540 PROCEEDINGS OF SECTION G. 



them should be so contrived as to give expression to hatred, and to 

 justify it so far as the public provision of means for expressing and 

 gratifying a healthy natural sentiment can justify and encourage 

 it, and that whatever may have been the case in periods of gi-eater 

 energy, less knowledge, and less sensibility than ours, it is now 

 far more likely people would witness acts of grievous cruelty, 

 deliberate fraud, and lawless turbulence with too little hatred and 

 too little desire for deliberate measured revenge than that they 

 would feel too much ; and he states his observation and experience 

 of criminals to have been that there are in the world a considerable 

 number of extremely wicked people disposed, Avhere opportunity 

 oifers, to get what they want by force or fraud, with complete 

 indifference to the interests of others, and in ways which are 

 inconsistent with the existence of civilised society. Such persons, 

 bethinks, ought, in extreme cases, to be destroyed. The learned 

 Judge says these views are regarded by many persons as being 

 wicked, because it is supposed that we never ought to hate or wish 

 to be revenged vipon anj'one. but that it is useless to argue upon 

 questions of sentiment, and ail that one can do is to avow the 

 sentiments which he holds, and denounce those which he dislikes. 

 But it would be unjust to so able and distinguished a Judge as 

 Sir James F. Stephen, one to whom England owes so much for his 

 great labors both there and in India, to take one or two extracts 

 from his voluminous writings without, at the same time, showing 

 from one of the very first principles of penal justice how strong he 

 may have felt his grounds to be. It must be remembered that the 

 foundation-stone of the Criminal Law is the yielding up of 

 individual hatred, or temptation to revenue for the retributive 

 justice of the State. The earliest laws of all civilised communities 

 show that as they advanced in civilisation it was agreed that the 

 individual injured by a crime should not personally retaliate, but 

 should have recourse to the tribunals appointed to administer the 

 Criminal Law, Avho alone where empowered to apportion the 

 degree of punishment authorised by the framers of the law, always, 

 of course, subject to its being reduced by those endowed with the 

 prerogative of mercy. It is self-evident that the abandonment of 

 private revenge for the measured and unimpassioned justice of the 

 community was, and is, absolutely necessary ; as otherwise peace, 

 order, and good government would be impossible. The common 

 and statute law jirovide for penalties according to the heinousness 

 of the offence and the wrong done to the individvial. If these are 

 inadequate, or inefficiently carried out, then dissatisfaction is sure 

 to ensue, and still more dissatisfaction arises if the punishment is 

 excessive and altogether out of proportion to the crime. Let me 

 illustrate the preceding remarks. Supposing a cruel murder is 

 committed, and capital punishment is the law of the land, then the 

 death penalty should be enforced ; otherwise the friends of the 

 murdered man or woman would be sorely tempted to take life for 



