Penal law

“ 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. ”

“ 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. ”

“ If no specific penal law can be directly applied to this act, then it shall be punished according to the law whose underlying spirit can be most readily applied to the act.” [24]
At the same time, the following articles were added to the code of criminal procedure:
“Article 170a—If an act deserves punishment according to the sound sentiment of the people, but is not declared punishable in the code, the prosecution must investigate whether the underlying principle of a penal law can be applied to the act and whether justice can be helped to triumph by the proper application of this penal law. ”

“ The procedure in penal cases including the administration of punishment, in civil cases and in matters of voluntary jurisdiction, is to be simplified and expedited, by eliminating all dispensable measures and by utilizing all available manpower, as far as it is compatible with the purpose of the procedure. In particular, in penal cases the enforcement of the indictment by the offended party, and the formal decree of the court opening, the trial will be eliminated; the authority of the local court in penal matters is to be enlarged, and the admissibility of writs of punishment to be extended. ”

“ 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 laws, strictly and properly, are those imposing punishment for an offense committed against the state, and which, by the English and American Constitutions, the executive of the state has the power to pardon.' Besides, the act throughout uses the words 'fine,' and 'fined,'-words which, in their primary sense, import the punishment of a person convicted of crime. ”

“ In fact, our artisans have become, since the revolution of 1830, not only judge and jury, but legislators also. Different crimes have different punishments assigned to them by our penal code; but it rarely, or I might say never, occurs in our days that the punishment inflicted has any reference to that which is assigned by the law. ”

“ 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. ”

“ JUDGES, in criminal cases, have no right to interpret the penal laws, because they are not legislators. They have not received the laws from our ancestors as a domestic tradition, or as the will of a testator, which his heirs, and executors are to obey; but they receive them from a society actually existing, or from the sovereign, its representative. ”

“ The conclusion, therefore, would seem to be, that a short simple code, with every punishment attached to every offence, with every motive for aggravation of punishment stated, and on so moderate a scale that no discretion for its mitigation should be necessary, would be the means best calculated to give to penal laws their utmost value as preventives of crime, though experience proves that as such preventives their place is a purely secondary one in a really good system of legislation. ”

“ Besides, according to common notions, avowed by writers upon morals on less general principles, and by lawyers too, all penal laws give a man an alternative, either to abstain from the action prohibited, or to take the penalty. ”

“ That these causes do to a great extent defeat the preventive effect of our penal laws, is proved by the tale of our criminal statistics, which reveal the fact that most of our crime is committed by those who [100] have once been punished, and that of general crime about 77 per cent. is committed with impunity. But if so large a proportion of crimes pass unpunished altogether, it is evident that society depends much less for its general security upon its punishments than is commonly supposed. ”

“ 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. ”

“ 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. ”

“ Looking to the language of the clause, it is difficult to comprehend how any doubt could have arisen as to its meaning and construction. The words, 'treason, felony, or other crime,' in their plain and obvious import, as well as in their legal and technical sense, embrace every act forbidden and made punishable to a law of the State. The word 'crime' of itself includes every offence, from the highest to the lowest in the grade of offences, and includes what are called 'misdemeanors,' as well as treason and felony. ”

“ 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 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; ”

“ The object of criminal jurisprudence should be the repression of crime to the lowest possible amount, the treatment of the criminal being a means to that end, not an end itself; (2) with retribution for sin, man, in regard to his fellow-man, has nothing to do; (3) punishment used solely as a deterrent being often futile, at the best insufficient, and always uncertain in effect, two methods alone exist of preventing crime by penal means, namely, incapacitation or reformation. Under incapacitation come capital punishment and imprisonment. ”

“ This is the point from which we start; each indictment is now a bill of pains and penalties, a special law naming the criminal and prescribing his punishment. A second step is accomplished, when the multiplicity of crimes compels the legislature to delegate its powers to particular Quæstiones or Commissions, each of which is deputed to investigate a particular accusation, and if it be proved, to punish the particular offender. ”

“ 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. ”

“ The Constitution of the United States and of every State has made it a part of the fundamental law of the land that "no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury," except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger. A felony is an infamous crime. ”

“ Next comes the “délit,” which includes all offences punished by imprisonment over a week and under five years. Then, finally, we arrive at the “crime,” the highest form of offence in French criminal law. It includes all offences subject to a more severe sentence than the punishment assigned to a délit. All cases are held to be crimes where death, life-imprisonment with or without hard labour, deportation out of the kingdom, detention or seclusion in a fortress or other expressly assigned place, are the punishments mentioned by the law. ”

“ 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. ”

“ The Government's whole argument rests on the stark premise that Congress has left to the district attorney or the Attorney General the power to say whether the judge and jury must punish identical conduct as a felony or as a misdemeanor.
A basic principle of our criminal law is that the Government only prosecutes people for crimes under statutes passed by Congress which fairly and clearly define the conduct made criminal and the punishment which can be administered. ”

“ An offense cognizable in any court is cognizable in that court. If the offense be punishable by law, that court is competent to inflict the punishment. The judgment of such a tribunal has all the obligation which the judgment of any tribunal can have. To determine whether the offense charged in the indictment be legally punishable or not, is among the most unquestionable of its powers and duties. The decision of this question is the exercise of jurisdiction, whether the judgment be for or against the prisoner. ”

“ 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. ”

“ The criminal law which had its origin when violence was rife is admirably adapted to the prevention, prosecuting and punishment of crude crimes, such as arson, rape, robbery, burglary, mayhem, assault, homicide, and "common-law" larceny,—theft accompanied by a trespass. In old times everything was against the man charged with crime—at least that was the attitude of the court and jury. "Aha!" exclaims the judge as the evidence goes in. ”

“ If a person be charged with the commission of murder, piracy, arson, robbery, or forgery within the United States of America, and ‘charged upon such evidence of criminality as according to the law of the place where the fugitive or person so charged shall be found would justify his apprehension and commitment for trial, if the crime or offence had been there committed,’ he may be apprehended, and his case is to be heard, and considered. ”

“ Whosoever shall, by any Means other than those specified in any of the preceding Sections of this Act, attempt to commit Murder, 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 Life or for any Term 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. ”

“ What organization was provided for the enforcement of order, and for the protection of life and property? For its first line of defence England trusted to the supposed deterrent effect of a rigorous penal code; the more humane and effectual method, prevention, being lost sight of in the mistaken belief that it was possible to extirpate crime by the severity with which it was punished, a belief that survived in face of the fact, that as punishment increased in bitterness, so did offences grow in frequency and in violence. ”

“ This term 'misdemeanor' has been generally understood to mean the lower grade of criminal offense as distinguished from a felony. It is true that the term has often been used in the statutes of the United States without strict regard to its common-law meaning, and sometimes to describe offenses of a high grade, which have been declared in the statutes to be misdemeanors. In the statutes of the states, the term has generally been defined as embracing crimes not punishable by death or imprisonment in the penitentiary. ”

“ Abolition of distinction between felony and misdemeanour. 1.— (1) All distinctions between felony and misdemeanour are hereby abolished.
(2) Subject to the provisions of this Act, on all matters on which a distinction has previously been made between felony and misdemeanour, including mode of trial, the law and practice in relation to all offences cognisable under the law of England and Wales (including piracy) shall be the law and practice applicable at the commencement of this Act in relation to misdemeanour. ”