Full download The Oxford Handbook of Criminal Process Darryl K Brown file pdf all chapter on 2024

The Oxford Handbook of Criminal
Process Darryl K Brown

Visit to download the full and correct content document:
https://ebookmass.com/product/the-oxford-handbook-of-criminal-process-darryl-k-bro
wn/
More products digital (pdf, epub, mobi) instant
download maybe you interests ...
Oxford Handbook of Ophthalmology Alastair K. O.

Denniston
https://ebookmass.com/product/oxford-handbook-of-ophthalmology-
alastair-k-o-denniston/
The Oxford Handbook of Evolutionary Psychology and

Romantic Relationships Justin K. Mogilski (Editor)
https://ebookmass.com/product/the-oxford-handbook-of-
evolutionary-psychology-and-romantic-relationships-justin-k-
mogilski-editor/
The Oxford Handbook of the History Phenomenology

(Oxford Handbooks)
https://ebookmass.com/product/the-oxford-handbook-of-the-history-
phenomenology-oxford-handbooks/
The Oxford Handbook of Daniel Defoe (Oxford Handbooks)

Seager
https://ebookmass.com/product/the-oxford-handbook-of-daniel-
defoe-oxford-handbooks-seager/
The Oxford Handbook of Religious Space Jeanne Halgren
Kilde
https://ebookmass.com/product/the-oxford-handbook-of-religious-
space-jeanne-halgren-kilde-2/
The Oxford Handbook of Polling and Survey Methods

(Oxford Handbooks)
https://ebookmass.com/product/the-oxford-handbook-of-polling-and-
survey-methods-oxford-handbooks/
The Oxford Handbook of Decadence Jane Desmarais
https://ebookmass.com/product/the-oxford-handbook-of-decadence-
jane-desmarais/
The Oxford Handbook of Pierre Bourdieu Unknown
https://ebookmass.com/product/the-oxford-handbook-of-pierre-
bourdieu-unknown/
The Oxford Handbook of Psychotherapy Ethics Trachsel
https://ebookmass.com/product/the-oxford-handbook-of-
psychotherapy-ethics-trachsel/
Copyright Page
Copyright Page
Edited by Darryl K. Brown, Jenia I. Turner, and Bettina Weisser
The Oxford Handbook of Criminal Process
Edited by Darryl K. Brown, Jenia Iontcheva Turner, and Bettina Weisser
Print Publication Date: Apr 2019 Subject: Law Online Publication Date: Feb 2019
(p. iv) Copyright Page
Oxford University Press is a department of the University of Oxford. It furthers the

University’s objective of excellence in research, scholarship, and education by pub
lishing worldwide. Oxford is a registered trade mark of Oxford University Press in the
UK and certain other countries.
Published in the United States of America by Oxford University Press
198 Madison Avenue, New York, NY 10016, United States of America.
© Oxford University Press
All rights reserved. No part of this publication may be reproduced, stored in a re
trieval system, or transmitted, in any form or by any means, without the prior permis
sion in writing of Oxford University Press, or as expressly permitted by law, by li
cense, or under terms agreed with the appropriate reproduction rights organization.
Inquiries concerning reproduction outside the scope of the above should be sent to
the Rights Department, Oxford University Press, at the address above.
You must not circulate this work in any other form

and you must impose this same condition on any acquirer.
Library of Congress Cataloging-in-Publication Data
Names: Brown, Darryl K., editor. | Turner, Jenia I., editor. | Weisser,
Bettina, editor.
Title: The Oxford handbook of criminal process/Darryl K. Brown, Jenia I.
Turner, Bettina Weisser.
Description: New York: Oxford University Press, 2019. | Includes
bibliographical references and index.
Page 1 of 2
Copyright Page
Identifiers: LCCN 2018027958| ISBN 9780190659837 ((hardback): alk. paper) |
ISBN 9780190659844 ((paperback): alk. paper)
Subjects: LCSH: Criminal procedure. | Criminal law. | Criminal justice,

Administration of. | Criminal procedure—European Union countries.
Classification: LCC K5401 .B76 2019 | DDC 345/.05—dc23 LC record available at
https://lccn.loc.gov/2018027958
Note to Readers
This publication is designed to provide accurate and authoritative information in re

gard to the subject matter covered. It is based upon sources believed to be accurate
and reliable and is intended to be current as of the time it was written. It is sold with
the understanding that the publisher is not engaged in rendering legal, accounting,
or other professional services. If legal advice or other expert assistance is required,
the services of a competent professional person should be sought. Also, to confirm
that the information has not been affected or changed by recent developments, tradi
tional legal research techniques should be used, including checking primary sources
where appropriate.
(Based on the Declaration of Principles jointly adopted by a Committee of the Ameri

can Bar Association and a Committee of Publishers and Associations.)
You may order this or any other Oxford University Press publication by visiting the
Oxford University Press website at www.oup.com.
1 3 5 7 9 8 6 4 2
Printed by Sheridan Books, Inc., United States of America
Page 2 of 2
Notes on the Contributors

Edited by Darryl K. Brown, Jenia I. Turner, and Bettina Weisser
Print Publication Date: Apr 2019 Subject: Law Online Publication Date: Feb 2019
(p. x) (p. xi) Notes on the Contributors
Lorena Bachmaier,
Professor of Law, Universidad Complutense, Madrid
Martin Böse,
Professor of Criminal Law, Criminal Procedure, International and European Crimi

nal Law, Director of the Institute of Criminal Law, University of Bonn
Darryl K. Brown,
O.M. Vicars Professor of Law and Barron F. Black Research Professor, University of
Virginia School of Law
Michele Caianiello,
Professor and Dean of the Department of Legal Studies, University of Bologna
Page 1 of 9
Ed Cape,
Emeritus Professor of Criminal Law and Practice, University of the West of England,
Bristol
Meike M. de Boer,
Former Trainee, Netherlands Institute for the Study of Crime and Law Enforcement
David Dixon,
Professor of Law, University of New South Wales
Markus D. Dubber,
Professor of Law and Director, Centre for Ethics, University of Toronto
Gary Edmond,
Professor of Law at the University of New South Wales and Research Professor
(fractional) at Northumbria University
Helen Fenwick,
Professor of Law and Director of the Human Rights Centre, Durham University
Page 2 of 9
Richard D. Friedman,
Alene and Allan F. Smith Professor of Law, University of Michigan
Brandon Garrett,
L. Neil Williams, Jr., Professor of Law, Duke University School of Law
Gwladys Gilliéron,
Associate Professor in Criminal Law and Criminology, University of Zurich
Sabine Gless,
Professor of Criminal Law and Criminal Procedure, University of Basel
Johanna Göhler,
Research Associate, Institute for Foreign and International Criminal Law, University
of Cologne
Elisabetta Grande,
Professor of Comparative Law, Università degli Studi del Piemonte Orientale
Page 3 of 9
(p. xii) Valerie P. Hans,
Professor of Law, Cornell University
Rebecca K. Helm,
Lecturer in Law, University of Exeter Law School
Jacqueline S. Hodgson,
Professor of Law, University of Warwick
Tatjana Hörnle,
Professor of Criminal Law, Legal Philosophy and Comparative Criminal Law, Hum
boldt University, Berlin
John Jackson,
Professor of Comparative Criminal Law and Procedure, University of Nottingham,

School of Law
Maria Kaiafa-Gbandi,
Professor of Criminal Law, Director of the Research Institute for Transparency, Cor
ruption and Financial Crime, Aristotle University of Thessaloniki
Page 4 of 9
André Klip,
Professor of Criminal Law, Criminal Procedure and the Transnational Aspects of

Criminal Law, Maastricht University
Ho Hock Lai,
Amaladass Professor of Criminal Justice, National University of Singapore
Katalin Ligeti,
Professor of Law, University of Luxembourg
Richard L. Lippke,
Professor, Department of Criminal Justice, Indiana University
Marijke Malsch,
Senior Researcher, Netherlands Institute for the Study of Crime and Law Enforce
ment; Lecturer, VU University Amsterdam
Marie Manikis,
Assistant Professor of Law, McGill University
Page 5 of 9
Nicola McGarrity,
Senior Lecturer and Director of the Terrorism Law Reform Project, University of
New South Wales
Bernadette McSherry,
Professor of Law and Foundation Director, Melbourne Social Equity Institute, Uni
versity of Melbourne
Grischa Merkel,
Professor of Law and Ethics, University of Basel
Valsamis Mitsilegas,
Professor of European Criminal Law and Global Security and Deputy Dean for Glob
al Engagement (Europe), Queen Mary University of London
Yu Mou,
Lecturer in Criminal Law, SOAS, University of London
Neil Richards,
Thomas & Karole Green Professor of Law and Director of the Institute for Policy in
Medicine and Law, Washington University
Page 6 of 9
Kent Roach,
Professor of Law and Prichard Wilson Chair in Law and Public Policy, University of
Toronto
Paul Roberts,
Professor of Criminal Jurisprudence, University of Nottingham, School of Law
Jacqueline E. Ross,
Prentice H. Marshall Professor of Law, University of Illinois College of Law
(p. xiii) Helmut Satzger,
Professor of Law, Director of the Chair of German, European and International

Criminal Law and Criminal Procedure as well as Business Criminal Law, Ludwig-
Maximilians-Universität, Munich
Carl-Friedrich Stuckenberg,
Professor of German and International Criminal Law and Criminal Procedure, Com
parative Criminal Law, and Criminal Law History, University of Bonn
Elisavet Symeonidou-Kastanidou,
Page 7 of 9
Professor of Criminal Law, Dean of the Faculty of Law, Aristotle University of Thes
saloniki
Stephen C. Thaman,
Professor of Law, Emeritus, Saint Louis University
Juliette Tricot,
Centre de Droit Pénal et de Criminologie, University of Paris Nanterre
Jenia I. Turner,
Amy Abboud Ware Centennial Professor in Criminal Law, Dedman School of Law,
Southern Methodist University
Mary Vogel,
Professor of Law, Chair in Criminal Law, University of Manchester
Joëlle Vuille,
Senior Researcher, School of Criminal Justice, University of Lausanne
Michael Washington,
Page 8 of 9
Fellow, Washington University Institute for Policy in Medicine and Law
Thomas Weigend,
Professor of Criminal Law (ret.), University of Cologne
Bettina Weisser,
Professor of Criminal Law, Director of the Institute for Foreign and International
Criminal Law, University of Cologne
Frank Zimmermann,
Postdoctoral Research Fellow, Ludwig-Maximilians-Universität, Munich
Page 9 of 9
Criminal Process in the Dual Penal State: A Comparative-Historical Analysis
Criminal Process in the Dual Penal State: A Compara

tive-Historical Analysis
Markus D. Dubber
Print Publication Date: Apr 2019 Subject: Law, Criminal Law

Online Publication Date: Feb 2019 DOI: 10.1093/oxfordhb/9780190659837.013.1
Abstract and Keywords
This chapter uses comparative-historical analysis to discuss criminal process in the con
text of penal power in the modern liberal state as penal law and penal police—the dual
penal state. Focusing on Germany and the United States, it considers two ways of think
ing about criminal process, from parallel perspectives that correspond to two modes of
state governance: law and police. The first is characteristic of the law state (Rechtsstaat)
and the second, of the police state (Polizeistaat). The emphasis is on the criminal process
that is consistent with the pursuit of the ideal of liberal law to which states that regard
themselves—or wish to be regarded by others—as participants in the modern liberal le
gal-political project are committed.
Keywords: comparative-historical analysis, criminal process, penal power, liberal state, penal law, penal police,
dual penal state, law state, police state, liberal law, police power
I. Introduction
*
THIS chapter is about a way of thinking about criminal process, with bits and pieces of
criminal process making an appearance for illustrative purposes. Actually, it’s about two
ways of thinking about criminal process, from parallel perspectives that correspond to
two modes of state governance, law and police, characteristic of the law state
(Rechtsstaat) and the police state (Polizeistaat), respectively. Using comparative-histori
cal analysis, this chapter locates the study of criminal process within the two-track
project of critical analysis of penal power in the modern liberal state as penal law and pe
nal police: the dual penal state. Illustrations include lay participation, plea bargaining,
the legality principle, habeas corpus, and possession offenses, among others.
Comparative-historical analysis plays a key role in this conception of the study of criminal
process, in both the construction and genealogy of the dual penal state framework and in
its application to various aspects of criminal process across various jurisdictions. The
scope of the inquiry into criminal process presented here is systemic, rather than jurisdic
Page 1 of 24
tion-specific. The conception of the dual penal state, and the distinction between law and
police as two modes of state governance more generally, is associated with the historical
moment of the launch of the modern liberal legal-political project. The study of the crimi
nal process considered here, therefore, is more specifically a study of the modern liberal
criminal process, that is, the criminal process that is consistent (p. 4) with the pursuit of
the ideal of liberal law to which states that regard themselves—or wish to be regarded by
others—as participants in the modern liberal legal-political project are committed.
The comparative analysis applied in this chapter, and in the conception of the study of
criminal process it considers, therefore is instrumental in the sense that it facilitates the
critical analysis of criminal process in a particular legal-political system, or project, that
appears in various forms in a cluster of states, or jurisdictions. The point of the compara
tive analysis is not only to illuminate certain features of a given jurisdiction, or several ju
risdictions, or to assess the extent to which jurisdictions have implemented their shared
ideal of liberal law, but ultimately also to critically assess the defining ideal itself.
This comparative analysis, operating at a fairly high level of abstraction, will focus on the
—literally—systemic features of various penal regimes, rather than on specific doctrines.
It will also rely on familiar stand-ins for “common law” and “civil law” countries: the Unit
ed States and Germany.1 It doesn’t proceed from the assumption that the distinction be
tween common law and civil law countries is useful (never mind “real” in some sense) and
therefore isn’t concerned with deviations in a given jurisdiction from the supposed norm
of one or the other. If a meaningful distinction should emerge between the responses by
two sets of jurisdictions to the challenge of liberal law in general, and liberal penal law in
particular, and this distinction tracks some version of the traditional distinction between
“common law” and “civil law” countries, that would be interesting. But it would not affect
dual penal state analysis one way or another.
The key feature of dual penal state analysis is the notion that the moment of the Enlight
enment (however long and whenever it is thought to have occurred) did not simply mark
the end of one mode of state governance—police—and the beginning of another—law.
Rather than the Rechtsstaat replacing the Polizeistaat, both legal and policial aspects are
taken to have persisted in state governance, and in state penal governance in particular,
as modern manifestations of the age-old tension and interplay between autonomy and
heteronomy, rooted in the beginnings of Western legal-political history in ancient Athens.
This means that the critical analysis of criminal process in light of the familiar commit
ments of the modern, autonomy-based, conception of liberal law is only one side, and one
half, of the story. The other side is the parallel analysis of criminal process from the per
spective not of law, but of police, as a continuing manifestation of the state’s police pow
er, and its penal power in particular. This policial analysis was no more rendered obsolete
than the law state replaced the police state in one fell swoop. To regard the place of penal
police in the modern dual penal state as an anachronistic remnant on the exceptional
margins of a penal law state progressively perfected over the last two centuries (or more)
Page 2 of 24
is to fail to appreciate the significance of the relation and connection between law and po
lice as constituent tensions.
The underlying tension, of autonomy and heteronomy, is familiar throughout the history
of the Western legal-political project. The launch of the modern liberal project, however,
exposed and sharpened it, by defining itself as the radical rejection of one of its modes
(p. 5) by the other, of police by law, and of the police state by the law state. Once the ca
pacity for autonomy is universalized from an elite characteristic of householder-citizens

to the distinctive feature of all persons, the tension can no longer be accommodated, or
hidden, by distinguishing categorically between governor and governed, subject and ob
ject of government and between a sphere of heteronomy (the household, oikos, familia)
and of autonomy (the city state, agora, forum). The police state could not survive the en
lightenment because the enlightenment was defined in contradistinction to it. Penal po
lice was impossible; it could not exist, because it was essentially incompatible with the
law state. Dual penal state analysis, by contrast, insists on the persistence of the tension
between autonomy and heteronomy and between law and police, and it rejects simplistic,
self-serving yet ultimately self-defeating, tendencies to condemn the police power, includ
ing notably in the penal realm, to the dustbin of antiquarian historiography.
Insofar as the legitimacy of the modern liberal state is grounded in the autonomy of its
constituent subject-objects as persons (rather than as householders, say), the critical
analysis of the state’s penal power goes to the heart of the paradox of liberal state power:
the threat, imposition, and infliction of penal violence intentionally violates the autonomy
of the very persons whose autonomy undergirds its legitimacy. (Punishment is prima facie
crime.) If the state’s penal power can be legitimated in terms of the Grundnorm of auton
omy, then the legitimacy of the state’s power in general appears possible. At the same
time, if the state’s penal power cannot be legitimated, then what’s the point of legitimat
ing other, less intrusive, kinds of state action?
The critical analysis of criminal process forms part of the critical analysis of the state’s
penal regime. That much is clear. Less clear is how important that part turns to be. The
answer to this question will depend not only on how one defines “criminal process” and,
therefore, what a critical analysis of “criminal process” would encompass but also, per
haps less obviously yet not unrelatedly, who is asking (or answering) the question.
We’ll take up the question of the place of the critical analysis of criminal process in the
critical analysis of the dual penal state in Sections II and III, focused on Germany and the
United States, respectively. But first, in Section I, we’ll start out with an overview of the
analytic framework: the conception of a dual penal state based on the historically situated
distinction between law and police as modern modes of state governance in general, and
of state penal governance in particular.
Page 3 of 24
II. Dual Penal State

Dual penal state analysis is one aspect of dual state analysis, which in turns illustrates
critical analysis of law, a contextual interdisciplinary approach to legal studies. Underly
ing, and driving, these various scholarly enterprises is the distinction between law and
police as modes of modern state governance.2
Critical analysis of law, and dual penal state analysis as an application, attempts to
(p. 6)
overcome unproductive categorical distinctions between traditional (doctrinal, intradisci

plinary) and “modern” (interdisciplinary), “common law,” and “civil law” conceptions of
legal studies in general, and criminal law in particular. Ultimately, critical analysis of law
pragmatically pursues the aim of transforming legal scholarship into a communal,
transnational enterprise of engaged scholarship, that marshals the collective competence
of scholars trained in law to tackle the pressing issue of vigilantly observing and cri
tiquing the exercise of state power—and state penal power—through law in a modern lib
eral democratic state.
Critical analysis of law subjects the exercise of state power through law to internal and
external critique. Internal critique tests the comprehensiveness, coherence, and consis
tency of legal norms, much as traditional doctrinalism has done for decades (though more
flexibly and contextually). External critique, more important and interesting, leaves the
positivistic constraints of traditional doctrinalism behind and critiques state action in the
name of law in light of normative commitments associated with the modern liberal con
ception of law.
Rather than treat these commitments as if they were handed down ready-made and fully
formed by some deus ex machina or other, critical analysis of law regards them as histori
cally and contextually situated. In particular, it views the modern conception of law and
its attendant normative commitments as having arisen, or rather having been actively
constructed, in contradistinction to an alternative mode of governance. State power as
law was legitimate, just; state power as police was alegitimate, ajust. The absence of le
gal norms did not imply the absence of all norms. But policial norms did not affect the le
gitimacy or justice of state power through police; instead, they were framed as advisory
maxims of prudence, wisdom, efficiency, rationality, addressed to sovereign state house
holders who might decide to allow their unlimited discretion to be guided by them. Viola
tions of principles of law (or “legality”) threatened the state’s legitimacy; deviations from
self-adopted and self-policed maxims of police did not, and could not, because the idea of
a critique of the legitimacy of the sovereign state householder was inapposite.
The very notion of a critical analysis of state power was regarded, and presented, as nov
el. Since the seventeenth century, a police science had developed that generated an ever-
broadening stream of analysis and advice on the ever-more complex tasks of governing
the state household, ranging from Machiavelli’s proto-policial ruminations on princely
statecraft to the tomes and compendiums on “good police” produced by eighteenth-centu
ry Polizeiwissenschaft and “political oeconomy” in Germany and France (and, by Adam
Page 4 of 24
Smith and Patrick Colquhoun, in Scotland and London). But none of these texts con
cerned itself with questions of “legitimacy,” whatever this would have meant. They were
manuals on good governance, or rather good housekeeping, contributions to the long-
standing genre of oikonomia and Hausväterliteratur on the grand, public scale of the
state.3
To appreciate the historical context, and the elements of continuity and disruption,
(p. 7)
of the construction, and appearance, of the modern notion of law, it helps to assume the
perspective of the longue durée. Law and police, and law in contradistinction to police as
an alternative mode of governance, is the modern manifestation of the basic distinction
between autonomy and heteronomy, or self- and other-government. This is the continuity.
The autonomy of modern law, however, is not the autonomy of the few (the householder/
governor/subject) but the autonomy of all (persons as such). This is the disruption. With
the discovery, or pronouncement (or invention4), of the autonomy of the person as such,
with autonomy now serving as the universal characteristic (or, more precisely, the capaci
ty) shared by all rather than the marker of distinction that categorically separated the
few (householders) from the rest (household), the traditional accommodation between au
tonomy and heteronomy collapsed. Autonomy had turned from making government
patently possible to making it facially illegitimate.
The modern concept of law, in this view, appears as the response to the Enlightenment’s
challenge of universal-personal autonomy in the political sphere. The legitimacy of mod
ern state power through law turns on its compliance with the Grundnorm of autonomy; le
gitimate government is self-government, all the way down.
Just what this ideal means, and how one might go about implementing it is anything but
obvious, of course. In fact, the history of the legal-political project in modern Western lib
eral democratic states can be seen as a history of the struggle to answer these questions.
But this is only one, if common, way of telling the story. Regarding modern Western legal-
political history as a series of progressive attempts to better implement the vision of lib
eral law, and autonomous government, risks viewing it through a narrow, Whiggish, lens
that focuses on only one mode of state governance, law, as if the declaration that “Law is
King” (Thomas Paine) swept away centuries, or millennia, of quasi-patriarchal gover
nance on the household model. This view is Whiggish even if one rejects its crude and
most familiarly suspect version, which sees constant progress toward liberal perfection.
The exclusive focus on law is Whiggish, no matter in what version, insofar as it takes the
launch of the modern legal-political project to mark the beginning of a shift from one ana
lytic framework to another, from police to law, rather than the evolution of a two-track
framework that reflects the persistence of the long-standing tension between autonomy
and heteronomy, now modernized and sharpened to the point of facial illegitimacy in the
tension between law and police. The modern liberal state is not defined by one mode of
governance (law) with exceptions defined only as such; instead, the apparent exceptions
in turn reflect an alternative mode of governance (police) that stands in uncomfortable
Page 5 of 24
tension with the “new” mode of governance (law) that is presented not only as dominant
but as exclusive, as the (only) norm.
Dual penal state analysis, as the most urgent instance of dual state analysis, then, pur
sues a parallel analysis of state power from both perspectives, law and police. This means
at least two things. First, each mode of governance, and its attendant mode of analysis, is
(p. 8) defined in terms of the other and, ultimately, in terms of the tension between auton
omy and heteronomy. Law and police are not two concepts that “exist” independently of
one another and might happen, occasionally, to overlap. They are inextricably linked,
through the “modern” historical moment of their emergence (law state versus police
state) and their longue durée grounding in the interplay between autonomy and heterono
my in classical Athens (agora versus oikos).
Second, dual penal state analysis always considers the possibility that an apparent excep
tion to the norm of a supposedly exclusive (or merely dominant) mode of governance may
in fact reflect another mode of governance altogether. Instead of continuously recording
the inconsistency of a given state norm, practice, or institution with some legal “princi
ple” or other, for instance, dual penal state analysis instead asks the preliminary question
of whether that critique is simply inapposite because the state action in question is con
ceived as a matter of police, rather than as a matter of law. It is beside the point to note,
again and again, that, say, criminal liability for possession flies in the face of fundamental
principles of criminal law (actus reus, most obviously) if possession offenses perform a
key role in a comprehensive penal police regime designed to permit state officials to exer
cise their essentially unlimited and unreviewable discretion to identify and incapacitate
“offenders”—individuals or groups who give offense in the specific sense of disturbing the
king’s, or later on the public’s, peace (in the lingo of English or American criminal law) or
are “disturbers” (Störer) who “compromise public safety and order” (in the lingo of Ger
man “police law”).5
It’s important here to recognize that dual penal state analysis is just that, a critical analy
sis of the state’s penal power as a whole from the perspectives of law and police. The en
tire penal regime is subject to this two-track analysis in all of its nooks and crannies,
down to the level of specific doctrinal features (such as the crime of possession). Contrast
this with an attempt to identify specific legal or policial aspects or elements that add up
to a legal-policial checkerboard regime. While it is certainly possible, and in fact likely,
that individual features of the penal regime may align more easily with one mode of penal
governance than another (possession, again, provides an example), it is important not to
lose sight of the fundamental nature of the tension between law and police. Identifying
and then eliminating particular “policial remnants” within a penal law regime will not re
solve the tension or eliminate police as a type of penal governmentality any more than an
nouncing that the birth of the law state killed off the police state.
The persistence of policial governmentality and therefore of the fundamental tension be
tween law and police as modes of governance has frequently been suppressed, or denied,
rather than acknowledged and addressed. In Germany, and other European countries, the
Page 6 of 24
once sprawling and eventually all-encompassing field of police science vanished over the
course of the nineteenth century. Rather than analyzing the operation of the state as an
oeconomic household manifesting its police power, attention shifted to the study of the
supposed legal limits of that awesome sovereign power in a brand new (p. 9) legal disci
pline: administrative law (including, most explicitly, in Germany, the subdiscipline of “po
lice law”). Police scientists turned into administrative law scholars, if not overnight, then
from one tome to the next;6 the legalization of police was achieved as soon as it was
named, never mind that the new courts of administrative law, whether or not they were
considered part of the administrative apparatus, could at best occasionally police the
margins of the vast administrative regime of the modern state, which continued to grow
in scope and complexity unconcerned with, if not aided by, the rebranding of the state
from police state to law state. The administrative state continued to be defined by discre
tion through and through, with supposed law constraints coming in the shape of formal
guidelines, rarely enforced and, if so, always with an eye toward retaining the essential
discretion at the core of the administrative enterprise. In the end, it might appear that
rather than law legalizing police, police policified law: administrative “law” did not place
law-appropriate and legitimacy-based constraints on administrative police, but was inte
grated into it, and appropriated by it.
Across the Atlantic, there was no American police science; as a result, there was nothing
to dismantle or rebrand. In fact, the notion of police power (if not police science) played
an explicitly central role in the American federalist compromise. Defined by its indefin
ability, utterly discretionary and all-encompassing, it was the governmental manifestation
of sovereignty. To be sovereign meant to have the power to police, the “power to govern
men and things within the limits of its dominion.”7 To say that the states retained their
sovereignty therefore was to say that they retained the power to police. At the same time,
and for the same reason, the federal “government” did not, and could never, have that
flexibly all-devouring oeconomic power that would have reduced the states to members of
the national state household under the discretionary power of a national state household
er, a presidential patriarch. Originary state sovereignty would have become delegated
sovereignty, the limits of which drawn and then policed at the discretion of the national
state householder (ultra vires).
And yet, while it served the federalist compromise (at least on paper, if not in fact, as the
federal government soon went about knitting together an all-encompassing de facto po
lice power from its various “enumerated” powers) to marvel at, and insist on, the limitless
awesomeness of state sovereign power within the new federalist structure, this very fea
ture of the police power also brought into stark relief its apparent incompatibility with
the presumably even more awesome, though strictly limited, law power in a country
where the Law is King.
This incompatibility, however, was merely apparent. For it turned out that the police pow
er and the law power rested on radically different conceptions of the objects of state pow
er, and their relation to its subjects. The incompatibility of law and police is, at bottom,
the incompatibility of autonomy and heteronomy. Autonomy and heteronomy are incom
Page 7 of 24
patible only if the distinction between governor/subject and governed/object has (p. 10)
been abandoned. If, however, there are objects of governance who lack the capacity for
autonomy and therefore are regarded as mere objects, rather than also as potential sub
jects, of state power, the tension between autonomy and heteronomy can be managed as
it had been for millennia, through the logic of the relationship between householder and
household, between governor and governed, according to entirely discretionary pruden
tial maxims of good governance.
The only question in this accommodation was where the distinction between subject and
object should be drawn, who would end up on which side of the sovereign divide. Initially,
women, children, slaves, and the poor fell on the object side of the divide, along with—for
our purposes particularly interesting—criminal offenders. It has long been American
blackletter law that the state’s penal power is an instance of the police power. This
meant, as we saw, that criminal law was—and remains—primarily a matter of state law,
with federal law treated as a narrow specialized supplement (a fiction increasingly diffi
cult to maintain as federal criminal law dramatically expanded). The power to punish was
seen as intimately connected to the very idea of sovereignty; if a sovereign must have any
power, it must be the power to punish those who give offense, by challenging his sover
eignty or, since the Middle Ages, by breaking his (household) peace.
While the supposed “localness” (i.e., stateness) of the police power within the federalist
arrangement got—and continues to get—the bulk of the attention, its intimate connection
to the sovereignty of the householder, which reaches back through the Middle Ages to the
beginnings of Western political history in classical Greece, captures its heteronomous
governmentality, a mode of governance that connects the Athenian oikos to the Roman fa
milia to the medieval mund to the early modern King’s peace to the early modern state’s
“good police” (gute Policey) and eventually “public safety and order.”
The criminal offender remains outside the scope of the modern legal-political project as
sociated with the liberal ideal of law as the mode of state governance that rejects the rad
ical distinction between governor and governed and instead turns on the radical identity
of all persons as potential subject-objects of autonomous government. Criminal offenders
personify the object of disciplinary power that threatens the subject’s sovereignty. They
are the paradigmatic object of police power and, as such, beyond the scope of law power.
Their crime is a police offense: the status of being a threat to sovereign power, as op
posed to the act of violating the autonomy of another person, say. Disciplining them, at
the discretion of the householder-sovereign, reasserts the householder-sovereign’s au
thority, and in this way reaffirms the radical distinction between governor and governed,
householder and household. By contrast, in a liberal law-based conception of crime, the
paradigmatic crime would be interpersonal, rather than anti-statal, and punishment
(rather than hierarchical discipline) would reassert the identity of victim and offender,
and ultimately—through the construction of self-government and -punishment—also the
identity of punisher and offender.
Page 8 of 24
Another random document with
no related content on Scribd:
“Brother Frank, I must tell you, and when I do, you will not believe
me—It was not our father whom we both saw this morning.”
“It was no other whom I saw. What do you mean? Do you suppose
that I do not know my own father?”
“I tell you it was not, and could not be. I had an express from him
yesterday. He is two hundred miles from this, and cannot be in
Scotland sooner than three weeks hence.”
“You astonish me, Thomas. This is beyond human
comprehension.”
“It is true—that I avouch, and the certainty of it has sickened me at
heart. You must be aware that he came not home last night, and that
his horse and retinue have not arrived.”
“He was not at home, it is true, nor have his horse and retinue
arrived in Scotland. Still there is no denying that our father is here,
and that it was he who spoke to and admonished me.”
“I tell you it is impossible. A spirit has spoken to us in our father’s
likeness, for he is not, and cannot be, in Scotland at this time. My
faculties are altogether confounded by the event, not being able to
calculate on the qualities or condition of our monitor. An evil spirit it
certainly could not be, for all its admonitions pointed to good. I
sorely dread, Francis, that our father is no more: that there has been
another engagement, that he has lost his life, and that his soul has
been lingering around his family before taking its final leave of this
sphere. I believe that our father is dead; and for my part I am so sick
at heart, that my nerves are all unstrung. Pray, do you take horse and
post off for Salop, from whence his commission to me yesterday was
dated, and see what hath happened to our revered father.”
“I cannot, for my life, give credit to this, brother, or that it was any
other being but my father himself who rebuked me. Pray allow me to
tarry another day at least before I set out. Perhaps our father may
appear in the neighbourhood, and may be concealing himself for
some secret purpose. Did you tell him of our quarrel?”
“No. He never asked me concerning it, but charged me sharply
with my intent on the first word, and adjured me, by my regard for
his blessing, and my hope of heaven, to desist from my purpose.”
“Then he knew it all intuitively; for when I first went in view of the
spot appointed for our meeting, I perceived him walking sharply to
and fro, wrapped in his military cloak. He never so much as deigned
to look at me, till I came close to his side, and thinking it was
yourself, I fell to upbraiding him, and desired him to draw. He then
threw off his cloak, drew his sword, and, telling me he came in your
place, dared me to the encounter. But he knew all the grounds of our
quarrel minutely, and laid the blame on me. I own I am a little
puzzled to reconcile circumstances, but am convinced my father is
near at hand. I heard his words, and saw his eyes flashing anger and
indignation. Unfortunately, I did not touch him, which would have
put an end to all doubts; for he did not present the hand of
reconciliation to me, as I expected he would have done, on my
yielding implicitly to all his injunctions.”
The two brothers then parted, with protestations of mutual
forbearance in all time coming, and with an understanding, as that
was the morning of Saturday, that if their father, or some word of
him, did not reach home before the next evening, the Tutor of
Cassway was to take horse for the county of Salop early on Monday
morning.
Thomas, being thus once more left to himself, could do nothing
but toss and tumble in his bed, and reflect on the extraordinary
occurrence of that morning; and, after many troubled cogitations, it
at length occurred to his recollection what Mrs Jane Jerdan had said
to him:—“Do it, then. Do it with a vengeance!—But remember this,
that wherever ye set the place of combat, be it in hill or dale, deep
linn or moss hag, I shall have a thirdsman there to encourage you on.
I shall give you a meeting you little wot of.”
If he was confounded before, he was ten times more so at the
remembrance of these words of most ominous import.
At the time he totally disregarded them, taking them for mere
rhodomontade; but now the idea was to him terrible, that his father’s
spirit, like the prophet’s of old, should have been conjured up by
witchcraft; and then again he bethought himself that no witch would
have employed her power to prevent evil. In the end he knew not
what to think, and so, taking the hammer from its rest, he gave three
raps on the pipe drum (for there were no bells in the towers of those
days), and up came John Burgess, Thomas Beattie’s henchman,
huntsman, and groom of the chambers, one who had been attached
to the family for fifty years, and he says, in his slow west-border
tongue, “How’s thou now, callan’?—Is thou ony better-lins? There
has been tway stags seen in the Bloodhope-Linns this morning
already.”
“Ay, and there has been something else seen, John, that lies nearer
to my heart to-day.” John looked at his master with an inquisitive
eye and quivering lip, but said nothing. The latter went on: “I am
very unwell to-day, John, and cannot tell what is the matter with me.
I think I am bewitched.”
“It’s very like thou is, callan’. I pits nae doubt on’t at a’.”
“Is there anybody in this moor district whom you ever heard
blamed for the horrible crime of witchcraft?”
“Ay, that there is; mair than ane or tway. There’s our neighbour,
Lucky Jerdan, for instance, and her niece Nell,—the warst o’ the pair,
I doubt.” John said this with a sly stupid leer, for he had admitted the
old lady to an audience with his master the day before, and had eyed
him afterwards bending his course towards Drumfielding.
“John, I am not disposed to jest at this time; for I am disturbed in
mind, and very ill. Tell me, in reality, did you ever hear Mrs Jane
Jerdan accused of being a witch?”
“Why, look thee, master, I dare nae say she’s a witch; for Lucky has
mony good points in her character. But it’s weel kenned she has mair
power nor her ain, for she can stop a’ the plews in Eskdale wi’ a wave
o’ her hand, and can raise the dead out o’ their graves, just as a
matter of coorse.”
“That, John, is an extraordinary power indeed. But did you never
hear of her sending any living men to their graves? For as that is
rather the danger that hangs over me, I wish you would take a ride
over and desire Mrs Jane to come and see me. Tell her I am ill, and
request her to come and see me.”
“I shall do that, callan’. But are thou sure it is the auld witch I’m to
bring? For it strikes me the young ane maybe has done the deed; and
if sae, she is the fittest to effect the cure. But I shall bring the auld
ane.—Dinna flee intil a rage, for I shall bring the auld ane; though,
gude forgie me! it is unco like bringing the houdie.”
Away went John Burgess to Drumfielding; but Mrs Jane would not
move for all his entreaties. She sent back word to his master, to “rise
out o’ his bed, for he wad be waur if ony thing ailed him; and if he
had aught to say to auld Jane Jerdan, she would be ready to hear it at
hame, though he behoved to remember that it wasna ilka subject
under the sun that she could thole to be questioned anent.”
With this answer John was forced to return, and there being no
accounts of old Beattie having been seen in Scotland, the young men
remained all the Sabbath-day in the utmost consternation at the
apparition of their father they had seen, and the appalling rebuke
they had received from it. The most incredulous mind could scarce
doubt that they had had communion with a supernatural being; and
not being able to draw any other conclusion themselves, they became
persuaded that their father was dead; and accordingly, both prepared
for setting out early on Monday morning toward the county of Salop,
from whence they had last heard of him.
But just as they were ready to set out, when their spurs were
buckled on and their horses bridled, Andrew Johnston, their father’s
confidential servant, arrived from the place to which they were
bound. He had ridden night and day, never once stinting the light
gallop, as he said, and had changed his horse seven times. He
appeared as if his ideas were in a state of derangement and
confusion; and when he saw his young masters standing together,
and ready-mounted for a journey, he stared at them as if he scarcely
believed his own senses. They of course asked immediately about the
cause of his express; but his answers were equivocal, and he
appeared not to be able to assign any motive. They asked him
concerning their father, and if anything extraordinary had happened
to him. He would not say either that there had, or that there had not;
but inquired, in his turn, if nothing extraordinary had happened with
them at home. They looked to one another, and returned him no
answer; but at length the youngest said, “Why, Andrew, you profess
to have ridden express for the distance of two hundred miles; now
you surely must have some guess for what purpose you have done
this? Say, then, at once, what your message is: Is our father alive?”
“Ye—es; I think he is.”
“You think he is? Are you uncertain, then?”
“I am certain he is not dead,—at least, was not when I left him. But
—hum—certainly there has a change taken place. Hark ye, masters—
can a man be said to be in life when he is out of himself?”
“Why, man, keep us not in this thrilling suspense. Is our father
well?”
“No—not quite well. I am sorry to say, honest gentlemen, that he is
not. But the truth is, my masters, now that I see you well and hearty,
and about to take a journey in company, I begin to suspect that I
have been posted all this way on a fool’s errand; and not another
syllable will I speak on the subject, till I have some refreshment, and
if you still insist on hearing a ridiculous story, you will hear it then.”
When the matter of the refreshment had been got over to Andrew’s
full satisfaction, he began as follows:—
“Why, faith, you see, my masters, it is not easy to say my errand to
you, for in fact I have none. Therefore, all that I can do is to tell you a
story—a most ridiculous one it is, as ever sent a poor fellow out on
the gallop for the matter of two hundred miles or so. On the morning
before last, right early, little Isaac, the page, comes to me, and he
says,—‘Johnston, thou must go and visit master. He’s bad.’”
“Bad!” says I, “Whatever way is he bad?”
“‘Why,’ says he, ‘he’s so far ill as he’s not well, and desires to see
you without one moment’s delay. He’s in fine taking, and that you’ll
find; but what for do I stand here? Lord, I never got such a fright.
Why, Johnston, does thou know that master hath lost himself?’
“‘How lost himself, rabbit?’ says I; ‘speak plain out, else I’ll have
thee lug-hauled, thou dwarf!’ for my blood rose at the imp, for
fooling at any mishap of my master’s. But my choler only made him
worse, for there is not a greater diel’s-buckie in all the Five Dales.
“‘Why, man, it is true that I said,’ quoth he, laughing; ‘the old gurly
squire hath lost himself; and it will be grand sport to see thee going
calling him at all the stane-crosses in the kingdom, in this here way.
—Ho, yes! and a two times ho, yes! and a three times ho, yes! Did
anybody no see the better half of my master, Laird of the twa
Cassway’s, Bloodhope, and Pentland, which was amissing overnight,
and is supposed to have gone a-woolgathering? If anybody hath seen
that better part of my master, whilk contains as much wit as a man
could drive on a hurlbarrow, let them restore it to me, Andrew
Johnston, piper, trumpeter, whacker, and wheedler, to the same
great and noble squire; and high shall be his reward. Ho, yes!’
“‘The deuce restore thee to thy right mind!’ said I, knocking him
down, and leaving him sprawling in the kennel, and then hasted to
my master, whom I found feverish, restless, and raving, and yet with
an earnestness in his demeanour that stunned and terrified me. He
seized my hand in both his, which were burning like fire, and gave
me such a look of despair as I shall never forget. ‘Johnston, I am ill,’
said he, ‘grievously ill, and know not what is to become of me. Every
nerve in my body is in a burning heat, and my soul is as it were torn
to fritters with amazement. Johnston, as sure as you are in the body,
something most deplorable hath happened to them.’
“‘Yes, as sure as I am in the body, there has, master,’ says I. ‘But I’ll
have you bled and doctored in style, and you shall soon be as sound
as a roach,’ says I, ‘for a gentleman must not lose heart altogether for
a little fire-raising in his outworks, if it does not reach the citadel,’
says I to him. But he cut me short by shaking his head and flinging
my hand from him.
“‘A truce with your talking,’ says he. ‘That which hath befallen me
is as much above your comprehension as the sun is above the earth,
and never will be comprehended by mortal man; but I must inform
you of it, as I have no other means of gaining the intelligence I yearn
for, and which I am incapable of gaining personally. Johnston, there
never was a mortal man suffered what I have suffered since
midnight. I believe I have had doings with hell; for I have been
disembodied, and embodied again, and the intensity of my tortures
has been unparalleled.—I was at home this morning at daybreak.’
“‘At home at Cassway!’ says I. ‘I am sorry to hear you say so,
master, because you know, or should know, that the thing is
impossible, you being in the ancient town of Shrewsbury on the
king’s business.’
“‘I was at home in very deed, Andrew,’ returned he; ‘but whether in
the body or out of the body, I cannot tell—the Lord only knoweth.
But there I was in this guise, and with this heart and all its feelings
within me, where I saw scenes, heard words, and spoke others, which
I will here relate to you. I had finished my despatches last night by
midnight, and was sitting musing on the hard fate and improvidence
of my sovereign master, when, ere ever I was aware, a neighbour of
ours, Mrs Jane Jerdan, of Drumfielding, a mysterious character, with
whom I have had some strange doings in my time, came suddenly
into the chamber, and stood before me. I accosted her with doubt
and terror, asking what had brought her so far from home.’
“‘You are not so far from home as you imagine,’ said she; ‘and it is
fortunate for some that it is so. Your two sons have quarrelled about
the possession of niece Ellen, and though the eldest is blameless of
the quarrel, yet has he been forced into it, and they are engaged to
fight at daybreak at the Crook of Glendearg. There they will assuredly
fall by each other’s hands, if you interpose not; for there is no other
authority now on earth that can prevent this woful calamity.’
“‘Alas! how can I interfere,’ said I, ‘at a distance? It is already
within a few hours of the meeting, and before I get from among the
windings of the Severn, their swords will be bathed in each other’s
blood! I must trust to the interference of Heaven.’
“‘Is your name and influence, then, to perish for ever?’ said she. ‘Is
it so soon to follow your master’s, the great Maxwell of the Dales,
into utter oblivion? Why not rather rouse into requisition the
energies of the spirits that watch over human destinies? At least step
aside with me, that I may disclose the scene to your eyes. You know I
can do it; and you may then act according to your natural impulse.’
“Such was the import of the words she spoke to me, if not the very
words themselves. I understood them not at the time; nor do I yet.
But when she had done speaking, she took me by the hand, and
hurried me towards the door of the apartment, which she opened,
and the first step we took over the threshold, we stepped into a void
space and fell downward. I was going to call out, but felt my descent
so rapid, that my voice was stifled, and I could not so much as draw
my breath. I expected every moment to fall against something, and
be dashed to pieces; and I shut my eyes, clenched my teeth, and held
by the dame’s hand with a frenzied grasp, in expectation of the
catastrophe. But down we went—down and down, with a celerity
which tongue cannot describe, without light, breath, or any sort of
impediment. I now felt assured that we had both at once stepped
from off the earth, and were hurled into the immeasurable void. The
airs of darkness sung in my ears with a booming din as I rolled down
the steeps of everlasting night, an outcast from nature and all its
harmonies, and a journeyer into the depths of hell.
“I still held my companion’s hand, and felt the pressure of hers;
and so long did this our alarming descent continue, that I at length
caught myself breathing once more, but as quick as if I had been in
the height of a fever. I then tried every effort to speak, but they were
all unavailing; for I could not emit one sound, although my lips and
tongue fashioned the words. Think, then, of my astonishment, when
my companion sung out the following stanza with the greatest glee:—
‘Here we roll,
Body and soul,
Down to the deeps of the Paynim’s goal—
With speed and with spell,
With yo and with yell,
This is the way to the palace of hell—
Sing yo! ho!
Level and low,
Down to the Valley of Vision we go!’
“‘Ha, ha, ha! Tam Beattie,’ added she, ‘where is a’ your courage
now? Cannot ye lift up your voice and sing a stave wi’ your auld
crony? And cannot ye lift up your een, and see what region you are in
now?’
“I did force open my eyelids, and beheld light, and apparently
worlds, or huge lurid substances, gliding by me with speed beyond
that of the lightning of heaven. I certainly perceived light, though of a
dim, uncertain nature; but so precipitate was my descent, I could not
distinguish from whence it proceeded, or of what it consisted,
whether of the vapours of chaotic wastes, or the streamers of hell. So
I again shut my eyes closer than ever, and waited the event in terror
unutterable.
“We at length came upon something which interrupted our farther
progress. I had no feeling as we fell against it, but merely as if we
came in contact with some soft substance that impeded our descent;
and immediately afterwards I perceived that our motion had ceased.
“‘What a terrible tumble we hae gotten, Laird!’ said my
companion. ‘But ye are now in the place where you should be; and
deil speed the coward!’
“So saying, she quitted my hand, and I felt as if she were wrested
from me by a third object; but still I durst not open my eyes, being
convinced that I was lying in the depths of hell, or some hideous
place not to be dreamt of; so I lay still in despair, not even daring to
address a prayer to my Maker. At length I lifted my eyes slowly and
fearfully; but they had no power of distinguishing objects. All that I
perceived was a vision of something in nature, with which I had in
life been too well acquainted. It was a glimpse of green glens, long
withdrawing ridges, and one high hill, with a cairn on its summit. I
rubbed my eyes to divest them of the enchantment, but when I
opened them again, the illusion was still brighter and more
magnificent. Then springing to my feet, I perceived that I was lying
in a little fairy ring, not one hundred yards from the door of my own
hall!
“I was, as you may well conceive, dazzled with admiration; still I
felt that something was not right with me, and that I was struggling
with an enchantment; but recollecting the hideous story told me by
the beldame, of the deadly discord between my two sons, I hasted to
watch their motions, for the morning was yet but dawning. In a few
seconds after recovering my senses, I perceived my eldest son
Thomas leave his tower armed, and pass on towards the place of
appointment. I waylaid him, and remarked to him that he was very
early astir, and I feared on no good intent. He made no answer, but
stood like one in a stupor, and gazed at me. ‘I know your purpose,
son Thomas,’ said I; ‘so it is in vain for you to equivocate. You have
challenged your brother, and are going to meet him in deadly
combat; but as you value your father’s blessing, and would deprecate
his curse—as you value your hope of heaven, and would escape the
punishment of hell—abandon the hideous and cursed intent, and be
reconciled to your only brother.’
“On this, my dutiful son Thomas kneeled to me, and presented his
sword, disclaiming at the same time all intentions of taking away his
brother’s life, and all animosity for the vengeance sought against
himself, and thanked me in a flood of tears for my interference. I
then commanded him back to his couch, and taking his cloak and
sword, hasted away to the Crook of Glendearg, to wait the arrival of
his brother.”
Here Andrew Johnston’s narrative detailed the selfsame
circumstances recorded in a former part of this tale, as having passed
between the father and his younger son, so that it is needless to
recapitulate them; but beginning where that broke off, he added, in
the words of the old laird: “As soon as my son Francis had left me, in
order to be reconciled to his brother, I returned to the fairy knowe
and ring, where I first found myself seated at daybreak. I know not
why I went there, for though I considered with myself, I could
discover no motive that I had for doing so, but was led thither by a
sort of impulse which I could not resist, and from the same feeling
spread my son’s mantle on the spot, laid his sword beside it, and
stretched me down to sleep. I remember nothing farther with any
degree of accuracy, for I instantly fell into a chaos of suffering,
confusion, and racking dismay, from which I was only of late
released by awaking from a trance on the very seat, and in the same
guise in which I was the evening before. I am certain I was at home
in body or in spirit—saw my sons—spake these words to them, and
heard theirs in return. How I returned I know even less, if that is
possible, than how I went; for it seemed to me that the mysterious
force that presses us to this sphere, and supports us on it, was in my
case withdrawn or subverted, and that I merely fell from one part of
the earth’s surface and alighted on another. Now I am so ill that I
cannot move from this couch; therefore, Andrew, do you mount and
ride straight home. Spare no horseflesh, by night or by day, to bring
me word of my family, for I dread that some evil hath befallen them.
If you find them in life, give them many charges from me of brotherly
love and affection; if not—what can I say, but, in the words of the
patriarch, if I am bereaved of my children, I am bereaved.”
The two brothers, in utter amazement, went together to the green
ring on the top of the knoll above the castle of Cassway, and there
found the mantle lying spread, and the sword beside it. They then,
without letting Johnston into the awful secret, mounted straight, and
rode off with him to their father. They found him still in bed, and
very ill; and though rejoiced at seeing them, they soon lost hope of
his recovery, his spirits being broken and deranged in a wonderful
manner. Their conversations together were of the most solemn
nature, the visitation deigned to them having been above their
capacity. On the third or fourth day, their father was removed by
death from this terrestrial scene, and the minds of the young men
were so much impressed by the whole of the circumstances, that it
made a great alteration in their after life. Thomas, as solemnly
charged by his father, married Ellen Scott, and Francis was well
known afterwards as the celebrated Dr Beattie of Amherst. Ellen was
mother to twelve sons; and on the night that her seventh son was
born, her aunt Jerdan was lost, and never more heard of, either
living or dead.[9]
9. This will be viewed as a most romantic and unnatural story, as without
doubt it is; but I have the strongest reasons for believing that it is founded on a
literal fact, of which all the three were sensibly and positively convinced. It was
published in England in Dr Beattie’s lifetime, and by his acquiescence, and owing
to the respectable source from whence it came, it was never disputed in that day
that it had its origin in truth. It was again republished, with some miserable
alterations, in a London collection of 1770, by J. Smith, at No. 15, Paternoster Row,
and though I have seen none of these accounts, but relate the story wholly from
tradition, yet the assurance obtained from a friend of their existence, is a curious
corroborative circumstance, and proves that if the story was not true, the parties at
least believed it to be so.—Note by the Author.
THE ELDER’S FUNERAL.
By Professor Wilson.
How beautiful to the eye and to the heart rise up, in a pastoral
region, the green silent hills from the dissolving snow-wreaths that
yet linger at their feet! A few warm sunny days, and a few breezy and
melting nights, have seemed to create the sweet season of spring out
of the winter’s bleakest desolation. We can scarcely believe that such
brightness of verdure could have been shrouded in the snow,
blending itself, as it now does, so vividly with the deep blue of
heaven. With the revival of nature our own souls feel restored.
Happiness becomes milder, meeker, and richer in pensive thought;
while sorrow catches a faint tinge of joy, and reposes itself on the
quietness of earth’s opening breast. Then is youth rejoicing—
manhood sedate—and old age resigned. The child shakes his golden
curls in his glee; he of riper life hails the coming year with temperate
exultation; and the eye that has been touched with dimness, in the
general spirit of delight, forgets or fears not the shadows of the grave.
On such a vernal day as this did we, who had visited the Elder on
his death-bed,[10] walk together to his house in the Hazel Glen, to
accompany his body to the place of burial. On the night he died, it
seemed to be the dead of winter. On the day he was buried, it seemed
to be the birth of spring. The old pastor and I were alone for awhile
as we pursued our path up the glen, by the banks of the little burn. It
had cleared itself off from the melted snow, and ran so pellucid a
race that every stone and pebble was visible in its yellow channel.
The willows, the alders, and the birches, the fairest and the earliest of
our native hill-trees, seemed almost tinged with a verdant light, as if
they were budding; and beneath them, here and there peeped out, as
in the pleasure of new existence, the primrose lonely, or in little
families and flocks. The bee had not yet ventured to leave his cell, yet
the flowers reminded one of his murmur. A few insects were dancing
in the air, and here and there some little moorland bird, touched at
the heart with the warm and sunny change, was piping his love-sweet
song among the braes. It was just such a day as a grave meditative
man, like him we were about to inter, would have chosen to walk
over his farm in religious contentment with his lot. That was the
thought that entered the pastor’s heart, as we paused to enjoy one
brighter gleam of the sun in a little meadow-field of peculiar beauty.
10. See ante, page 280.
“This is the last day of the week, and on that day often did the
Elder walk through this little happy kingdom of his own, with some
of his grandchildren beside and around him, and often his Bible in
his hand. It is, you feel, a solitary place,—all the vale is one seclusion
—and often have its quiet bounds been a place of undisturbed
meditation and prayer.”
We now came in sight of the cottage, and beyond it the
termination of the glen. There the high hills came sloping gently
down; and a little waterfall, in the distance, gave animation to a
scene of perfect repose. We were now joined by various small parties
coming to the funeral through openings among the hills; all sedate,
but none sad, and every greeting was that of kindness and peace. The
Elder had died full of years; and there was no need why any out of his
household should weep. A long life of piety had been beautifully
closed; and, therefore, we were all going to commit the body to the
earth, assured, as far as human beings may be so assured, that the
soul was in heaven. As the party increased on our approach to the
house, there was even cheerfulness among us. We spoke of the early
and bright promise of spring—of the sorrows and joys of other
families—of marriages and births—of the new schoolmaster—of to-
morrow’s Sabbath. There was no topic of which, on any common
occasion, it might have been fitting to speak, that did not now
perhaps occupy, for a few moments, some one or other of the group,
till we found ourselves ascending the greensward before the cottage,
and stood below the bare branches of the sycamores. Then we were
all silent, and, after a short pause, reverently entered into the house
of death.
At the door the son received us with a calm, humble, and
untroubled face; and in his manner towards the old minister, there
was something that could not be misunderstood, expressing
penitence, gratitude, and resignation. We all sat down in the large
kitchen; and the son decently received each person at the door, and
showed him to his place. There were some old gray heads, more
becoming gray, and many bright in manhood and youth. But the
same solemn hush was over them all, and they sat all bound together
in one uniting and assimilating spirit of devotion and faith. Wine and
bread were to be sent round; but the son looked to the old minister,
who rose, lifted up his withered hand, and began a blessing and a
prayer.
There was so much composure and stillness in the old man’s
attitude, and something so affecting in his voice, tremulous and
broken, not in grief but age, that no sooner had he begun to pray,
than every heart and every breath at once were hushed. All stood
motionless, nor could one eye abstain from that placid and
patriarchal countenance, with its closed eyes, and long silvery hair.
There was nothing sad in his words, but they were all humble and
solemn, and at times even joyful in the kindling spirit of piety and
faith. He spoke of the dead man’s goodness as imperfect in the eyes
of his Great Judge, but such as, we were taught, might lead, through
intercession, to the kingdom of heaven. Might the blessing of God, he
prayed, which had so long rested on the head now coffined, not
forsake that of him who was now to be the father of this house. There
was more—more joy, we were told, in heaven, over one sinner that
repenteth, than over ninety and nine just persons which need no
repentance. Fervently, too, and tenderly, did the old man pray for
her, in her silent chamber, who had lost so kind a parent, and for all
the little children round her knees. Nor did he end his prayer without
some allusion to his own gray hairs, and to the approaching day on
which many then present would attend his burial.
Just as he ceased to speak, one solitary stifled sob was heard, and
all eyes turned kindly round to a little boy who was standing by the
side of the Elder’s son. Restored once more to his own father’s love,
his heart had been insensibly filled with peace since the old man’s
death. The returning tenderness of the living came in place of that of
the dead, and the child yearned towards his father now with a
stronger affection, relieved at last from all his fear. He had been
suffered to sit an hour each day beside the bed on which his
grandfather lay shrouded, and he had got reconciled to the cold but
silent and happy looks of death. His mother and his Bible told him to
obey God without repining in all things; and the child did so with
perfect simplicity. One sob had found its way at the close of that
pathetic prayer; but the tears that bathed his glistening cheeks were
far different from those that, on the day and night of his
grandfather’s decease, had burst from the agony of a breaking heart.
The old minister laid his hand silently upon his golden head; there
was a momentary murmur of kindness and pity over the room; the
child was pacified, and again all was repose and peace.
A sober voice said all was ready, and the son and the minister led
the way reverently out into the open air. The bier stood before the
door, and was lifted slowly up with its sable pall. Silently each
mourner took his place. The sun was shining pleasantly, and a gentle
breeze, passing through the sycamore, shook down the glittering
raindrops upon the funeral velvet. The small procession, with an
instinctive spirit, began to move along; and as I cast up my eyes to
take a farewell look of that beautiful dwelling, now finally left by him
who so long had blessed it, I saw at the half-open lattice of the little
bedroom window above, the pale weeping face of that stainless
matron, who was taking her last passionate farewell of the mortal
remains of her father, now slowly receding from her to the quiet field
of graves.
We proceeded along the edges of the hills, and along the meadow-
fields, crossed the old wooden bridge over the burn, now widening in
its course to the plain, and in an hour of pensive silence, or pleasant
talk, we found ourselves entering, in a closer body, the little gateway
of the churchyard. To the tolling of the bell we moved across the
green mounds, and arranged ourselves, according to the plan and
order which our feelings suggested, around the bier and its natural
supporters. There was no delay. In a few minutes the Elder was laid
among the mould of his forefathers, in their long-ago chosen spot of
rest. One by one the people dropped away, and none were left by the
new made grave but the son and his little boy, the pastor and myself.
As yet nothing was said, and in that pause I looked around me, over
the sweet burial-ground.
Each tombstone and grave over which I had often walked in
boyhood arose in my memory, as I looked steadfastly upon their
long-forgotten inscriptions; and many had then been erected. The
whole character of the place was still simple and unostentatious, but
from the abodes of the dead I could see that there had been an
improvement in the condition of the living. There was a taste visible
in their decorations, not without much of native feeling, and
occasionally something even of native grace. If there was any other
inscription than the name and age of the poor inhabitants below, it
was, in general, some short text of Scripture; for it is most pleasant
and soothing to the pious mind, when bereaved of friends, to
commemorate them on earth by some touching expression taken
from that Book which reveals to them a life in heaven.
There is a sort of gradation, a scale of forgetfulness, in a country
churchyard, where the processes of nature are suffered to go on over
the green place of burial, that is extremely affecting in the
contemplation. The soul goes from the grave just covered up, to that
which seems scarcely joined together, on and on to those folded and
bound by the undisturbed verdure of many, many unremembered
years. It then glides at last into nooks and corners where the ground
seems perfectly calm and waveless, utter oblivion having smoothed
the earth over the long mouldered bones. Tombstones, on which the
inscriptions are hidden in green obliteration, or that are mouldering,
or falling to a side, are close to others which last week were brushed
by the chisel;—constant renovation and constant decay—vain
attempts to adhere to memory—and oblivion, now baffled and now
triumphant, smiling among all the memorials of human affection, as
they keep continually crumbling away into the world of
undistinguishable dust and ashes.
The churchyard, to the inhabitants of a rural parish, is the place to
which, as they grow older, all their thoughts and feelings turn. The
young take a look of it every Sabbath-day, not always perhaps a
careless look, but carry away from it, unconsciously, many salutary
impressions. What is more pleasant than the meeting of a rural
congregation in the churchyard before the minister appears? What is
there to shudder at in lying down, sooner or later, in such a peaceful
and sacred place, to be spoken of frequently on Sabbath among the
groups of which we used to be one, and our low burial-spot to be
visited, at such times, as long as there remains on earth any one to
whom our face was dear? To those who mix in the strife and dangers
of the world, the place is felt to be uncertain wherein they may finally
lie at rest. The soldier—the sailor—the traveller—can only see some
dim grave dug for him when he dies, in some place obscure,
nameless, and unfixed to the imagination. All he feels is, that his
burial will be—on earth—or in the sea. But the peaceful dwellers who
cultivate their paternal acres, or tilling at least the same small spot of
soil, shift only from a cottage on the hillside to one on the plain, still
within the bounds of one quiet parish; they look to lay their bones at
last in the burial-place of the kirk in which they were baptised, and
with them it almost literally is but a step from the cradle to the grave.
Such were the thoughts that calmly followed each other in my
reverie, as I stood beside the Elder’s grave, and the trodden grass was
again lifting up its blades from the pressure of many feet, now all, but
a few, departed. What a simple burial had it been! Dust was
consigned to dust—no more. Bare, naked, simple, and austere is in
Scotland the service of the grave. It is left to the soul itself to
consecrate, by its passion, the mould over which tears, but no words,
are poured. Surely there is a beauty in this; for the heart is left unto
its own sorrow—according as it is a friend—a brother—a parent—or a
child, that is covered up from our eyes. Yet call not other rites,
however different from this, less beautiful or pathetic. For willingly
does the soul connect its grief with any consecrated ritual of the
dead. Sound or silence—music—hymns—psalms—sable garments, or
raiment white as snow—all become holy symbols of the soul’s
affection; nor is it for any man to say which is the most natural,
which is the best, of the thousand shows and expressions, and
testimonies of sorrow, resignation, and love, by which mortal beings
would seek to express their souls when one of their brethren has
returned to his parent dust.
My mind was recalled from all these sad, yet not unpleasant
fancies, by a deep groan, and I beheld the Elder’s son fling himself
down upon the grave and kiss it passionately, imploring pardon from
God. “I distressed my father’s heart in his old age—I repented—and
received thy forgiveness even on thy death-bed! But how may I be
assured that God will forgive me for having so sinned against my old,
grayheaded father, when his limbs were weak and his eyesight dim!”
The old minister stood at the head of the grave without speaking a
word, with his solemn and pitiful eyes fixed upon the prostrate and
contrite man. His sin had been great, and tears that till now had, on
this day at least, been compressed within his heart by the presence of
so many of his friends, now poured down upon the sod as if they
would have found their way to the very body of his father. Neither of
us offered to lift him up, for we felt awed by the rueful passion of his
love, his remorse, and his penitence; and nature, we felt, ought to
have her way. “Fear not, my son,” at length said the old man, in a
gentle voice—“fear not, my son, but that you are already forgiven.
Dost thou not feel pardon within thy contrite spirit?” He rose up
from his knees with a faint smile, while the minister, with his white
head yet uncovered, held his hands over him as in benediction; and
that beautiful and loving child, who had been standing in a fit of
weeping terror at his father’s agony, now came up to him and kissed
his cheek—holding in his little hand a few faded primroses which he
had unconsciously gathered together as they lay on the turf of his
grandfather’s grave.
MACDONALD, THE CATTLE-RIEVER.
Archibald Macdonald was perhaps the most perfect master of his

hazardous profession of any who ever practised it. Archibald was by
birth a gentleman, and proprietor of a small estate in Argyleshire,
which he however lost early in life. He soon distinguished himself as
a cattle-lifter on an extensive scale; and weak as the arm of the law
might then have been, he found it advisable to remove further from
its influence, and he shifted his residence from his native district of
Appin to the remote peninsula of Ardnamurchan, which was
admirably adapted to his purpose, from its geographical position. He
obtained a lease of an extensive farm, and he fitted up a large
cowhouse, though his whole visible live-stock consisted of one filly.
His neighbours could not help making remarks on this subject, but
he begged of them to have no anxiety on that head, assuring them
that his byre would be full ere Christmas; and he was as good as his
word. He had trained the filly to suit his purpose, and it was a
practice of his to tie other horses to her tail; she then directed her
course homeward by unfrequented routes, and always found her way
in safety.
His expeditions were generally carried on by sea, and he annoyed
the most distant of the Hebrides, both to the south and north. He
often changed the colour of his boats and sails, and adopted
whatever appeared best suited to his immediate purpose. In
consequence of this artifice, his depredations were frequently
ascribed to others, and sometimes to men of the first distinction in
that country, so dexterously did he imitate their birlings and their
insignia. He held his land from Campbell of Lochnell, into whose
favour he had insinuated himself by his knowledge and address.
When Lochnell resided at the castle of Mingary, Archibald was
often ordered to lie on a mattress in his bedroom, to entertain him at
night with the recitation of the poems of Ossian, and with tales.
Archibald contrived means to convert this circumstance to his
advantage. He ordered his men to be in readiness, and that night he
selected one of his longest poems. As he calculated, Lochnell fell
asleep before he had finished the recital; the robber slunk out and
soon joined his associates. He steered for the island of Mull, where
some of his men had been previously sent to execute his orders; he
carried off a whole fold of cattle, which he landed safely, and
returned to his mattress before Lochnell awoke. When he lay down
he purposely snored so loudly that the sleeping chief was disturbed,
and complained of the tremendous noise the fellow made, observing
that, fond as he was of poetry, he must deprive himself of it in future
on such conditions. To this Archibald had no objections; his
principal object was then accomplished, and taking up the tale where
he had stopped when his patron fell asleep, he finished it, and slept
soundly to an advanced hour.
The cattle were immediately missed, and suspicion fell on
Archibald; but he triumphantly referred to Lochnell for a proof of his
innocence, and this he obtained. That gentleman solemnly declared
that the robber had never been out of his room during that night, and
the charge was of course dropped.
A wealthy man who resided in the neighbourhood was noted for
his penurious habits, and he had incurred particular odium by
refusing a supply of meal to a poor widow in distress. This man had
sent a considerable quantity of grain to the mill, which, as usual, he
attended himself, and was conveying the meal home at night on
horseback. The horses were tied in a string, the halter of one fixed to
the tail of another; and the owner led the foremost by a long tether.
His road lay through a wood, and Archibald there watched his
approach. The night was dark, and the man walked slowly, humming
a song; the ground was soft, and the horses having no shoes (as is
still usual in that country), their tread made no noise. Archibald
ordered one of his men to loosen the tether from the head of the
front horse, and to hold it, himself occupying the place of the horse,
and walking on at the same pace. He thus got possession of the
whole. The miser soon arrived at his own door, and called for
assistance to deposit his winter store in safety, but, to his
astonishment, found he had but the halter!

Full download The Oxford Handbook of Criminal Process Darryl K Brown file pdf all chapter on 2024

Uploaded by

Copyright:

Available Formats

You might also like

Full download The Oxford Handbook of Criminal Process Darryl K Brown file pdf all chapter on 2024

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Full download The Oxford Handbook of Criminal Process Darryl K Brown file pdf all chapter on 2024

Uploaded by

Copyright:

Available Formats

The Oxford Handbook of Criminal

Process Darryl K Brown

Oxford Handbook of Ophthalmology Alastair K. O.

The Oxford Handbook of Evolutionary Psychology and

The Oxford Handbook of the History Phenomenology

The Oxford Handbook of Daniel Defoe (Oxford Handbooks)

The Oxford Handbook of Polling and Survey Methods

The Oxford Handbook of Decadence Jane Desmarais

The Oxford Handbook of Pierre Bourdieu Unknown

The Oxford Handbook of Psychotherapy Ethics Trachsel

(p. iv) Copyright Page

Oxford University Press is a department of the University of Oxford. It furthers the

Published in the United States of America by Oxford University Press

198 Madison Avenue, New York, NY 10016, United States of America.

© Oxford University Press

You must not circulate this work in any other form

Library of Congress Cataloging-in-Publication Data

Identifiers: LCCN 2018027958| ISBN 9780190659837 ((hardback): alk. paper) |

ISBN 9780190659844 ((paperback): alk. paper)

Subjects: LCSH: Criminal procedure. | Criminal law. | Criminal justice,

This publication is designed to provide accurate and authoritative information in re­

(Based on the Declaration of Principles jointly adopted by a Committee of the Ameri­

Printed by Sheridan Books, Inc., United States of America

Notes on the Contributors

(p. x) (p. xi) Notes on the Contributors

Professor of Law, Universidad Complutense, Madrid

Professor of Criminal Law, Criminal Procedure, International and European Crimi­

Professor and Dean of the Department of Legal Studies, University of Bologna

Professor of Law, University of New South Wales

Professor of Law and Director, Centre for Ethics, University of Toronto

Alene and Allan F. Smith Professor of Law, University of Michigan

L. Neil Williams, Jr., Professor of Law, Duke University School of Law

Associate Professor in Criminal Law and Criminology, University of Zurich

Professor of Criminal Law and Criminal Procedure, University of Basel

Professor of Comparative Law, Università degli Studi del Piemonte Orientale

(p. xii) Valerie P. Hans,

Professor of Law, Cornell University

Lecturer in Law, University of Exeter Law School

Professor of Law, University of Warwick

Professor of Comparative Criminal Law and Procedure, University of Nottingham,

Professor of Criminal Law, Criminal Procedure and the Transnational Aspects of

Amaladass Professor of Criminal Justice, National University of Singapore

Professor of Law, University of Luxembourg

Professor, Department of Criminal Justice, Indiana University

Assistant Professor of Law, McGill University

Professor of Law and Ethics, University of Basel

Lecturer in Criminal Law, SOAS, University of London

Professor of Criminal Jurisprudence, University of Nottingham, School of Law

Prentice H. Marshall Professor of Law, University of Illinois College of Law

(p. xiii) Helmut Satzger,

Professor of Law, Director of the Chair of German, European and International

Professor of Law, Emeritus, Saint Louis University

Centre de Droit Pénal et de Criminologie, University of Paris Nanterre

Professor of Law, Chair in Criminal Law, University of Manchester

Senior Researcher, School of Criminal Justice, University of Lausanne

Fellow, Washington University Institute for Policy in Medicine and Law

Professor of Criminal Law (ret.), University of Cologne

Postdoctoral Research Fellow, Ludwig-Maximilians-Universität, Munich

Criminal Process in the Dual Penal State: A Compara­

This publication is designed to provide accurate and authoritative information in re

(Based on the Declaration of Principles jointly adopted by a Committee of the Ameri

Professor of Criminal Law, Criminal Procedure, International and European Crimi

Criminal Process in the Dual Penal State: A Compara

overcome unproductive categorical distinctions between traditional (doctrinal, intradisci