: "Nullus liber homo amercietur pro parvo delicto, nisi secundum modum delicti; nec pro magno delicto, nisi secundum magnitudinem delicti.” As all men in England are now free, this grand and righteous principle applies to every citizen of England.

3. The Measure of Punishment.-What punishment ought to be inflicted, in each case, depends on the nature of

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