Penal Laws

“ Every civilized country construes its penal laws in favour of the liberty of the subject, and no punishment, especially one of death, is ever imposed unless the offence charged comes indubitably within a rigid construction of the law. ”

“ and the authority of making penal laws can only reside with the legislator, who represents the whole society, united by the social compact. ”

“ -- The fantastical idea of virtue & the public good being a sufficient security to the state against the commission of crimes, which you say you have heard insisted on by some, I assure you was never mine. It is only the sanguinary hue of our penal laws which I meant to object to. Punishments I know are necessary, & I would provide them, strict & inflexible, but proportioned to the crime. Death might be inflicted for murther & perhaps for treason if you would take out of the description of treason all crimes which are not such in their nature. Rape, buggery &c -- punish by castration. ”

“ The chief care of the legislators, in this body of penal laws, was the maintenance of orderly conduct and good morals in the community: they constantly invaded the domain of conscience, and there was scarcely a sin which was not subject to magisterial censure. The reader is aware of the rigor with which these laws punished rape and adultery; intercourse between unmarried persons was likewise severely repressed. The judge was empowered to inflict a pecuniary penalty, a whipping, or marriage *s on the misdemeanants; ”

“ Judges must beware of hard constructions, and strained inferences; for there is no worse torture, than the torture of laws. Specially in case of laws penal, they ought to have care, that that which was meant for terror, be not turned into rigor; and that they bring not upon the people, that shower whereof the Scripture speaketh, Pluet super eos laqueos; for penal laws pressed, are a shower of snares upon the people. ”

“ Practical men declare that ``the prohibitive penal law ought to be regarded as the first and most important of preventive laws.'' The prfets in their circulars, being concerned about the increase of crime, put forward the most vigilant and severe repression as a sovereign remedy. ”

“ 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 ”

“ When we speak of the repression of crime, we must first of all distinguish between that which is due to the general character of penal legislation, more or less severe, and that which is secured by the administration by the judges of the law as it is. ”

“ When the deed is done he recognizes that the punishment is out of all proportion to the offence,—which is in itself the primary recognition of a penal code,—and more especially that the judgment of man is against him. ”

“ I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. ”

“ The Supreme Court have given the following definition. "An ex post facto law is one, which renders an act punishable in a manner, in which it was not punishable, when it was committed." [32] Such a law may inflict penalties on the person, or may inflict pecuniary penalties, which swell the public treasury. [33] Laws, however, which mitigate the character, or punishment of a crime already committed, may not fall within the prohibition, for they are in favour of the citizen. ”

“ The penal code and the code of criminal procedure that have replaced it attempt to ensure that criminals are not able to evade the penalties provided for in the law but, at the same time, there is a stated guarantee against the arrest, trial, or conviction of innocent persons. ”

“ CRIMINAL LAW. By criminal, or penal, law is now understood the law as to the definition, trial and punishment of crimes, i.e. of acts or omissions forbidden by law which affect injuriously public rights, or constitute a breach of duties due to the whole community. The sovereign is taken to be the person injured by the crime, as he represents the whole community, and prosecutions are in his name. ”

“ Upon that system, it would be necessary to form, not only a particular code for every individual, but a new penal law for every crime. Men, often with the best intention, do the greatest injury to society, and with the worst do it the most essential services. ”

“ Any person speaking in derogation of the Book, or interrupting its use, or causing a minister to use any other form, is for the first offence to forfeit ten pounds, for a second offence twenty pounds; on a third occasion he is to forfeit all his goods and chattels and suffer imprisonment for life. These penalties are to be enforced by judges of assize, proceeding in the manner customary on indictment for trespass.
What have we here? A purely penal statute, imposing the crushing penalties usual at the time. My purpose is to show the relation of the statute to the Book of Common Prayer. ”

“ It moreover inflicts a penalty which, by the laws of this State, is a part of the punishment inflicted for a felony, and which follows conviction for such a crime. It is one of the peculiar characteristics of our free institutions, that every citizen is permitted to enjoy certain rights and privileges, which place him upon an equality with his neighbors. Any law which takes away or abridges these rights, or suspends their exercise, is not only an infringement upon their enjoyment, but an actual punishment. ”

“ And be it further enacted, That if in the act of violating any provision in either of the two preceding sections, any other felony, crime, or misdemeanor shall be committed, the offender, on conviction of such violation of said sections, shall be punished for the same with such punishments as are attached to the said felonies, crimes, and misdemeanors by the laws of the State in which the offence may be committed. ”

“ I am here, therefore, to invite and cheerfully submit to the highest penalty that can be inflicted upon me for what in law is a deliberate crime and what appears to me to be the highest duty of a citizen. The only course open to you, the Judge, is as I am just going to say in my statement, either to resign your post, or inflict on me the severest penalty, if you believe that the system and law you are assisting to administer are good for the people. ”

“ Indisputably under our constitutional system the right to try offenses against the criminal laws, and, upon conviction, to impose the punishment provided by law, is judicial, and it is equally to be conceded that, in exerting the powers vested in them on such subject, courts inherently possess ample right to exercise reasonable, that is, judicial, discretion to enable them to wisely exert their authority. ”

“ The careless nurse is a criminal and may be confined in a penitentiary; while perhaps a man who may be guilty of a great iniquity and known to be so drives nonchalantly off in his coach and four.
What is crime? We may well ask the question, only eventually to be confronted by that illuminating definition with which begins the Penal Code—"A crime is an act or omission forbidden by law and punishable upon conviction by ... ”

“ Penal law is the right of punishment. It is based on the ideas of culpability and expiation, and these are based on the idea of free-will, which is itself founded on a pure illusion, as we have shown above. ”

“ Our criminal code, artificial and indiscriminating as it is, is the growth of ages and is the result of the notion that society ought to take vengeance upon the criminal, at least that it ought to punish him, and that the judge, the interpreter of the criminal law, was not only the proper person to determine the guilt of the accused, by the aid of the jury, but was the sole person to judge of the amount of punishment he should receive for his crime. ”

“ The law, authorising an appeal to the highest judicature in criminal matters only, shows an attention to personal security, rendered the more obligatory by the extreme severity of their penal code, which would naturally have made them more cautious of a wrong conviction. ”

“ Whosoever shall maliciously send, deliver, or utter, or directly or indirectly cause to be received, knowing the Contents thereof, any Letter or Writing threatening to kill or murder any Person, shall be guilty of Felony, and being convicted thereof shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for any Term not exceeding Ten Years and not less than Three Years,—or to be imprisoned for any Term not exceeding Two Years, with or without Hard Labour, and with or without Solitary Confinement, and, if a Male under the Age of Sixteen Years, with or without Whipping. ”

“ It might be supposed that communities thus familiarized with the punishment of crime by public authority would rapidly develop a criminal jurisprudence by the simple and direct process of adding from time to time new crimes, perhaps in the order of their supposed enormity, to their catalogue of offenses. ”

“ I do again and again urge upon your lordships' justice this one broad principle of the Constitution, that by the law of England no man can be punished unless he is convicted of a crime; that when you degrade, you punish; that when you take away franchise, you punish; and that, therefore, this is a bill inflicting punishment upon parties against whom not merely no crime has been proved, but against whom no charge even has been made. ”

“ We are generally informed that our penal systems exist for the purpose of repressing crime, and that punishment is thus inflicted upon the criminal in order that others may be deterred from following his example. ”

“ In recognition of this right, so reserved to the states, the words of the clause in reference to fugitives from justice were made sufficiently comprehensive to include every offense against the laws of the demanding state, without exception as to the nature of the crime. ”

“ This account of the considerations which have regulated the punishment of crimes explains the severity with which 'criminal negligence' is in some cases punished, and that severity is justified by the account given of the true principle of criminal law, the principle, viz., that crime should be punished according to the importance of the right which it violates, and to the degree of terror which in a well-organised society needs to be associated with the crime in order to the protection of the right. ”

“ Moreover, the Penal Code imports into the definition of nearly every crime, and, therefore, into the charge on which the accused is tried, words the purport of which is to describe the state of mind of the accused at the time the alleged act was committed, thereby making it necessary to ascertain at the trial what that state of mind was. ”

“ In order to secure an accurate conception of the legal system, the early growth of which it is proposed to examine, it may be well to premise that the criminal law, which with a substantial uniformity of cardinal ideas now prevails in all civilized states, is well defined as "that branch of juridical law treating of those wrongs which the government notices as injurious to the public, and punishes by what is called a criminal proceeding, in its own name." ”

“ For the point of punishment, an indictment will lie at the king’s suit, against the false imprisoner, grounded on this statute, for the vindication of the public justice of the nation; and the party, if found guilty, shall be punished by fine and imprisonment. For the relief of the person injured, he may have an action of false imprisonment, wherein he shall recover damages; or an action on the case grounded on this statute, wherein he shall have the same remedy. ”

“ Provided, That all persons may elect to sue for the penalties aforesaid, or to proceed under their rights at common law and by State statutes; and having so elected to proceed in the one mode or the other, their right to proceed in the other jurisdiction shall be barred: But this provision shall not apply to criminal proceedings, either under this act or the criminal law of any State: and provided further, That a judgment for the penalty in favor of the party aggrieved, or a judgment upon an indictment, shall be a bar to either prosecution respectively. ”

“ Under a Legislation which should strictly and systematically embrace every possible crime against the outward Rights of the Citizens, and under an Administration from which actual crime could seldom or never conceal itself or escape the punishment threatened by the Law, every thought of crime, as something wholly vain and leading to nothing but certain punishment, would at once be stifled in its birth. ”

“ The other conditions of a penal law, which, though not absolutely necessary, are, to a very high degree, fit, are, that to the moral violation of the law there are many temptations, and, that of the physical observance there is great facility. ”

“ The violation of right in one case is proceeded against by the method of indictment, in the other by an 'action.' The distinction that in one case punishment is the object of the process, in the other redress, is introduced in order to explain the difference of procedure; and to justify this distinction resort is had to the further distinction, that civil injury is considered to affect the individual merely, crime to affect the state. ”