Austin, Lectures on Jurisprudence, 5th ed., vol. 1, lecture 27

I wish, before I commence, to correct one or two mistakes into which I fell in my last Lecture.

I said that furious anger is a ground of exemption in the Roman Law. Now anger may be such as to exclude all consciousness of the unlawfulness of the act; or it may not exclude all consciousness of the unlawfulness: although it prompts the party to an act (accompanied by an unlawful intention), from which he would otherwise abstain.

It is only in the first case that it is a ground of exemption in the Roman Law. It exempts, precisely as insanity exempts, and is in truth considered as temporary madness. When the anger does not exclude all consciousness of the unlawfulness of the act, and is yet a cause of mitigation, the ground is not the absence of unlawful intention and of unlawful inadvertence, but the absence of deliberate intention. In this, as in various other cases, the disposition of the party is taken into the account, and 500as less malignity of disposition is evinced by a criminal intention when sudden than when deliberate, the punishment is commonly less. In English Law, for example, if the fact were homicide, the offence would in the one case be murder, in the other only voluntary manslaughter.

On the other hand, where an act which does suspend the use of reason is not a ground of exemption, it is because the act arises remotely from negligence. Thus, where drunkenness is not a ground of exemption, as in our own law, the party is not answerable because at the time of the wrong he was guilty of unlawful intention or unlawful inadvertence; but because he has negligently placed himself in a position from which he might have known that criminal acts were not unlikely to ensue.

I also stated too roundly that acquisitive præscription in its direct form is unknown in the English Law. A præscription in a que estate, as it is called, or a præscription of an easement appurtenant, is recognised directly by the English Law. But I think this is the only instance. Easements in gross are not acquired by præscription in that direct way, but in the oblique mode before explained. Rights amounting to proprietas or dominium are never acquired by direct præscription. The operation of the different statutes of limitation is purely negative or extinctive; it merely bars the right of a definite person, and does not give to the party in possession a right which he can enforce against the world. I may plead the statutes of limitation in bar to an action brought by a party who would otherwise be entitled. But in order to enforce my right of property against third parties, I can only proceed by proving anterior possession. This, against a person who can produce no title at all, establishes my right.

The distinction between acquisitive and negative præscription turns solely, as it appears to me, upon the nature of the evidence which it is requisite to give in order to enable the owner to recover the thing when detained by a stranger. It may be only necessary to show anterior possession, in order to enable him to maintain an action; or to maintain an action it may be necessary for him to shew his title. If it be necessary to shew his title, then unless a title may be acquired by acquisitive præscription, he cannot sustain the action. But the right which he possesses under the statute of limitation certainly would not enable him to maintain an action against a third party.

Having endeavoured to explain the essentials of Injuries 501and Sanctions, and, therein, to illustrate the nature of obligations or duties, I will now advert to the differences by which sanctions are distinguished. If I attempted a complete examination of all these differences, the present inquiry would run to inordinate length: And those more important differences upon which I shall touch, will sufficiently suggest the others to the memory or reason of my hearers.

And, first; Sanctions may be divided into civil and criminal, or (changing the expressions) into private and public.

As I remarked in a former Lecture,²¹ the distinction between private and public wrongs, or civil injuries and crimes, does not rest upon any difference between the respective tendencies of the two classes of offences: All wrongs being in their remote consequences generally mischievous: and most of the wrongs styled public, being immediately detrimental to determinate persons.

²¹ Lecture XVII. p. 405, ante.

Viewed from a certain aspect, all wrongs and all sanctions are public. For all wrongs are violations of laws established directly or indirectly by the Sovereign or State. And all sanctions are enforced by the sovereign, or by sovereign authority.

But in certain cases of wrongs which are offences against rights, or (changing the expression) which are breaches of relative duties, the sanction is enforced at the instance or discretion of the injured party. It is competent to the determinate person immediately affected by the wrong, to enforce or remit the liability incurred by the wrong-doer. And, in every ease of the kind, the injury and the sanction may be styled civil, or (if we like the term better) private.

In other cases of wrongs which are breaches of relative duties, and in all cases of wrongs which are breaches of absolute duties, the sanction is enforced at the discretion of the Sovereign or State. It is only by the sovereign or state that the liability incurred by the wrong-doer can be remitted. And in every case of the kind, the injury and the sanction may be styled criminal or public.

In some countries, the pursuit or prosecution of Crimes does not strictly reside in the sovereign or state, but in some member of the sovereign body. For instance, the pursuit of criminals resides in this country in the King; or, in a few instances, in the House of Commons, as when it impeaches an alleged offender before the House of Lords. The definition of a criminal sanction and of a crime must therefore be taken with this qualification.

502In short, the distinction between private and public wrongs, or civil injuries and crimes, would seem to consist in this:

Where the wrong is a civil injury, the sanction is enforced at the discretion of the party whose right has been violated. Where the wrong is a crime, the sanction is enforced at the discretion of the sovereign.²² And, accordingly, the same wrong may be private or public, as we take it with reference to one, or to another sanction. Considered as a ground of action on the part of the injured individual, a battery is a civil injury. The same battery, considered as a ground for an indictment, is a crime or public wrong.

²² See distinction between Civil Injuries and Crimes, in Lecture XVII., ‘On Absolute Duties,’ p. 405, ante.

The distinction, as I have now stated it, between civil injuries and crimes, must, however, be taken with the following explanations.

1st. In certain cases of civil injury, it is not competent to the injured party, either to pursue the offender before the tribunals, or to remit the liability which the offender has incurred. For example, An infant who has suffered a wrong is not capable of instituting a suit, nor of renouncing the right which he has acquired by the injury. The suit is instituted on his behalf by a general or special Guardian: who (as a trustee for the infant) may also be incapable of remitting the offender’s liability.

It were, therefore, more accurate to say, that where the wrong is a civil injury, the sanction is enforced at the instance of the injured, or of his representative; and that the liability of the offender (if remissible at all) is remissible by the injured party, and not by the sovereign or state.

2ndly. When I speak of the discretion of the sovereign or state, I mean the discretion of the sovereign or state as exercised according to law. For, by a special and arbitrary command, the sovereign may deprive the injured of the right arising from the injury, or may exempt the wrong-doer from his civil liability. [Herein lies the difference between governments of law and governments of men.] In one or two of the bad governments still existing in Europe, this foolish and mischievous proceeding is not uncommon. For example, Letters of protection are granted by the government to debtors, and by these the debtors are secured from the pursuit of their creditors. But in cases of this kind the sovereign partially abrogates his own law to answer some special purpose. This is never practised by wise 503governments, whether monarchical or other. The Great Frederick, in spite of his imperious temper and love of power, always conformed his own conduct to his own laws.

Letters of protection were granted in this country by the King, so late as the reign of William III.²³ These must have been illegal. For though the King is empowered by the Constitution to pursue and pardon criminals at his own discretion, he is not Sovereign. It is not competent to him to disregard the law by depriving the injured party of a right of civil action. In an analogous case, this has, however, been done by the Parliament. A person named Wright sued a number of clergymen for non-residence;²⁴ and though he had been encouraged to bring these actions by the invitation of the existing law, Parliament passed an Act indemnifying the clergymen, and put off poor Wright with the expense of the actions which he had brought.

²³ See the case of Lord Cutts, 3 Lev. 332.

²⁴ Some of the cases are reported in Taunton, vols. v. and vi. I presume the Act referred to is 57 Geo. III. c. 99.—R. C.

The distinction between private and public wrongs, is placed by some on another ground:

Where, say they, the injury is a crime, the end or scope of the sanction is the prevention of future injuries. The evil inflicted on the individual offender, is inflicted as a punishment, or for the sake of warning or example. In other words, the evil is inflicted on the individual offender, in order that others may be deterred from similar offences. Where the injury is civil, the end of the sanction is redress to the injured party.

Now, it is certainly true, that where the injury is treated as a crime, the end of the sanction is the prevention of future wrongs. The sanction is pœna or punishment (strictly so called): that is to say, an evil inflicted on a given offender in order that others may observe the law. Or (what is the same thing) the evil is inflicted on the given offender, by way of example, warning, or documentum: In order that others may be reminded of the evils threatened by the law, and may be convinced that its menaces are not idle and vain.

This is manifestly the meaning of the word example, when we speak of punishment being inflicted for the sake of example. We mean that the punishment is inflicted by way of caution or warning; for the sake of recalling to others the threats of the law. The word commonly used by Latin writers, and more especially by Tacitus, is documentum. If the evil did not answer this purpose, it would be inflicted to no end.

504It is also equally true, that where the injury is considered civil, the proximate end of the sanction is (generally speaking), redress to the injured party. But, still, the difference between civil injuries and crimes, can hardly be found in any difference between the ends or purposes of the corresponding sanctions.

For, first; Although the proximate end of a civil sanction, is, generally speaking, redress to the injured party, its remote and paramount end, like that of a criminal sanction, is the prevention of offences generally.

And, secondly; An action is sometimes given to the injured party, in order that the wrong-doer may be visited with punishment, and not in order that the injured party may be redressed. Actions of this sort (to which I shall advert immediately) are styled penal: In the language of the Roman Law, pœnæ persecutoriæ.

It is quite clear that the necessity of making redress, and of paying the costs of the proceeding by which redress is compelled, tends to prevent the recurrence of similar injuries; The immediate effect of the proceeding is the restitution of the injured party to the enjoyment of the violated right, or the compulsory performance of an obligation incumbent upon the defendant, or satisfaction to the injured party in the way of equivalent or compensation. But the proceeding also operates in terrorem. For it is seen that the wrong-doer is stripped of every advantage which he may have happened to derive from the wrong, and is subjected to the expenses and other inconveniences of a suit.

Accordingly, a promise not to sue, in case the promisee shall wrong the promisor, is void (generally speaking) by the Roman Law: Although it is competent to a party who has actually suffered a wrong to remit the civil liability incurred by the wrong-doer. And the reason alleged for the prohibition is this: That such a promise removes the salutary fear which is inspired by prospective liability. A right of action is not merely considered as an instrument or means of redress, but as a restraint or determinative from wrong.

In short, the end or purpose for which the action is given is double: redress to the party directly affected by the injury, and the prevention of similar injuries: The accomplishment of the former, which is the proximate purpose, tending to accomplish the latter, which is the remote and paramount.

505Assuming, then, that the redress of the injured party is always one object of a civil proceeding, it cannot be said that civil and criminal sanctions are distinguished by their ends or purposes.

It may, however, be urged, that the prevention of future injuries is the sole end of a criminal proceeding; whilst the end of a proceeding styled civil, is the prevention of future injuries and the redress of the injured. But even this will scarcely hold. For in those civil actions which are styled penal, the action is given to the party, not for his own advantage, but for the mere purpose of punishing the wrong-doer.

For example; Theft is not a crime, but a private delict: But besides the action for the recovery of the thing stolen, the thief was liable to a penalty, to be recovered in a distinct action by the injured party.

So, again, if the heirs of a testator refused to pay a legacy left to a temple or church, they were not only compelled to yield ‘ipsum rem vel pecuniam quæ relicta est, sed aliud, pro pœnâ.’

There are (I think) cases of the kind in our own law, though I cannot at this instant recal them. In such cases, the end of the action is not redress, but prevention.

Although by these civil actions a right is conferred upon the party injured, the end for which the actions are given is not to redress the damage which has been suffered by him, but to punish the wrong-doer, and by that means to prevent future wrongs. In the case of theft, for example, the damage sustained by the injured party is redressed by the first action for restitution, and the end of the other action for the penalty is solely the punishment of the offender. Also popular actions, or actions given cuivis ex populo, which exist both in the Roman and English Law, evidently have the punishment of the offender for their object.

Besides this principal distinction, there are other species of sanctions requiring notice. Laws are sometimes sanctioned by nullities. The legislature annexes rights to certain transactions; for example, to contracts, on condition that these transactions are accompanied by certain circumstances. If the condition be not observed, the transaction is void, that is, no right arises; or the transaction is voidable, that is, a right arises, but the transaction is liable to be rescinded and the right annulled. Whether the transaction is void or voidable, the sanction may be applied either directly or indirectly. The transaction may 506either be rescinded on an application made to that effect, or the nullity may be opposed to a demand founded on the transaction. An instance of the first kind is an application to the Court of Chancery to set aside the transaction: an instance of the second is afforded by a defendant who opposes a ground of nullity to an action at common law. The distinction in English Law between void and voidable is the same as that in the Roman Law between null ipso jure and ope exceptionis. The first conferred no right; the second conferred a right which might be rescinded or destroyed by some party interested in setting it aside. Ope exceptionis is an inadequate name, for the transaction might be rescinded, not only by exceptio, that is, a plea, but by applications analogous to an application to Chancery to set aside a voidable instrument or an instrument obtained by fraud.

In certain cases, sanctions consist in pains to be endured by others, and are intended to act on us through sympathy. These Mr. Bentham has styled vicarious punishments. They fall on other persons in whom we take an interest, and if they affect us at all, affect us by our sympathy with those persons. Forfeiture, in treason, is an instance. As it falls upon a person who by the supposition is to be hanged, it is evident that it cannot affect him, but it affects those in whom he is interested, his children or relations, and may possibly, for that reason, influence his conduct. Annulling a marriage has in part the same effect, since it not only affects the parties themselves whose marriage is annulled, but also bastardises the issue.

Sanctions, in some other cases, consist of the application of something not itself affecting us as an evil, but affecting us by association as if it were an evil. Posthumous dishonour is of this nature. It is applied as a punishment in the case of suicides who are buried with certain ignominious circumstances. This, of course, can only operate upon the mind of the party by association, since at the time when he is buried he is not conscious of the manner of his burial.

In adverting to the difference between civil and criminal sanctions, I forgot to say that where the sanction is criminal, or where the proceeding is criminal, or rather where the injury is considered as a crime, nothing but the intention of the party, the state of his consciousness, is looked to; where, on the other hand, it is a civil injury, an injury must have been committed; for the immediate end, by the supposition, is the redress of the injury to the given party: which supposes that an injury has been committed. The state of the party’s consciousness is the 507only circumstance which is considered in crimes; and on this principle a party is punished for attempts. Generally, attempts are perfectly innocuous, and the party is punished, not in respect of the attempt, but in respect of what he intended to do.

As it is at present used, it has the extensive meaning which I have attached to it, and denotes any conditional evil annexed to a law to produce obedience and conformity to it. According to this acceptation, which I believe is now general among writers on the subject, the liabilities under civil actions may be called sanctions with the same propriety as punishments under a criminal proceeding. But the term sanction is frequently limited to punishments strictly so called. This is the sense in which the word is used by Blackstone, though not consistently. With the Roman lawyers, who were the authors of the term, or rather who adopted it from the popular language of their own country, sanction denoted, not the pain annexed to a law to produce obedience, but the clause of a penal law which determines and declares the punishment.

In the Digest the etymology of the word is said to be this: Sanctum is defined quod ab injuria hominum defensum est, and is said to be derived from sagmina, the name of certain herbs which the Roman ambassadors bore as marks of inviolability. The term was transferred, in a manner not uncommon, from the mark of inviolability, to what is frequently a cause of inviolability, namely punishment.

In other cases sanction neither denotes the evil nor the clause determining the evil: it signifies confirmation by some legal authority. Thus, we say that a Bill becomes law when sanctioned by Parliament, and that it does not become law till it is sanctioned by the Royal assent, or till it has received the Royal sanction. And it is often used in this sense by the Roman lawyers.

Sanctio is also used to denote generally a law or legislative provision, or to denote the law or body of law collectively. Thus, in the beginning of the Digest, totam Romanam Sanctionem is used for the whole of the Roman Law. Sancire means to enact or establish laws. The manner in which it acquired this sense is easily conceivable.