Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
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New York: Maynard, Merrill, and Co.
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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LAW, Penal


LAW, Penal. The historian finds penal law intermingled with all the primitive customs of nations. It is the first sign of the existence of human society. It is in fact impossible to conceive any association, even that of the family, without a principle of order and a sanction. In the first age of civilization its rules are uncertain: founded upon an imperative need of defense, it follows the progress of the manners, customs, prejudices and institutions which it protects. It seems unquestionable, however, that among all uncivilized nations the right of revenge has ever been the first principle of punishment: as they had no social justice, private justice took its place; each one defended himself; the family or clan undertook to make reprisals; the shedding of blood for revenge was allowed without judgment or restriction. The barbarous custom received its first check from religion: murderers or plunderers appeased the divine wrath by expiatory sacrifices, and the priests were consulted about reprisals. Among the Germans it was not lawful to inflict punishment upon a criminal, nisi sacerdotibus permissum velut deo imperante. Other moderating influences, no less efficacious, were brought to bear upon men's manners; first, the law of retaliation, the rude expression of a sort of moral justice. We find this formula in Exodus: "An eye for an eye, a tooth for a tooth." The Greek and the Roman laws have preserved traces of its application, consisting of the infliction of precisely the same injury that had been committed. Thus, while recognizing the law of retaliation, they regulated its application, confined it within fixed bounds, and forbade it to go beyond them. Such was also the object of the compounding of crime, which, like retaliation, recognized the right of personal vengeance, and which authorized the surrender of this right for an amount of money. A Roman law, which Paulus and Aulus-Gellius trace back to the Twelve Tables, declares: Si membrum rupit, ni cum eo pascit, talio esto. Compounding of crime, therefore, did away with reprisals, and consequently with retaliation. This custom, which we find in the Hebrew, the Greek and the early Roman laws, reached its greatest development in the German law, which even regulated the amount of compensation to be paid for each species of crime. Its introduction into the final laws of the fredum addressed to the judge or chief magistrate of the state, impressed upon compensation a general character; in this we may recognize a first tendency toward the régime which was to substitute public for private penalties, and the action of society for individual action.


—The development of a central power favored this tendency among every tribe and nation. It was the duty of this authority, whatever it was, to protect and avenge the injured parties; it took up their quarrel and supported it in its own name; revenge, instead of being personal and private, became general and public. In the early ages, penalties were mild, and consisted in most cases of simple fines. Cicero affirms that Romulus did not establish any other penalties: multa ditione ovium et boûm, non vi et suppliciis coercebat. It must, however, be remarked that default of payment of the pecuniary penalty imposed authorized the infliction of corporal punishment, and that the system of compensation and of fines was never extended to the numerous and disinherited class of slaves; these latter were always subjected to the most atrocious punishments. The character of the penalties inflicted, however, was soon changed; they gradually became a means of power and revenge in the hands of the rulers of nations. The right of public prosecution entered into general legislation and was regarded as perfectly legitimate. A threatened state, broken laws, justice itself when outraged, avenged themselves by inflicting punishment. Hence the extravagant nature of these punishments, hence the tortures and torments that have overrun the penal code. The penalty had no limit, because revenge has no limits; man even pretended to avenge the divinity when the guilty acts seemed to have a sacrilegious character, and the punishment of the guilty party became an act of piety.


—The manifestations of these excesses of the penal laws were not entirely identical among ancient and among modern nations. At Athens, stoning, crucifixion, burning, whipping with the lash or with rods, were inflicted, even under the laws of Solon, not only for homicide, but for treason, desertion to the enemy, for open theft, for the profanation of the mysteries, and for sacrilege. At Rome the condemned were at times precipitated from the Tarpeian rock, at other times tied up in a bag and cast into the sea, at others burned alive, at others hung upon a cross or delivered to wild beasts; some of these punishments were, however, done away with, to be replaced by the sword and the gibbet, damnatio ad gladium et ad furcam. In the middle ages this severity was increased still more: men's manners had become rude, acts of violence were habitual, disorders frequent, wars continual; penalties to be effective must needs be severe. Atrocious punishments were invented; death did not suffice to satisfy the vengeance of the social power. The condemned were quartered, their flesh was torn off with red hot pincers, they were burned alive, cut to pieces, tied to the heels of untamed horses, pierced with pointed sticks, buried alive, plunged into boiling oil, shut up in iron cages, or had melted lead or pitch poured over them. It seemed that men could only be restrained by punishments equal in violence to the violent acts which they committed. The laws described all these punishments with a sort of complaisance. In France the death penalty was inflicted in one hundred and fifteen cases, and the crimes which escaped capital punishment entailed the mutilation of a member, burning with a red hot iron, splitting the lip or tongue, branding, and all the refinements of torture which an ingenious cruelty could devise. The object of all these penalties, which the laws decreed, was, as we have already said, public vengeance; the effect they aimed to procure, intimidation. The legislators, therefore, were restrained by no obstacle nor remorse: they proposed to themselves, as their aim, to avenge the divinity, society and individuals, and, as the result of their enactments, to restrain the rudeness of manners by fear.


—It was not until the nineteenth century that the first ideas of reform acquired any strength. Montesquieu limited himself to establishing the principle of moderation in punishments and to pointing out the close connection between penal laws and political institutions. Vattel and Rousseau, Locke and Thomas Hobbes went further: they sought for the foundation of penal law, and thus began to destroy the old edifice of legislation. But it was really overturned only by Beccaria. The little book which he published in 1766, a sort of pamphlet, entitled, "Of Crimes and Penalties," met with immense success, and brought before the bar of public opinion, which it had transported with enthusiasm, the highest questions of penal law. It is not a scientific work: it is a few pages written with rare good sense and under the impulse of a profound sentiment of justice and humanity. The author proposed to himself to introduce moderation into the penal laws, and to defend the rights of mankind in the persons of the accused. It exercised an immense influence; its doctrines, developed in a host of writings, acquired incredible power. Penal legislation was partially reformed in France even before the meeting of the constituent assembly. The codes of Dec. 25, 1791, of the third Brumaire of the fourth year of the republic, and of Jan. 1, 1811, did nothing but confirm the doctrines of the eighteenth century, although restraining and curtailing them.


—What is the principle of penal law? We have just seen that until quite recently most penal legislation, after having abolished private vengeance, considered as the fundamental principle of penal justice a right to prosecution by the state, for the general good. The publicists of the eighteenth century tried to substitute for this principle, which justified every excess, the principle of lawful defense restricted within the limits of common utility. Beccaria, Feuerbach, Carmignani, and even Bentham, professed, with differences more or less marked, this doctrine which has for its point of departure the separation of divine and human justice. According to Kant, who is the leading doctor of this school, penal law has the right to punish only what is bad, what is contrary to moral law, what is unjust. It punishes because the guilty one has deserved the punishment, and because chastisement is only a means, and a manifestation of expiation. This doctrine, which has been accepted by a great many German publicists, was propagated in France by Guizot, de Brogli and Rossi, who, however, thought it incumbent upon them to place side by side with the moral law and as a further condition of the penal law, the interest of social order, and that which is of use to society. These are the principal systems known to science; we omit a great number of mixed theories which it would take too long to analyze.


—Among all these theories, where are we to find the truth? Is it true that moral justice and human justice have a common origin? Is it true they both have the same mission to fulfill, although using different means and acting in different spheres? No; for what moral justice exacts is the expiation of the fault, that is to say, retribution made for the fault committed by the evil inflicted. Is this the mission of social justice? Has it been delegated by eternal justice to enforce its laws? Has it the power to exact the expiation of crime? It has not even the means of proving that expiation has been made, for its vision is short, and its means of ascertaining truth are limited. It can not enter the conscience of the guilty party, it can not see his motives or his remorse, it can measure neither the degree of the fault nor the degree of expiation, it apprehends the external facts alone; how then, since it can not determine absolute criminality, can it act the part of divine justice? It proceeds against material acts, with the aid of material means; the exalted but mystic view of expiation does not belong to it; this view is that of the human soul, it can not be that of society.


—The principle of action which should govern society is to be found in the law of self-preservation inherent in it. This law, which is the first of all human laws, obliges the social power to maintain order, that is, to secure respect for the rights of the state, and the rights of its members. Penal justice exists because society exists, because it is one of the attributes, one of the conditions of its life. It needs no other title; its legitimacy rests entirely on social law. Is the right which it exercises the right of self-defense? If we take this word in its ordinary acceptation, no; if it be taken in the sense in which we understand it, that is, as the right of adopting the general measures necessary for the common defense of the rights of all, for the preservation of the state, it is. Penal justice admits the moral law, not as the source from which it emanates, but as a condition and a limit of its accusations and its penalties. Its mission is not to give a sanction to this divine law, and enforce the observance of its precepts. It concerns itself, and can only concern itself, with public order and social interests; it can have no other object than to maintain this order and protect its interests. Chastisement, as has been very truly said, has no right except against crime; but to constitute crime in the eyes of human justice, it does not suffice that moral order is disturbed; it is necessary that there should be a grievous attack upon social order, a serious breach of external peace.


—There flow from this fundamental principle two corollaries: the first is, that society has the right to forbid and to punish whatever is injurious or guilty, or of such a nature as the law ought to repress. Social danger, moral criminality and penal efficacy are the three conditions of penal justice. The second is, that the law, when punishing the acts which offend against both the social and the moral order, should confine its action to this class of acts, and can not go beyond this without infringing upon the rights of individuals. It may be laid down in general that the right of social power is to require the fulfillment of the conditions essential to its preservation; its duty is to insure the moral and material development of mankind. The right of the individual is freely to employ his activity, his intelligence and his liberty; his duty is to offer no obstacle to the exercise of the collective action of the rights of society. It is in endeavoring to reconcile these rights and these obligations that penal law must establish the grounds and limits of its accusations and penalties.


—Here there arise two questions: What actions should be considered criminal? In what cases can the authors of these punishable actions be considered responsible? We shall not dwell upon the first of these questions: to examine it in all its details would carry us too far from our subject. The legislator has the right to restrain all immoral acts which threaten the security of the state and of individuals, provided the offense be grave, and be manifested by an appreciable external act. The second question constitutes what, in penal law, is called accountability. The guilt of the authors of a crime or of an offense is modified by the circumstances which accompanied the act. Their criminality is lessened if the previous life of the culprit has been pure, if he acted only under the impulse of want or passion, or if he shows repentance or remorse; it is lessened still more if he was provoked by a violent outrage, if he can plead the weakness of childhood, or the feebleness of old age, finally, it is entirely removed if he merely made use of the right of self-defense.


—In French law, extenuating circumstances, which that law has not defined and will not define, are all facts that lessen criminality: weakness of intellect, lack of education, bad example at home, the instantaneousness of the action, poverty, ignorance, suffering; the declaration of these circumstances and the appreciation given them by penal law, form one of the most precious conquests of French modern legislation. The judge has acquired the power to be just, for he can proportion the punishment to the gravity of the offense. Excuses, like extenuating circumstances, do not exclude penal accountability, they merely lessen it and efface it in part; they may reduce the penalty to its smallest limit, but they do not remove culpability entirely. Justifying facts exclude all criminal intention; they establish the innocence of the accused, they do away with all infliction of punishment: such are insanity, actual necessity of self-defense, the proving of an alibi by the accused, and constraint. Under certain circumstances the motives of excuse and the motives of justification work the same effect. Thus the child that acts without knowledge is justified, because it has no criminal intention; if, on the contrary, it act knowingly, it is merely excused on account of its tender age.


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