to repel an attack, and even to kill the assailant, it is argued, when his existence is imperilled, and so has the State; and as every crime threatens the existence of the State, by the State every crime may be punished. But to this there are two replies. The first is that there are many crimes which, so far from imperilling the State, strengthen it, being reasons why the State should be invested with increased power; and as the State is not imperilled by such crimes, on the theory now before us such crimes cannot be punished by the State. The second, and less technical objection, is that this theory confounds self-defence with retribution. Selfdefence, as we will hereafter more fully see,' can ward off a threatened crime, but cannot be invoked to punish a crime that is consummated. It may be preventive, but it cannot be retributive. On this theory, therefore, while the State can seize and even destroy a person threatening a crime, it cannot punish a person by whom a crime has been committed.

reforma

§ 4. That the object of punishment is simply reformation of the offender was the theory of the humanitarian philosophers of That the whom Rousseau was the chief, whose eloquent declamation object of punishon this topic was one of the preludes of the French Revo- ment is the lution. The good can take care of themselves—so reads tion of the this theory when stated in its baldest terms; it is the duty offender. of the State to take care of and reform only those whom social prejudice is pleased to call the bad. Hence in inflicting punishment the safety of the injured is not to be considered, but simply the reformation of the injurer. Nor is this to be effected by fear; for fear, as an engine of government, is to be discarded. Fear, indeed, it is subtly argued, may produce increased cunning in the execution of crime, but cannot prevent crime from being undertaken. Relapsed convicts, it is declared, are most plenty in the land of hard laws. Crime can only be thoroughly repressed by a system of penalties which, from the benignity they breathe, serve rather to soften than to inflame those on whom they are imposed.

§ 5. Undoubtedly the reformation of the offender is one of the objects which a humane judge will have in view in the adjustment of his sentences; but it cannot be viewed as the primary object, or as supplying the sole standard. The protection of the unoffending, if we reduce the question to a mere personal balance, is at least as important an object of humanitarian consideration as is the reform

1 See infra, ?? 97 et seq.

of the offender. And, again, if we examine the theory critically, we find we are reduced to this absurdity, that we can punish only when we can reform, and hence that the desperate and irreclaimable offender cannot be punished at all.'

§ 6. Nor does this theory make any distinction as to crimes. While an incorrigible assassin is not to be punished at all, because he is incorrigible, a trespasser, who in sudden heat strikes another, but whose temper it may take twenty years to correct, would be kept in the house of reform for twenty years. Nor is this all. What kind of correction, as has been well asked, is to be applied ?2 Is it to be preventive, so as to make the supposed offender innocuous? Then we encounter the objections which, as we have just seen, are fatal to the preventive theory. Is it to be purely corrective? Then it is to be graduated by tests which we have no means of applying, and which depend upon the capacity of characters to whose secrets we cannot penetrate. To carry out such a system thoroughly the State must become a church, undertaking, within the bounds of a prison, to extirpate selfishness and implant moral principle. Aside from the objection that this transcends the functions of the State, it makes the State attempt to effect a moral end by immoral means. For it is immoral to punish except for the purpose of vindicating right against wrong.3

That the

§ 7. The barbarism of the old English system of punishment was defended on the ground that cruel and conspicuous penalties are to be inflicted as means of terror. Nor was this object is to peculiar to England. It was the basis of the whole terrify secular jurisprudence of the Continent of Europe. Men others. were to be scared from crime, and therefore punishment was to be made as shocking and ghastly as possible. To this was

1 See criticism in Lorimer's Inst. (1872), 246. The point in the text is well put by Lord Justice Fry in an article in the Nineteenth Century, reprinted in the Criminal Law Magazine for January, 1884. "Prisoner at the bar," he supposes a judge acting on the principle here criticized to say, "you are an incorrigible villain; this is the fourth burglary of which you have been convicted, and the second attempt at murder. It is plain that

there is no hope of your reform, and therefore I discharge you."

2 Woolsey's Political Science, 107. 8 See remarks of the author in 4 South. L. Rev. 245.

"The State, endeavoring to operate on the fears of mankind, organizes a method of absolutely repressing or of absolutely commanding certain classes of acts."

Amos on Jurisprudence (London, 1872), 297. See, also, Maine's Ancient Law (ed. of 1870), 389. To the

to be subordinated not only the humane instincts of the court, but the primary rights of the offender. Criminals were to be broken on the wheel before assembled multitudes, and their bones hung on gallows on the highway. Even now, in nations of imperfect civilization, this continues; and throughout Europe, in 1869, were disseminated photographs of the mangled heads, as they had been empaled on posts in Athens, of the assassins by whom certain English travellers had been massacred at Marathon. Crime in others, it was alleged, is best checked by exhibiting to the public the most horrible penalties inflicted on the criminal himself. Gradually in England, in the reduction of capital punishment and in the introduction of privacy in reference to capital executions, has the coarse side of this theory been abandoned. In the United States it has had no foothold since the Revolution, though it was not without influence in instigating barbarous punishments in our early colonial days. And rightly has mere terrorism been rejected as one of the objects which the judge, in adjusting sentence, is to keep in view. For terroristic penalties, viewing them in their crude shape, undertake to punish the offender, not merely for what he has actually done in the past, but for what others may possibly do in the future. Terrorism, also, treats the offender not as a person, but as

same effect speaks Seneca: "Nemo prudens punit quia peccatum est, sed ne peccatur." Seneca, de Ira, lib. i. cap. 16.

might prevent the faults that should merit it. Our author himself would hardly approve entirely of this Turk's conduct in the government of slaves, Dr. Franklin, in a letter of March and yet he appears to recommend 14, 1788, to Mr. Vaughan, argues that something like it for the government "punishment, inflicted beyond the of English subjects. He applauds the merit of the offence, is so much pun- reply of Judge Burnet to the convicted ishment of innocence;" and, when horse-stealer, who, being asked what commenting on a pamphlet just pub- he had to say why judgment of death lished ("Thoughts on Executive Justice"), which advocated the "example" theory, pure and simple, gives the following characteristic criticism:

should not be passed against him, and answering that it was hard to hang a man for only stealing a horse, was told by the judge: 'Man, thou are not to be hanged only for stealing a horse, but that horses may not be stolen.' But the man's answer, if candidly examined, will, I imagine, appear reasonable, as being founded on the eternal

"I have read of a cruel Turk in Barbary, who, whenever he bought a new Christian slave, ordered him immediately to be hung up by the heels, and to receive an hundred blows of a principles of justice and equity, that cudgel on the soles of his feet, that punishments should be proportioned to the severe sense of the punishment, offences; and the judge's reply brutal and fear of incurring it thereafter, and unreasonable."

a thing; not as a responsible, self-determining being with rights common to all members of the same community, to whom justice is to be distinctively awarded as a matter between him and the State, but as a creature without any rights, on whom punishment is imposed so that others should be deterred from acts requiring punishment. The theory, therefore, is open to two fatal objections: (1) It violates the fundamental principle of all free communities-that the members of such communities have equal rights to life, liberty, and personal security. (2) It conflicts with that public sense of justice which is essential to the due execution of all penal laws. For this reason the terroristic system has failed even in producing the result which it sought. For terrorism, as such, has been shown to multiply rather than diminish brutal crime. No places are more prolific in crime than the sites of public executions. Inflicting public capital punishment on minor crimes has been found to generate bolder and more ferocious crimes which no capital punishment can suppress. Hence it is that terrorism has of late days ceased to be one of the elements in the measurement of judicial punish

ment.

§ 8. But it should be remembered that this criticism applies to terrorism in its coarse and merely sensuous aspect. For there remains to be considered a principle with which terrorism is sometimes unintelligently confounded, but which, when disentangled from the spectacular brutalism and the contempt of personal rights by which terrorism is marked, forms an important element in penal jurisprudence. This principle will now be noticed.'

1 It is remarkable, in view of the importance of the question before us in the moulding and in the application of criminal law, that it has received such slight attention from English and American jurists. Beccaria-whose treatise on Crimes was translated early in the present century, and who held that as the State rests on social contract it has the right to punish only so far as it has power given to it by such contract-took the ground that the object of punishment was simply preventive and deterrent; and what Beccaria taught it was natural that those who agreed with him in principle, and who

were fascinated by the purity and dignity of his style, should adopt as if it were unquestionable. General prevention, it was argued, ought to be the chief end of punishment. General prevention was distinguished from particular prevention in this: that particular prevention has respect to the cause of the mischief, and general prevention to the whole community. This system is, therefore, virtually the terroristic theory of Feuerbach, which is discussed in the text; with this qualification--that pleasure, as well as pain, are to be used by the law-giver as inducements to avoidance of crimi

§ 9. In another work,' the educational bearing of penal legislation is largely discussed, and it is there shown: (1) that the

nal acts. To this, as we will soon see more fully, applies with great force President Woolsey's criticism, that the preventive theory, "by overlooking the ill-desert of wrong-doing, makes it and all similar systems immoral, 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."

'Secondly, on the rest of the community, so as to deter them, by the example, from a like contravention of the laws."

The intermediate theory is maintained by Dr. Lieber, in his essay on Penal Law, published in Lieber's Miscellaneous Writings (1881), vol. ii. p. 471. The test proposed by this eminent writer is that punishment "must be just, according to the spirit of the

The founders of the Pennsylvania age." prison system, it should be added, while laying great stress on reform and prevention, fell back on justice as the main end of punishment.

Mr. Livingston repeatedly gives his adhesion to the preventive theory "We have established it as a maxim," he tells us in his Report on the Penal Code (Livingston's Works, 1873, i. 26), that the object of punishment "is to prevent the commission of crime;" and again (Ibid. 31), “no punishments greater than are necessary to effect this work of prevention ought to be inflicted, and that those which produce it by uniting reformations with example are the best adapted to the end." Subsequently, however (Ibid. 83), he quotes with approval the preamble to the statute of the Legislature of Louisiana establishing the Code. This preamble contains, inter alia, the following:

"The only object of punishment is to prevent the commission of offences; it should be calculated to operate— "First, as to the delinquent, so as by seclusion to deprive him of the present means, and, by habits of industry and temperance, of any future desire, to repeat the offence.

By Dr. Paley, in his Moral Philosophy, we are told that "the end of punishment is twofold-amendment and example." The same view is adopted by the great body of English commentators, with the following exceptions: Lord Auckland (Mr. Eden), in his Principles of Penal Law, chapter ii., maintains the absolute theory. Mr. Bentham, as will be seen, substantially takes the same view. Mr. Lorimer, in his Institutes, page 346, rejects the reformatory theory as inadequate and delusive. Mr. Austin and Sir W. Hamilton follow the modified scheme of Kant, to be presently noticed.

Both the "example" and the “ reform" theories were used with great effect by the defenders of Governor Eyre, when he was charged in England with permitting reckless and brutal vengeance to be inflicted on all persons suspected of complicity in the Jamaica negro outbreak of 1865. It will be recollected that after order was entirely restored great cruelties were inflicted, with the apparent permission of the governor, on persons who had not borne arms, and who were not proved to have been actually concerned in the revolt. The subject be

1 1 Whart. & St. Med. Jur. 147, 185, 188.