What is necessary to the Perfection of the Penal Code.—Acts meet for Punishment.—What is required to the Definition of an Offence.
In the term violation, we include all those acts by which the powers, conveyed by a right, are prevented from operating according to the will of the owner.
With respect to a part of such acts, all that it is found convenient to do, through the instrumentality of judicature, is, to remove the obstruction which prevents the enjoyment of the right, without inflicting any penalty for creating it. Thus, if a debt is not paid when due, the right is violated of the man who ought to receive it. Enough, however, is in this case supposed to be done, if the man who owes the debt is constrained to make payment. The act of secretly abstracting, with a view to appropriate, a property of perhaps less value, would be an act which the laws of all nations would punish as theft.
Of injurious acts, those alone, to the commission of which it has been deemed expedient that penalties should be annexed, are considered as the object of the penal code. Of injurious acts so perfect an analysis has been exhibited by Mr. Bentham; so perfectly, too, have the grounds been laid down upon which those acts which are destined for punishment should be selected from the rest; and so accurately have the principles, according to which punishment should be meted out, been established, by that great philosopher, that, on this part of the subject, the philosophy of law is not far from complete.
As acts are declared to be offences, and are made subject to punishment, solely for the protection of rights, it is evident, that all acts which enter into the penal code, are acts which infringe rights, either directly, or indirectly. Those which infringe them directly, are those by which injury is done to some individual or individuals; a blow, for example, an act of theft, and so on. We include also, under this division, all acts the effects of which produce an immediate infringement of rights; destroying a mound, for example, to inundate the lands of another man; importation of infection, by which the health or lives of others may be destroyed. Those acts by means of which rights are affected indirectly, are those which bear immediately upon the means which the state has provided for the protection of rights. The means which the state has provided for the protection of rights, are the operations of government generally. All acts, therefore, meet for punishment, are acts which disturb, either individuals in the enjoyment of their rights, or the operations required for the protection of those rights. The latter, though mediately, and not immediately hurtful, are apt to be more extensively mischievous than the former. An act which infringes a right immediately, is commonly injurious only to one individual, or a small number of individuals; an act which prevents any of the operations of government from proceeding in its natural course is injurious to all those individuals to whose protection the due course of that operation is useful. Permit acts which interrupt all the operations of government, and all rights are practically destroyed.
If, as it thus appears, acts are meet for punishment, only because they infringe a right, or because they interrupt the operations provided for the protection of rights, it is evident, that, in the definition of one set of those acts, must be included the specification of the right which is infringed; and, in the definition of the other, must be included the specification of the operation disturbed. Before, therefore, an accurate penal code can exist, there must exist an accurate civil code, and also what we may call a constitutional or political code; the latter consisting of an accurate definition of the powers created for the purposes of government, and of the limitations applied to their exercise.
From what has been said, it may appear, that the definition of offences, by which name we shall hereafter distinguish punishable acts, consists necessarily of two parts. The first part is the specification of the right infringed, or the operation of government disturbed; and the second part is the definition of the mode. Thus, for the definition of an act of theft, the right which the act has violated must be distinctly marked, and also the mode in which the violation has been committed. In one and the same class of offences, those against property for example, the mode in which the violation is performed is that chiefly which constitutes the difference between one offence and another. In a theft and a robbery, the right violated may be exactly the same; the mode in which the violation was effected constitutes the difference.
For several purposes of the penal code, it is useful, that, in the specification of the right violated, the value of what has been violated, in other words, the amount of the evil sustained, should sometimes be included. It is evident, that the value of rights can be judged of ultimately, only by a reference to human feelings. Of these feelings, however, certain outward marks must be taken as the standard. In offences which concern property the modes of valuation are familiarly known. In injuries to the person, those marks which denote injuries regarded by mankind in general as differing in magnitude; the size, for example, or position, of a wound; in injuries to reputation, the words used, and the occasion when, and so forth, are the only means of distinction which can be employed.
It may be necessary also to remark, that, in that part of the definition which relates to the mode, are to be distinguished the parties, when more than one, who engage in the same offence with different degrees of criminality; meaning, by different degrees of criminality, nothing more than demand for different degrees of punishment. The chief classes of such persons are those of principals and accessaries; and of accessaries both those before, and those after the fact.
In the definition of the mode, the act is first to be described in its ordinary shape. The act, however, may be attended with aggravating circumstances on the one hand, or extenuating circumstances on the other; presenting a demand for increased punishment in the first case, and diminished punishment in the second. Mr. Bentham has logically remarked, that the circumstances which are to be regarded as aggravating, and the circumstances which are to be regarded as extenuating, being pretty nearly the same in all cases, they may be defined, in a separate chapter, once for all. This being done, the code proceeds in the following manner: The definition is given of the offence in its ordinary shape, and the appropriate punishment is annexed; then immediately follows the same offence with aggravating circumstances; punishment so much the more severe: the same offence with extenuating circumstances; punishment so much the less.
Thus far we have spoken of the definition of offences, into which we have entered the less in detail, because we do not think there is much of controversy on the subject. Many persons, who doubt the possibility of framing a civil code; though, after the preceding exposition of the subject, it is a doubt which could not, we should imagine, very easily maintain itself; allow, that offences may all be defined; and that it is possible to prevent the monstrous iniquity of punishing men for acts, as offences, which they have not the means of knowing to be such.