530 



CRIMINAL LAW. 



VII. The principle of moral correction, lias been 

 little iised as Uie basis of the right to punish. It lias 

 for its end to correct, by punishment, in the criminal 

 himself, those unlawful propensities which impelled 

 him to crime. It is undeniably correct, so far as this, 

 t hat the punishment ought never to be such as to 

 make the moral correction of the criminal impossible, 

 by the annihilation of his sense of honour, by expos- 

 ing him to corruption in the society of other criminals, 

 and destroying his ability to support himse f in an 

 lione-t manner. But it is evident, on the other hand, 

 Uiat the sentiments of men, and their moral reforma- 

 tion cannot be the direct object of legislation, from the 

 very circumstance, that this effect is not of a kind to 

 be ascertained ; but to produce an outward liabit 

 (tor instance, to dispose the idle to labour, the drunk- 

 ard to sobriety, &c.), is practicable. 



Finally, VIII. The theory of retaliation has been 

 adopted, since the time of Kant, by almost all the 

 German philosophers, but, at the same time, by very 

 few lawyers. It is founded upon the principles, that 

 the state ought to suffer no wrong within itself; that 

 every unlawful action ought to be annihilated, and is 

 annihilated, when made to revert on the author ; and 

 that the latter sutlers no injustice by being treated in 

 the same way as he has treated others. This retalia- 

 tion is not, however, a literal one. It inflicts not the 

 same evil on the criminal which he has done to an- 

 other ; but it seeks for a generic notion of the of- 

 fence, and applies, according to this, the principle of 

 the criminal against himself. This affords, at the 

 same time, a measure for punishment, which no other 

 principle of penal law affords, though it still requires 

 that the degree of punishment, in particular cases, 

 should be fixed by positive law. 



We Iiave thus set forth the theories on the subject 

 of criminal legislation. In no branch of law has le- 

 gislation been at all times so active as in this. The 

 influence of theory has extended even to the forms 

 of process, and the civilization of nations always 

 manifests itself early by the improvement of the 

 criminal law. Criminal law was first treated sci- 

 entifically in Italy, but remained hi a very rude state 

 till the middle of the 16th century. The dreadful 

 abuses in the administration of criminal justice in 

 Germany and France, gave occasion to the two great 

 reforms introduced by the penal code of Charles V., 

 of 1532, and the criminal ordinance of Francis I., of 

 1539. This branch of jurisprudence now assumed a 

 more systematic cliaracter. The ordinance of Charles 

 V. greatly improved the forms of process, but re- 

 tained, according to the spirit of the tunes, cruel 

 punishments, and even torture. Of the points of 

 criminal law, which, hi recent times, have given rise 

 to much diversity of opinion, the following are of 

 particular practical importance : 1. The right of 

 punishing flagrant crimes without the authority of an 

 express law. Those who acknowledge the authority 

 of a natural law affirm the existence of such a right, 

 and divide criminal actions into those which are bad 

 in themselves (delicta juris naturalis), or as the Eng- 

 lish law terms them, mala in se, and actions which are 

 of themselves indifferent, but are subjected to a penal- 

 ty by particular laws (delicta juris positivi), or, as the 

 English law terms them, mala prohibita. Crimes of the 

 first class, as murder, theft, &c., must be everywhere 

 punished, even without a positive law ; but those of 

 the second, as contraband trade, are punishable only 

 when made penal by express enactment. Feuerbach 

 and others, however, acknowledge no right of pun- 

 ishment without an express law. 2. With the pre- 

 ceding is nearly connected the question how far it is 

 the right or duty of the state to punish crimes, which 

 have been committed in foreign countries. On this 

 point, in addition to the difficulties attending the main 



question, there exists a great difference of opinion as 

 to the laws by which such crimes are to be judged, 

 whether by the laws of the foreign country or of that 

 to which the individual belongs. 3. What power 

 should be given to the judge to vary the punishment 

 according to the different circumstance-, attending 

 the offence? The tendency, in modern times, is to 

 define crimes and their punishments so exactly as to 

 leave nothing to the discretion of the judge, and to 

 enable every man to see what he has to expect from 

 a violation of the law. It is doubtful whether so 

 much precision is generally advantageous, since it 

 almost necessarily produces an unequal distribu- 

 tion of punishment, the question whether it shall be 

 light or severe frequently depending on a little dif- 

 ference in the age of the offender, the amount of pro- 

 perty stolen, &c. ; so that a penny more or less may 

 make a difference of several years' confinement in a 

 penitentiary ; or the difference of a day, in the age 

 of the culprit, may decide whether he shall be pun- 

 ished with a few stripes, or deprived of his liberty 

 for years, or of his life. 4. One of the most difficult 

 points is the just estimation of injuries done to the 

 honour of another, which involves the great question 

 of the liberty of the press. The most important 

 differences of opinion, however, are those which pre- 

 vail with regard to criminal process. From the re- 

 presentation given above of the principles and the 

 development of penal law, it is evident that crimi- 

 nal proceedings have always been founded at first 

 upon private accusations, in regard to which almost 

 the same principles prevail as those observed in civil 

 actions. In the course of tune, this mode is super- 

 seded by a public accusation on the part of the state, 

 appearing by an attorney, to prosecute the offence. 

 Upon this principle are founded the criminal pro- 

 ceedings of the English courts, and of the French 

 courts since the revolution. With this may be unit- 

 ed the public trial by jury, whicli has found so many 

 adherents in mo:!ern times. Its fundamental charac- 

 ter consists in this, that the party accused remains 

 merely passive, and waits for the charge to be prov- 

 ed. The consequence is, that the sentence must bo 

 pronounced from a view of probabilities, and depends, 

 therefore, more on a knowledge of men, and the de- 

 ductions of a sound judgment than on technical rules. 

 It has been considered the safest mode of trying offen- 

 ces, in particular, as it prevents the dangers arising 

 from the influence of the higher officers of the state 

 over judges deriving their salaries from the sove- 

 reign, by referring the question of guilt or innocence 

 to the verdict of men taken immediately from among 

 the people, i. e. jurors. The German criminal pro- 

 ceedings are directed principally, it may be said sole- 

 ly, to the end of obtaining from the accused a con- 

 fession of the deed, and or its circumstances, by in- 

 quisitory process. This admits neither of an accuser 

 nor of a public trial, but the judge must inquire of 

 the accused himself, and obtain from him, if possible, 

 by a skilful combination of the circumstances, as 

 well as by awakening the voice of conscience, com- 

 plete truth. What is in Germany the chief busi- 

 ness of the judge belongs, in France, to the jugs 

 instructeur, and, in England, to justices of the 

 peace, as police officers, whose investigations af- 

 ford, hi common cases, the materials for the final 

 trial. The opponents of the trial by jury allege, 

 as a chief reason for their opposition, that, when 

 the preparatory process affords no certain results, 

 the subsequent trial is attended by the same un 

 certainty. 



To the above, we have to add a few suggestions 

 growing out of the practice of the common law, 

 which constitutes the basis of the institutions of Eng- 

 land. The general theory of the common law is. 



