CHAPTER XXXIX. ABUSE OF ELECTIVE FRANCHISE, 1832. CHAPTER XL. FORESTALLING, REGRATING, AND ENGROSSING, 1849. CHAPTER XLI. CHAMPERTY AND MAINTENANCE, 1853. CHAPTER XLII. BRIBERY, 1857. Suggestions for Defence, p. 675. PART V. OFFENCES ON THE HIGH SEAS. CHAPTER XLIII. PIRACY, 1860. CHAPTER XLIV. MALTREATMENT OF CREW, 1871. CHAPTER XLV. REVOLT, 1876. CHAPTER XLVI. FORCING SEAMEN ON SHORE, 1885. CHAPTER XLVII. SLAVE TRADE, 1889. CHAPTER XLVIII. DESTROYING VESSEL WITH INTENT TO DEFRAUD UNDERWRITERS, ? 1894. PART VI. OFFENCES AGAINST FOREIGN NATIONS. CHAPTER XLIX. VIOLENCE TO FOREIGN MINISTERS, 1899. CHAPTER L. LIBELS ON FOREIGN STATES, ? 1900. CHAPTER LI. BREACH OF NEUTRALITY, ? 1901. § 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: I. RELATIVE THEORIES. That object ment is to the of § 2. Is it the sole object of punishment to prevent the offender from the commission of future crimes? So has it been argued.' Damages in civil actions, it is urged, are gen- of punisherally only compensatory for past injuries. This is enough prevent by way of compensation, but it is not enough for preven- fender tion. The State is bound to take cognizance of the from furpos- ther ofsible and contingent breach of law which is contained in fending. 1 See 16 Law Mag. and Rev. (4th ser.) 97. VOL. I.-1 1 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. 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 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 so far as concerns most old convicts, imprisonment for a term usually makes them more hardened and more wary in the pursuit of crime when they are discharged. 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. As the individual has a right to resort to self-defence, to prevent a wrong being inflicted on himself, so has the State. The individual has a right That the object is public selfdefence. 1 See Berner, ed. of 1877, 11. 2 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 im moral, and furnishes no measure of the amount of punishment, except the law-giver's subjective opinion in regard to the sufficiency of the amount of preventive suffering." Woolsey's Political Science, 112. 3 Trendelenburg, Naturrecht, etc., Berlin, 1876, § 56. |