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announcement of punishment as a consequent on crime is essential That penal
to just penal jurisprudence ; (2) that such an announcejustice is ment of punishment is futile unless it is followed up, as a ing by ex- rule, by infliction. Two great instrumentalities, it is alample.
leged, are within the law-makers' control for the suppression of crime. The first is education, showing its moral and economical ill consequences. The second is to be found in penal laws; such laws to be humanely and justly devised, lucidly expressed, universally promulgated, and firmly executed. Each of these features is essential to enable these laws to be effective on the public at large. Men will not be deterred from crime by unjust or inhuman laws capriciously executed. And the appeal made by a right system of laws is not sensuous, simply agitating the passions, as is the case with the terroristic theory. For just laws, clearly expressed, faithfully disseminated, and firmly executed, address the reason of men. The offender is not, indeed, to be punished simply to make him an example to others, for this would be as objectionable as is the terrorism just condemned.' But being justly punished, his case is made public that it may become an example. In other words, example is not the object of punishment, but punishment creates example. Of course we here assume the justice of the punishment, and in so doing we advance toward the absolute theories of penal discipline to be presently discussed. And this distinction it is essential for the judge to keep in mind. To sentence a man to a severe and conspicuous punishment, simply to make him an example to others, not only is open to the objections already noticed
came a matter of active controversy the ground that punishment could in England, and Governor Eyre was only be meted out in retribution of defended by Mr. Carlyle, Mr. Ruskin, crime duly established in a court of and others, on the ground that the law. “Professor Huxley," says Mr. object of punishment is to prevent McCarthy, after narrating the procecrime and reform the community; and dure, “disposes once for all of that that only by atrocious punishment, in sort of argument by the quiet remark cases such as that of the late disorders that he knew of no law authorizing in Jamaica, could the still more atro- virtuous persons to put to death less cious crime of a universal massacre virtuous persons as such.” McCarthy's of the white race be prevented. This Own Times, London, 1880, iv. 47. See position was reviewed with great discussion in 4th vol. of Froude's ability by Cockburn, C. J., in his Carlyle. charge to the grand jury, which took
See Gisborne, Moral Philos. 187.
as applying to the terroristic scheme, but exhibits to the community an example of evil and not of good. But in imposing a sentence, it is one of the highest prerogatives of justice so to mould and explain it as to make it the means of the prevention of future crime, not merely in the offender himself, but in the community at large.
II. ABSOLUTE THEORY.
§ 10. The absolute theory of punishment, on which we must therefore fall back, rests on the assumption that crime as crime must be punished; punitur quia peccatum est. ishment is But then comes the question, by whom? The State, retributive as representing society at large, springs from a moral justice, to necessity. It is not a matter of choice whether we will formation live under government. Some government, some form ple are inof civil organization, we must have. And the State is not to be guided simply by expediency, or by the merely external purposes of society. It has an existence of its own to maintain, a conscience of its own to assert, moral principles to vindicate. Penal justice, therefore, is a distinctive prerogative of the State, to be exercised in the service and in the satisfaction of the duty of the State, and rests primarily on the moral rightfulness of the punishment inflicted. Penal discipline undoubtedly is expedient, both for the community and for the individual punished. But the jurisdiction is exercised, not because it is expedient, but because it is right.' Another step remains to be taken, which is this : Each de facto government is to be viewed as representing, for penal purposes, the State by which it is sanctioned. The State says, “Crime as crime is to be punished, and I constitute each de facto government as my agent for this purpose.” We have an interesting illustration of this tacit authorization in the recognition given by the Supreme Court of the United States, at the close of the late civil war, to the penal sentences of the Confederate courts. These courts were de jure nullities. Yet, nullities as they were, through their sentences thousands of convicted offenders were, when the war closed, confined in Southern prisons. To release them, writs of habeas corpus were taken out, and argued before the judges of the Supreme Court of the United States. But the reply to these appli
In this result, though by different hibited by Berner, Strafrecht, 1877, 8 processes of reasoning, concur Hooker, 17. Infra, & 13, note. Ecc. Pol. book i., and Hegel, as ex
tion of further crimes to
cations was substantially that given above: Society, in its large sense, is invested with the right to punish crimes ; and each de facto government is the agent of society for this purpose. The penal sentences of such de facto governments, therefore, will not be disturbed. $ 11. Relieving ourselves, therefore, of all jure divino questions
as to the right of particular governments to execute penal Crime as such is to justice, we reduce what is called the absolute theory of ished by de penal jurisprudence to the following propositions : (1) facto gov: Crime as such must be punished by society; (2) Each
de facto government must act as the agent of society for this purpose. Consequently each de facto government is bound to punish crime as crime. And every judge exercising penal jurisdiction is bound to do so as the vindicator of Right as such. Crime is primarily to be punished because it is a violation of moral law, and society is to punish crime because society is the divinely appointed vindicator of moral law.
$ 12. But is the absolute theory, as thus delineated, one which Preven- is to be nakedly administered ? Are the objects which
have heretofore been specified as relative to be entirely
left out of sight? In reply to this, the following answer be kept in view. is to be made :
While punishment is based on justice, it must be proportioned to guilt. If, however, we resolve guilt into its component elements, we find among them some of these very qualities to which the relative theories are distinctively applied. Thus, for instance, all of these theories rest more or less on the danger of crime to society; and punishment, in accordance with these theories, is to be graduated by the extent of this danger. But if, while accepting the absolute theory, we analyze guilt, we find that it becomes subjectively more or less heinous in proportion to the danger to society with which it is fraught. The guilt of drunkenness on the part of a man locked up in his own chamber is comparatively slight. If his drunkenness is concealed, while he is his own enemy, and the enemy, it may be, of his immediate family, he is the enemy, perhaps, of few others. But drunkenness on the part of the engineer of a steamer is a far more flagrant, because it is a more dangerous crime. It displays, when deliberate, a heart not only callous to social duty, but recklessly depraved. So, to adopt another illustration, setting fire to a building at night, when its inmates are unconscious in their beds, is an act exhibiting a guilt far more heinous
And so the
and depraved than setting fire to the same building in the day, when, if within doors, they will soon discover the fire, and if they do not extinguish it can at least escape. Graduating the punishment, therefore, by the guilt involved, a far higher penalty will be imposed in the first case than in the second. And so, with regard to the grade of homicide, as settled by our American law. Homicides by poisoning, and lying in wait, are engendered by a deeper guilt, while productive of greater danger, than most other classes of homicide; and hence they are visited with peculiarly condign punishment. In fact, with intelligent agents, the guilt of an act is proportioned, as a general rule, to its dangerousness, since the audacity and profligacy of the offender are measured by the extent of the mischief he attempts. There is no necessity, therefore, for resorting to the ground of expediency, as a means of grading punishability, when we can reach the same result by adopting the right principle of the adaptation of punishment to guilt."
§ 13. And so with regard to the reform theory. The old convict, who has been twice or thrice previously sentenced, needs severer treatment, and is sentenced to longer im- reformaprisonment, with the least ameliorations; and this because tion of the his guilt is of the deeper dye. On the other hand, the boy who is tried for his first offence is committed to a house of refuge, surrounded with benignant influences which may tend to his reform. In each case the objects aimed at by the reformatory theory are effected ; and yet in each case the punishment is graduated simply by the offender's guilt. The old convict is sentenced to a long imprisonment at hard labor, because his guilt is great ; but the very greatness of this guilt invokes the severity of sentence that would be produced by a just construction of the reformatory theory, when it was found that all milder measures failed. The youthful culprit is sentenced to a more lenient punishment, under more generous influences, because his grade of guilt is light, and the very lightness of this grade calls for that mildness of sentence which the reformatory system in such case recommends.
On the question of the gradation of iii. 874, 900. In our own literature punishment, see 5 Cr. L. Mag. 16; 24 the ablest exposition of this view will Am. L. Rev. 954; 16 Law Mag. & be found in President Woolsey's PolitRev. (4th ser.) 99; 18 Law Mag. & Rev. ical Science, ?? 100 et seq. It is also (4th ser.) 169.
vindicated by Lord Justice Fry, in the * See vindications of absolute theory article above quoted in the Nineteenth in Hartenstein, Grundbegriffe d. eth. Century, reprinted in the Crim. Law Wiss. 260-274; Rothe, Christ. Ethik, Mag. (Jan. 1884) 16.
According to Kant (see Berner, ed. of punishability is found in the 9th of 1877, 818), judicial punishment can- edition of Berner's Lehrbuch des not be employed as a means to obtain Deutschen Strafrechtes, Leipsic, 1877, a collateral good, but must always be a work which is one of the most popuimposed on and made commensurate lar and the most authoritative of reto a violation of law. A man, so he cent German treatises on criminal argues, is not to be treated as a thing, law, and which adopts as its basis the to be sacrificed to the policy of the Hegelian philosophy in this relation. State; from this he is protected by Punishment, according to Hegel (so his inherent personality. He must be writes Berner, & 21), is to be regarded justly convicted of a crime before the as an agency to annihilate wrong in State can punish him for the public its effort to annihilate right. It is, benefit. Penal law is a categorical therefore, the negation of a negation. imperative. Punishment is inflicted, This is tantamount to saying that punnot because it is useful, but because it ishment is retribution (Vergeltung). is demanded by reason.
But he in- But the punitive negation must be sists that social contract is the basis of so applied as to do no more than canpunishment; and he forcibly illus- cel the prior criminal negation. The trates this by saying that even if punishment must find its measure in society, by the consent of all its mem- the crime. As the right that has been bers, should be on the point of disso- impaired has a specific scope and lution, a murderer, sentenced to death, quality, so the punishment, to be a should first be executed, and that this correspondent negation, must on its would be right. As a rule, he recom- side have its quantitative and qualitamends retaliation; the like is to be tive limitations. punished by the like. This, however, The identity of crime and punishis not to be literally carried out, as in ment, however, which is thus required, the Mosaic system, an eye for an eye, does not consist in a specific similarity. a tooth for a tooth. The principle of It is not requisite that the crime should equality is to be substantially, not be retaliated on the criminal. All that formally, applied. It has, however, is asked is that the evil of the punishbeen objected to Kant's theory that it ment should be proportioned in value is inconsistent with itself. In his view (nach dem Werthe) to the evil of the law is the emanation of the united will crime. of the people, following in this the It is not the mission of philosophy, social contract theory of Rousseau. so continues Hegel, to establish a valThe security of individuals is, by this uation of punishment so as to apporview, the object of the State. It is tion it duly to each particular crime. difficult to reconcile with this concep- Philosophy deals with the principle, tion, that the State inflicts punish- and leaves the application to the pracment, not primarily for the sake of tical reason. All that philosophy can the individual, but primarily for the do is to assign a qualitative and quansake of justice. But however incon- titative certainty to an impaired right, sistent in this respect Kant may be, to which its punishment is to correhis example shows that it is possible spond. Hegel, Rechtsphilosophie, 390 for the absolute theory of punishment et seq. to be held by an adherent of the social Hegel's views may in this respect be contract hypothesis.
criticized as speculative, but it must be An analysis of Hegel's philosophy remembered that they have been ac