principle upon which the penal legislation of the But a school has arisen which insists that this first prin- PAGE 256 us an entirely new conception of crime, and proposes an entirely new method of dealing with criminals. Its pretensions may be worth examining, 256 We are told by this school that we are to study crime scientifically; and a new science, or what purports to be such, has been invented for that end, and christened "criminology "" or "criminal anthro pology" . 257 In this new "science," crime is regarded as merely the result of social and biological factors, and the criminal is abnormal-that is, as a psycopath, a moral invalid: the victim of a mind diseased, of an organisation malformed, impoverished, or incomplete, whereby he is unfitted for self-adaptation to social life; and the common idea, "No crime' without moral responsibility," is rejected as unscientific Crime, indeed, in the proper sense, does not exist for the doctors of criminal anthropology. And with 258 259 Such are the theoretical positions of the new science." And what is called their "reformation," by raising the less. No science can possibly underlie, or issue While its reformatory method is mere sickly sentimentality, and even if judged by the standard of the criminal anthropologists themselves, must be pronounced a ghastly failure. PAGE 260 . 261 264 . 265 The new school of criminal anthropologists is, in fact, chiefly of account as a manifestation of the tendency, so observable everywhere and in every department of human thought and action, to bring everything within the boundaries of physical science to subject everything to the laws of matter . 267 One of the most favourite accusations brought by differing criminal anthropologists against one another is that of talking metaphysics. It seems to be assumed by them as certain, whatever else may be doubtful, that metaphysics has no right to exist : But the whole subject of crime, scientifically considered, falls under the domain of moral philosophy, and moral philosophy is based upon metaphysics, and can have no other basis 268 268 Moral philosophy treats de actibus humanis, of acts properly called human; that is, acts which are voluntary as proceeding from a man's will, with a knowledge of the end to which they tend, and free as so proceeding that under the same antecedent conditions they might or might not have proceeded. And the criterion whereby it judges of such acts is their conformity with, or opposition to, man's rational nature. Those which conform with that nature are morally good; those which oppose it are morally bad PAGE . 268 It is man's prerogative, as man and master of his fate," to choose between them. For that choice he is morally responsible. We praise or blame him— and the oracle within his own breast confirms the exterior judgment-according as his choice is rightly or wrongly made. Of such praise and blame an ethical element is the essence. This is the common teaching of the great masters of morals in all ages, and is the true and only foundation of moral science . What is meant by freedom of volition is the power of acting from a motive intelligible to, and chosen by, a self-conscious being, in virtue of the property of his will to be a law unto itself; a faculty of choosing that which reason independently of natural inclination declares to be practically necessary, or good." And in treating de actibus humanis different kinds of freedom are distinguished. A deed may be free, and therefore deliberate, actu, habitu, virtute, or interpretative It may be fully allowed that every man, during by far the greater part of his life, is solicited by conflicting 268 270 attractions, and that, in the very large majority A scientific Determinism is not in the least incompatible No doubt the power of volition varies indefinitely. PAGE . 271 279 279 . 280 As such must be accounted the dictum that the true test of criminality is knowledge. This is not so. It is not enough that the perpetrator of the noxious deed should have known what he was doing, and should have known, moreover, that it was wrong and against the law. To make a man really culpable there must be the mens rea, the criminous intention. And "intention means the free tendency of the will towards some end through some means "280 Maladies of the will are facts. But they are facts peculiarly difficult to establish. And the evidence of specialists, by which it is usually sought to establish them, should be accepted with great reserve We must say, then, that only wrongful acts intention ally done can be accounted crimes. Such is the right account of culpability. We go on to the next point, to inquire, What is the true rationale of punishment? The criminal law is unquestionably designed for the protection of society and the prevention of further crime. But is this the whole account of it? Is it only a regulation of police? That is a very inadequate conception of it, perverting it in its theory, robbing it of its dignity in the life of men, and emptying it of its vivifying idea The proper conception of punishment is that it is the correlative of culpability. Legal justice is but one aspect of general justice, which is "the constant and perpetual will to render to every one his due." Crime is the forcible negation of right, the violent disturbance of the rational order of society. And punishment "the other half of crime "—is something due to the reasonable part of the criminal There is in our nature a deep-rooted instinct which testifies to the connection between punishment and crime, and desires retribution. Like all instincts, it has to be brought under the control and discipline of reason. And when so controlled and disciplined it becomes criminal justice Punishment, then, must be just; it must be rightly proportioned to the offence, so that "the punished person, when he looks thereon, must himself confess PAGE 281 282 . 282 292 293 |