LECT. XXVII Laws some times anctioned by nullities. 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 ipsam rem vel pecuniam quæ relicta est, sed aliud, pro pœná.' 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that is, no right arises; or the transaction is voidable, that is, a right arises, but the transaction is liable to be rescinded and the right annulled.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 The transaction may either be rescinded on an application made to that effect, or the nullity may be opposed to a demand founded on the transaction.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 The first conferred no right; the second conferred a right which might be rescinded or destroyed by some party interested in setting it aside. Ope exceptionis is an inadequate name, for the transaction might be rescinded, not only by exceptio, that is, a plea, but by applications analogous to an application to Chancery to set aside a voidable instrument, LECT. or an instrument obtained by fraud. XXVII punish In certain cases, sanctions consist in pains to be endured Vicarious by others, and are intended to act on us through sympathy. ment. 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 only 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. meanings and etymo logy of the word Sanc tion. I now advert to the various meanings of the word sanction. Various 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 LECT. XXVII 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. 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