MORAL SIDE OF PUNISHMENT.

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Arson, again, may be the worst private crime that a man can CH. XVII. commit. It may be little more than half-childish mischief.

My other observation is that, in my opinion, the importance of the moral side of punishment, the importance that is of the expression which it gives to a proper hostility to criminals, has of late years been much underestimated. The extreme severity of the old law has been succeeded by a sentiment which appears to me to be based upon the notion that the passions of hatred and revenge are in themselves wrong; and that therefore revenge should be eliminated from law as being simply bad.

It is useless to argue upon questions of sentiment. All that any one can do is to avow the sentiments which he holds, and denounce those which he dislikes. I have explained my own views. Those which commonly prevail upon the subject appear to me to be based on a conception of human life which refuses to believe that there are in the world many bad men who are the natural enemies of inoffensive men, just as beasts of prey are the enemies of all men.

My own experience is that that there are in the world a considerable number of extremely wicked people, disposed, when opportunity offers, 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, I think, ought in extreme cases to be destroyed.

The view which I take of the subject would involve the increased use of physical pain, by flogging or otherwise, by way of a secondary punishment. It should, I think, be capable of being employed at the discretion of the judge in all cases in which the offence involves cruelty in the way of inflicting pain, or in which the offender's motive is lust. In each of these cases the infliction of pain is what Bentham called a characteristic punishment. The man who cruelly inflicts pain on another is made to feel what it is like. The man who gratifies his own passions at the expense of a cruel and humiliating insult inflicted on another is himself shamefully and painfully humiliated. This principle is recognised in a partial and unsatisfactory way in reference to robbery with violence, and attempts to strangle with intent

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CHANGE OF SENTIMENT AS TO CRIME AND PUNISHMENT.

CH.XVII. to commit a crime. I think it should be extended in the manner stated. It seems absurd that if a man attempting to ravish a woman squeezes her throat to prevent her from crying out he should be liable to be flogged, but that he should not be liable to be flogged if he puts one hand over her mouth and with the other beats her about the head with a heavy stone.

I think, too, that the punishment of flogging should be made more severe. At present it is little, if at all, more serious than a birching at a public school.

of

Crime is no doubt far less important than it formerly was, and the means now available for disposing of criminals, otherwise than by putting them to death, are both more available and more effectual than they formerly were. In the days of Coke it would have been impossible practically to set up convict establishments like Dartmoor or Portland, and the expense of establishing either police or prisons adequate to the wants of the country would have been regarded as exceedingly burdensome, besides which the subject of the management of prisons was not understood. Hence, unless a criminal was hanged, there was no way disposing of him. Large numbers of criminals accordingly were hanged whose offences indicated no great moral depravity. The disgust excited by this indiscriminate cruelty ought not to blind us to the fact that there is a kind and degree of wickedness which ought to be regarded as altogether unpardonable, just as there may be political offences which make it clear that the safety of particular institutions is inconsistent with the continued life of particular persons. Let any one read carefully such stories as those of Thurtell, Rush, Palmer, or other wretches of the same order, and ask himself under what circumstances or in what sort of society they could be trusted, and he will, I think, find it hard to deny that to allow such men to live, when their true character was known, would be like leaving wolves alive in a civilised country. Or take such a case as that of the reign of Louis Philippe. He was so sickened and horrorstruck by the reign of terror, that he shrank from vindicating his own power at the expense of the lives of his enemies. If he had been less scrupulous on this matter, and in particular if he

CHANGE OF SENTIMENT AS TO CRIME AND PUNISHMENT.

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had put to death Louis Napoleon for his attempt at CH.XVII. Boulogne, the Orleans family might still have been reigning in France. Great and indiscriminate severity in the law no doubt defeats itself, but temperate, discriminating, calculated severity is, within limits, effective, and I am not without hopes that in time the public may be brought to understand and to act upon this sentiment; though at present a tenderness prevails upon the subject which seems to me misplaced and exaggerated. It cannot, however, be denied that it springs from very deep roots, and that no considerable change in it can be expected unless the views current on several matters of deep importance should be greatly modified in what must at present be called an unpopular direction.

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CRIMINAL RESPONSIBILITY.

CH. XVIII.

CHAPTER XVIII.

CRIMINAL RESPONSIBILITY.

HAVING in the last chapter made some observations upon crime in general and punishments to be inflicted in respect of it, I now come to the subject of criminal responsibility. The general rule is, that people are responsible for their actions, but to this there are several exceptions of great importance and interest.

In considering this matter it will be necessary to depart from the method which I have hitherto followed of tracing out historically the growth of institutions and practices, and so explaining both their origin and their present form. The result in this case is more interesting and important than the process by which it was arrived at, and the result can be both described and criticised with less reference to the process than is possible in regard to other parts of the law.

The maxim, "Actus non facit reum nisi mens sit rea," is sometimes said to be the fundamental maxim of the whole criminal law; but I think that, like many other 1Latin

1 The authority for this maxim is Coke's Third Institute, fo. 6, where it is cited with a marginal note "Regula" in the course of his account of the Statute of Treasons. I do not know where he quotes it from. It does not occur, nor have I found anything like it, in the fiftieth book of the Digest, either in Title XVI., “De Verborum Significatione," or in Title XVII., "Regulæ "Juris." It occurs, however, in the Leges Henrici Primi, v. 28 (Thorpe, i. 511), "Reum non facit nisi mens rea." Coke uses it in reference to the words of the Act 25 Edw. 3, c. 2: "So as there must be a compassing or imagination, for an act done per infortunium, without compassing, intent, or imagination, is not within this Act, as it appears by the express words thereof, Et "actus non facit reum nisi mens sit rea.' And if it be not within the words "of this Act, then," &c. It seems to me that legal maxims in general are little more than pert headings of chapters. They are rather minims than maxims, for they give not a particularly great but a particularly small amount of information. As often as not, the exceptions and qualifications to them are more important than the so-called rules.

sentences supposed to form part of the Roman law, the maxim CH. XVIII. not only looks more instructive than it really is, but suggests

fallacies which it does not precisely state.

It is frequently though ignorantly supposed to mean that there cannot be such a thing as legal guilt where there is no moral guilt, which is obviously untrue, as there is always a possibility of a conflict between law and morals.

It also suggests the notion that there is some state of mind called a "mens rea," the absence of which, on any particular occasion, deprives what would otherwise be a crime of its criminal character. This also is untrue. There is no one such state of mind, as any one may convince himself by considering the definitions of dissimilar crimes. A pointsman falls asleep, and thereby causes a railway accident and the death of a passenger he is guilty of manslaughter. He deliberately and by elaborate devices produces the same result: he is guilty of murder. If in each case there is "6 a mens rea," as the maxim seems to imply, "mens rea" must be a name for two states of mind, not merely differing from but opposed to each other, for what two states of mind can resemble each other less than indolence and an active desire to kill?

The truth is that the maxim about " mens rea" means no more than that the definition of all or nearly all crimes contains not only an outward and visible element, but a mental element, varying according to the different nature of different crimes. Thus, in reference to murder, the "mens rea" is any state of mind which comes within the description of malice aforethought. In reference to theft the "mens rea" is an intention to deprive the owner of his property permanently, fraudulently, and without claim of right. In reference to forgery the "mens rea" is anything which can be described as an intent to defraud. Hence the only means of arriving at a full comprehension of the expression "mens rea" is by a detailed examination of the definitions of particular crimes, and therefore the expression itself is unmeaning.

There is, however, some room for generalisation upon the question, What are the general mental conditions of