CRIMINAL LAW. 



529 



!>c decided by positive rules of law, because the ob- 

 ject of the inquiry is to reconcile these rules with na- 

 tural justice. States have, indeed, at all times, exer- 

 cised the power of punishment, without waiting for 

 or regarding such theoretical investigations, because 

 it is obvious that, without the right of punishing, no 

 state could exist. The different systems, which have 

 attempted to establish theoretically the right of 

 punishment, may be brought under the following 

 heads : 



I. The system of vengeance. From the opinion 

 that he who has injured another cannot complain of 

 injustice, if a similar evil is inflicted upon himself, and 

 the injured person, or, in case of murder, his family, 

 would be disgraced, if they did not obtain satisfaction, 

 arises the rude system of retaliation, which we meet 

 with in so many nations ; but, whilst those who take 

 revenge must beware not to exceed the measure of 

 the injury received, lest they become aggressors in 

 their turn, they will be obliged to adhere literally to 

 the rule of " an eye for an eye, a tooth for a tooth ;" 

 and in this state we find the criminal law subsisting 

 among nations for a considerable time, and bloody 

 revenge and retaliation become a common right and 

 duty. (See Michaelis On the Mosaic Law.) In 

 this state of things, the punishment of offences against 

 the law belongs not to the community, but to the in- 

 dividual, and the public authority is active only in 

 putting limits to the continual exercise of revenge, 

 and in providing means for terminating the hostilities 

 among^amilies, which threaten the nation itself with 

 destruction. From tliis arises the system of compo- 

 sition. Offences are estimated at certain rates in 

 money ; and not only is the offender f5rced to pay 

 the sum fixed, but the offended party must also re- 

 ceive it in satisfaction. With this degree of progress 

 is connected the idea of a national peace, which is 

 developed in various forms and relations, as the peace 

 of the king, the peace of the court, &c. ; involving, 

 at the same time, the acknowledgment of a public 

 power, whose duty it is to protect and judge. We 

 find the law of composition among the old Germans, 

 as well as the nations of the Indian archipelago, and 

 the tribes of American savages. The next step is the 

 acknowledgment of the principle that the community 

 is bound to prevent crimes. The right of revenge 

 passes into the hands of the state, which does not 

 wait for the complaint of the offended party, but 

 takes upon itself the duty of the accuser. The theory 

 which next succeeds is, 



II. The system of deterring. By the punishment 

 cf the offender, others are to be deterred from similar 

 acts. The punishment is, therefore, inflicted publicly ; 

 and, the more horrible the crime, the greater effort 

 is made to confirm the popular abhorrence of it by 

 severe penalties. This system is liable to the most 

 weighty objections. It cannot be allowable to tor- 

 ment or put to death a human being, simply with the 

 view that others may receive from his sufferings such 

 an impression as to be proof against the temptation 

 to commit crime. In point of fact, this end has never 

 been attained, and would require a scale of punish- 

 ments offensive to sound reason. The mere fear oi 

 punishment is of very little weight. Men are kepi 

 from crime principally by the natural abhorrence oi 

 wrong, heightened by a good education and good ex- 

 ample. If the plan of deterring should be carried 

 through consistently, it would compel us to propor- 

 tion punishment rather to the temptation to commit 

 crimes than to their magnitude. (See Feuerbach's 

 Revision der Grundscetzedespeinl. Rec/its, Erfurt, 1799, 

 Revision of the Principles of Penal Law.) With 

 regard to capital punishments, more particularly, 

 the system of deterring fell by degrees into disre- 

 pute, after the marquis Beccaria (On Crimes and 



Punishments, London, 1770), and a great many other 

 learned men, had declared themselves for, 



III. The system of prevention, which is ingenious- 

 y defended by the Hessian minister Von Grolman 

 (Grundsatze der Crimmalrechts wissenschaften, Gies- 

 sen, 1798 Principles of the Science of Criminal 

 Law). Every crime contains, if man is considered 

 as a consistent being, the expression of a principle of 

 conduct, and, accordingly, besides the present trans- 

 gression of the law, a threat of a repetition of the of- 

 fence. The community is, therefore, entitled to take 

 measures of prevention against it, which, if the injury 

 done is irreparable, may extend to the deprivation ot 

 life. This system may be said to afford the true rea- 

 son for punishment in general. It may, however, be 

 objected to it, that this provision against future 

 crimes is not really punishment, and that the punish- 

 ment must needs be omitted, if this presumption of 

 the future offences is refuted by the particular cir- 

 cumstances of the case. This principle, moreover, 

 admits of no scale of punishment, because the means 

 of effectual prevention must always be the same 

 death or imprisonment for life. The direction which 

 the science of natural law had taken, at this period, 

 seeking for the foundation of every right in a con- 

 tract, led to, 



IV. The system of compact, which asserts that, by 

 becoming a member of the state, every individual 

 has, by tacit compact, bound himself to submit to 

 punishment, if the society choose to inflict it. As, 

 however, no one can be bound by a contract to any- 

 tiling which is not right in itself, the lawfulness of 

 punishment cannot be shown in this manner. Fichte, 

 therefore, in his original way, modified this theory. 

 He proceeded upon the principle that, by trespassing 

 upon the right of others, the criminal deprived him- 

 self of the claim to be treated as a rational being, 

 since the rights of a free agent depend on his respect 

 for those of others. Every crime, therefore, he says, 

 justifies the expulsion of the offender from human so- 

 ciety. The compact, by which the punishment is de- 

 termined, is consequently in favour of those who re- 

 ceive a lighter punishment than such expulsion. 

 They acquire a right, by suffering some determined 

 evil, to be admitted again into civil society. Much 

 of this theory is true, but the real existence of such 

 a compact seems to be wanting. 



V. At the same time, the theory of atonement 

 was introduced by Klein and others. The criminal 

 does injury in two ways ; 1. to the person who is the 

 immediate subject of the wrong, for which he has to 

 make him amends according to the rules of private 

 law ; and, 2. by the bad example afforded by the di- 

 minished respect for the laws of the state, for which 

 he is answerable to the community. This latter in- 

 jury is compensated by the punishment, which vindi- 

 cates the authority of the law in the minds of the 

 people. This theory has, in later times, been fur- 

 ther developed, with great ingenuity, by Schultz 

 (Entwickelung der philosoph. Principien desluergerl, 

 und peinl. Rechts, 1813- Development of the phi- 

 losophical Principles of Civil and Criminal Law), and 

 by Martin (Lehrbuck des Crimmalrechts, 1819 1825 

 Compendium of Criminal Law). 



VI. The theory of psychological constraint, by 

 Feuerbach, is founded upon the system of deterring, 

 with the addition of this position that the threaten- 

 ing of punishment, in general, is lawful, because it 

 forbids no one to do anything which he can have a 

 right to do ; and this menace renders punishment 

 lawful in case of an offence occurring, because the 

 individual knew beforehand wliat he had to expect. 

 This theory is exposed to most of the objections 

 against the theory of deterring, and the grounds on 

 which it rests often fail in particular cases. 



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