A blupete Essay

Notes, to blupete's Essay
"On The Theory of Punishment"

1 I have a note that these lines are from Daniel Defoe's, "Hymn to the Pillory," written just before, as a religious dissenter, in 1704, he was pilloried for the writing of the pamphlet, The Shortest Way with the Dissenters. There were four lines in respect to laws:
"But justice is interverted, when
Those engines of the law,
Instead of pinching vicious men,
Keep honest ones in awe."

2 There are, assuming one cannot commit a crime against one's self, "victimless crimes," such as: suicide, drugs, prostitution, gambling, etc. It was Sir James Fitzjames Stephen, the principal drafter of the Criminal Code of Canada (1892) (which in many of its parts still exist today), who expressed the view that "the roughest engine which society can use for any purpose" is to improve morals, yet, he thought it should be so employed. This position is to be contrasted to that of the American jurist, Oliver Wendell Holmes who did not think that law ought to be used for this end, at all. By the way -- Stephen was a Christian: Holmes, an atheist. [See Stephen's work, Liberty, Equality, Fraternity (1873); (University of Chicago Press, 1991) at p. 10.]

3 "An act punishable by law, as being forbidden by statute or injurious to the public welfare." (OED.) H.L. Mencken defined it: "society, in order to protect the weak and botched against the bold and original, has had to proclaim certain human acts, under certain circumstances, as too dangerous to be permitted." ("Crime and Punishment" as contained in the May, 1922 ed. of the Smart Set.)

4 "The conception of crime which the ordinary citizen entertains involves the commission of some act which transgresses not merely the law but morality. Murder, robbery, arson, perjury and the like all offend the natural instincts of the good citizen and their repression commands his assent. But in recent times the criminal law has invaded almost every department of daily life with countless restrictions to the contravention of which penal consequences are attached. People may now be arraigned for acts which are in no sense intrinsically wicked but are merely made crimes by Act of Parliament in pursuance either of economic exigencies or political theories." [Lord MacMillan, in his introduction to Professor Leon Radzinowicz' work, History of Criminal Law and Its Administration (London: Stevens & Sons Limited, 1948).] The criteria in the passing of criminal laws -- which by implication means ultimately the application of force by government against the citizen -- has been significantly (and I think wrongly) altered from that simple criteria which was set forth many years ago by John Stuart Mill: "... the only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or to forbear because it will be better for him to do so, because it will make him happier, because in the opinions of others to do so would be wise or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to someone else." (On Liberty, ch. 1.)

5 The Star Chamber is a synonym for arbitrary and oppressive administration of punitive justice. It is the appellation of an apartment in the royal palace at Westminster, in which during the 14th and the 15th century, the chancellor, treasurer, justices, and other members of the king's Council sat. They did not feel compelled to exercise their jurisdiction in any prescribed fashion, other than to achieve the ends of the crown. It is this history which led, very early, unlike the common law, to a legislative adoption "that there must be chapter and verse of the written law behind every punishment." (Roscoe Pound, in his introduction to Saleilles' work, The Individualization of Punishment.)

6 Pound's introduction to Saleilles' work, op. cit..

7 The Canadian Charter of Rights, for example, provide: s.2, "Everyone has the following fundamental freedoms: (a) freedom of conscience and religion, (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication, (c) freedom of peaceful assembly; and (d) freedom of association"; s.7, "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice"; s.8, "Everyone has the right to be secure against unreasonable search or seizure"; s.10, "Everyone has the right on arrest or detention, (a) to be informed promptly of the reasons therefor, (b) to retain and instruct counsel without delay and to be informed of that right, and (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful"; s.11, "Any person charged with an offence has the right (a) to be informed without unreasonable delay of the specific offence, (b) to be tried within a reasonable time, etc."

8 Sydney Smith.

9 "We must, wherever we suppose a Law, suppose also some Reward or Punishment annexed to that Rule." (Locke's Human Understanding.) It is thought, and it seems reasonable enough, that, in "general, the method of punishment is more satisfactory than the method of reward, because it can be controlled to a greater extent." (R. M. Yerkes, as quoted by OED.)

10 Lex talionis are fancy Latin words meaning the law of equivalent retaliation, and which, for lawyers, has a legal meaning which extends into a whole system of laws, of which the Code of Hammurabi, the earliest code of laws known to history, is a perfect example. "In general the principle of punishment was the lex talionis: 'life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, stripe for stripe' ... The Mosaic Code, though written down at least fifteen hundred years later, shows no advance, in criminal legislation, upon the Code of Hammurabi; in legal organization it shows an archaic retrogression to primitive ecclesiastical control." (Will Durant, Our Oriental Heritage, Vol.1, Bk.1, Ch.9.)

11 Fear is twofold; servile, whereby punishment, not fault, is dreaded; filial, by which fault is feared. It is this filial fear, or shame which has long been the sheet-anchor of the law. However, "Shame is no punishment except upon persons of ingenuous dispositions." (1788, Priestley's Lectures in History, v. xlvii, p. 353.)

12 H.L. Mencken, op. cit..

13 Ibid.

14 Ibid..

15 Since 1892, legislators "were influenced to implement such reform in annual legislation, which introduced inconsistencies in the code and made it bulky and unwieldy. The restructuring of 1954 reduced the bulk and removed many of the inconsistencies as well as most of the anomalies incorporated by default or accident in the 1892 legislation. With the creation of the Law Reform Commission, a permanent organization was established which has been a fruitful source of ideas for progressive change in the criminal law, and has pointed the way to a new model code. ... The commissioners can ponder the law; they can conceive and draft programs of progressive reform; and they can put forward those programs for implementation by Parliament. But politicians march to a different drummer ..." [The Genesis of the Canadian Criminal Code of 1892 (The Osgoode Society, University of Toronto Press, 1989) at pp. 163-4.]

16 "The laws of the most kingdoms and states have been like buildings of many pieces, and patched up from time to time according to occasion, without frame or model. ... This continual heaping up of laws without digesting them maketh but a chaos and confusion, and turneth the laws many times to become but snares for the people. ... Then look into the state of your laws and justice of your land: purge out multiplicity of laws: clear the incertainty of them: repeal those that are snaring; and press the execution of those that are wholesome and necessary ..." These are the words of Francis Bacon written some 400 years back.

17 Lord MacMillan in his introduction to Radzinowicz' work, History of Criminal Law and Its Administration, op. cit. The arcanal and duplicative provisions need to be tossed and can be done in a re-write; but, to eliminate victimless crimes, as, for example, those relating to prostitution, pornography, and drugs -- is another matter. To obtain a consensus in respect to constructive laws is extremely difficult in a democracy, indeed, next to impossible.

18 Law and Literature.

19 The Magna Carta provided that mercy might be shown to villains, but only "by the oath of honest men of the vicinage." (Art. 20.)

20 There is nothing new about this; and, in part, has been operating in our criminal law system for quite some period of time. This approach has its roots in the law of outlawry. The notion of outlawry is timeless and maybe spotted in all societies of men. When a wrongdoer is brought before the ruling Council, a finding of guilt would mean he was turned loose to the victim, the victim's family, or, for that matter, anybody else who would like to join in; anything that the mob should inflict, from death to torture, was, OK. The maxim applicable to outlaws is, "Let them be answerable to all, and none to them." A person outlawed had no more rights than a dead man, civiliter mortuus. One, thus put outside the law, was deprived of its benefits and protection; one was then under a sentence of outlawry, a sentence, in times past that was worse than a sentence of death. In the earliest times "murder was punished by outlawry, but theft of goods and cattle by death." (Maitland, History of English Law, 1895.) The only hope that a condemned man might have is when a person came forward to take responsibility for him.


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