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These are some of the difficulties of the subject, which teach us the necessity of constant open-mindedness with regard to all ideas or practices connected with criminal law. But, would we further examine our established notions, we should consider a statement from Hobbes which goes to the very root of the theory of punishment.
ONE:Lastly, some have thought that the gravity of an acts sinfulness should be an element in the measure of crimes. But an impartial observer of the true relations between man and man, and between man[201] and God, will easily perceive the fallacy of this opinion. For the former relationship is one of equality; necessity alone, from the clash of passions and opposing interests, having given rise to the idea of the public utility, the basis of human justice. But the other relationship is one of dependence on a perfect Being and Creator, who has reserved to Himself alone the right of being at the same time legislator and judge, and can alone unite the two functions without bad effects. If He has decreed eternal punishments to those who disobey His omnipotence, what insect shall dare to take the place of Divine justice, or shall wish to avenge that Being, who is all-sufficient to Himself, who can receive from things no impression of pleasure nor of pain, and who alone of all beings acts without reaction? The degree of sinfulness in an action depends on the unsearchable wickedness of the heart, which cannot be known by finite beings without a revelation. How, then, found thereon a standard for the punishment of crimes? In such a case men might punish when God pardons, and pardon when God punishes. If men can act contrary to the Almighty by offending Him, they may also do so in the punishments they inflict.
TWO:But that the humanity of the speculative school of law was not without some influence on public opinion, as well as to a certain extent a reflection of it, is proved by a few abortive attempts in Parliament to mitigate the severity of our penal code in the latter half of the last century. Even so early as 1752[52] the Commons agreed to commute the punishment of felony in certain cases to hard labour in the docks; but the Lords refused their consent, as from that time onward for more than eighty years they regularly continued to refuse it to all mitigation of the laws affecting crime. It must ever remain a matter of regret, that the r?le of the House of Lords in the matter of criminal law reform should have continued from 1752 to 1832 to be one of systematic and obstinate opposition to change, and an opposition which had no justification in the general level of national enlightenment. 更多 »
TWO:
TWO:Frederick the Great had already abolished it in Prussia;[1] it had been discontinued in Sweden; it was not recognised in the military codes of Europe, and Beccaria said it was not in use in England. This was true generally, although the peine forte et dure, by which a prisoner who would not plead was subjected to be squeezed nearly to death by an iron weight, was not abolished till the year 1771.[2] There are some crimes which, are at the same time frequent in society and yet difficult to prove, as adultery, pederasty, infanticide.
TWO: There is also a fourth consequence of the above principles: that the right to interpret penal laws cannot possibly rest with the criminal judges, for the[126] very reason that they are not legislators. The judges have not received the laws from our ancestors as a family tradition, as a legacy that only left to posterity the duty of obeying them, but they receive them from living society, or from the sovereign that represents it and is the lawful trustee of the actual result of mens collective wills; they receive them, not as obligations arising from an ancient oath[65] (null, because it bound wills not then in existence, and iniquitous, because it reduced men from a state of society to that of a flock), but as the result of the tacit or expressed oath made to the sovereign by the united wills of living subjects, as chains necessary for curbing and regulating the disorders caused by private interests. This is the natural and real source of the authority of the laws.
TWO:In order that a punishment may attain its object, it is enough if the evil of the punishment exceeds the advantage of the crime, and in this excess of evil the certainty of punishment and the loss of the possible advantage from the crime ought to be considered as part; all beyond this is superfluous and consequently tyrannical. Men regulate their conduct by the reiterated impression of evils they know, not by reason of evils they ignore. Given two nations, in one of which, in the scale of punishments proportioned[167] to the scale of crimes, the severest penalty is perpetual servitude, and in the other the wheel; I say that the former will have as great a dread of its severest punishment as the latter will have; and if there be any reason for transporting to the former country the greater penalties of the other, the same reasoning will serve for increasing still more the penalties of this latter country, passing imperceptibly from the wheel to the slowest and most elaborate tortures, nay, even to the last refinements of that science which tyrants understand only too well.
TWO:
TWO:But ought such a crime to be let go unpunished in the case of a man who has no effects to lose? No: there are kinds of smuggling of so much importance to the revenue (which is so essential and so difficult a part of a good system of laws), that such a crime deserves a considerable punishment, even imprisonment or servitude; but imprisonment and servitude conformable to the nature of the crime itself. For example, the prison of the tobacco-smuggler ought not to be the same as that of the assassin or the thief; and the labours of the former, limited to the work and service of the very treasury he wished to defraud, will be the punishments most conformable to the nature of his crime.
TWO:The other book was from a man whom above all others our forefathers delighted to honour. This was Archdeacon Paley, who in 1785 published his Moral and Political Philosophy, and dedicated it to the then Bishop of Carlisle. Nor is this fact of the dedication immaterial, for the said Bishop was the father of the future Lord Chief Justice Ellenborough, who enjoys the melancholy fame of having been the inveterate and successful opponent of nearly every movement made in his time, in favour of the mitigation of our penal laws. The chapter on Crimes and Punishments in Paley and the speeches of Lord Ellenborough on the subject in the House of Lords are, in point of fact, the same thing; so that Paleys chapter is of distinct historical importance, as the[55] chief cause of the obstruction of reform, and as the best expression of the philosophy of his day. If other countries adopted Beccarias principles more quickly than our own, it was simply that those principles found no opponents anywhere equal to Archdeacon Paley and his pupil, Lord Ellenborough.Would you prevent crimes, contrive that the laws favour less different orders of citizens than each citizen in particular. Let men fear the laws and nothing but the laws. Would you prevent crimes, provide that reason and knowledge be more and more diffused. To conclude: the surest but most difficult method of making men better is by perfecting education.[20]
TWO: There was a time when nearly all penalties were pecuniary. Mens crimes were the princes patrimony; attempts against the public safety were an object of gain, and he whose function it was to defend it found his interest in seeing it assailed. The object of punishment was then a suit between the treasury, which exacted the penalty, and the criminal: it was a civil business, a private rather than a public dispute, which conferred upon the treasury other rights than those conferred upon it by the calls of the public defence, whilst it inflicted upon the offender other grievances than those he had incurred by the necessity of example. The judge was, therefore, an advocate for the treasury rather than an impartial investigator of the truth, an agent for the Chancellor of the Exchequer rather than the protector and minister of the laws. But as in this system to confess a fault was the same thing as to confess oneself a debtor to the treasury, that being the object of the criminal procedure in those days, so the confession of a crime, and a confession so managed as to favour and not to hurt fiscal interests, became and still remains (effects always outlasting their causes so long) the centre[241] point of all criminal procedure. Without such confession a criminal convicted by indubitable proofs will incur a penalty less than the one legally attached to his crime; and without it he will escape torture for other crimes of the same sort which he may have committed. With it, on the other hand, the judge becomes master of a criminals person, to lacerate him by method and formality, in order to get from him as from so much stock all the profit he can. Given the fact of the crime as proved, confession affords a convincing proof; and, to make this proof still less open to doubt, it is forcibly exacted by the agonies and despair of physical pain; whilst at the same time a confession that is extra-judicial, that is tendered calmly and indifferently, and without the overpowering fears of a trial by torture, is held insufficient for a verdict of guilt. Inquiries and proofs, which throw light upon the fact, but which weaken the claims of the treasury, are excluded; nor is it out of consideration for his wretchedness and weakness that a criminal is sometimes spared from torture, but out of regard for the claims which this entity, now mythical and inconceivable, might lose. The judge becomes the enemy of the accused, who stands in chains before him, the prey of misery, of torments, and the most terrible future; he does not seek to find the truth of a fact, but to find the crime in the prisoner, trying to entrap him, and thinking it to the loss of his own[242] credit if he fail to do so, and to the detriment of that infallibility which men pretend to possess about everything. The evidence that justifies a mans imprisonment rests with the judge; in order that a man may prove himself innocent, he must first be declared guilty: that is called an offensive prosecution; and such are criminal proceedings in nearly every part of enlightened Europe, in the eighteenth century. The real prosecution, the informative onethat is, the indifferent inquiry into a fact, such as reason enjoins, such as military codes employ, and such as is used even by Asiatic despotism in trivial and unimportant casesis of very scant use in the tribunals of Europe. What a complex maze of strange absurdities, doubtless incredible to a more fortunate posterity! Only the philosophers of that time will read in the nature of man the possible actuality of such a system as now exists.

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If, moreover, the prevention of crime is the chief object of punishment, why wait till the crime is committed? Why not punish before, as a certain Turk in Barbary is said to have done, who, whenever he bought a fresh Christian slave, had him forthwith suspended by his heels and bastinadoed, that the severe sense of his punishment might prevent him from committing in future the faults that should[82] merit it?[43] Why should we ever let a man out of prison who has once entered one? Is he not then a hundred times more likely to violate the law than he was before; and is he ever more dangerous to society than when he has once suffered for the public example, and been released from the discipline that was intended to reform him? It is still true, as Goldsmith said long ago, that we send a man to prison for one crime and let him loose again ready to commit a thousand. And so it is, that of the 74,000 souls who make up our criminal classes, whilst about 34,000 of them fill our prisons and reformatories, there is still an army of 40,000 at large in our midst, whom we class as known thieves, receivers of stolen goods, and suspected persons.[44] False ideas of utility entertained by legislators are one source of errors and injustice. It is a false idea of utility which thinks more of the inconvenience of individuals than of the general inconvenience; which tyrannises over mens feelings, instead of arousing them into action; which says to Reason, Be thou subject. It is a false idea of utility which sacrifices a thousand real advantages for one imaginary or trifling drawback; which would deprive men of the use of fire because it burns or of water because it drowns; and whose only remedy for evils is the entire destruction of their causes. Of such a kind are laws prohibiting the wearing of arms, for they only disarm those who are not inclined nor resolved to commit crimes, whilst those who have the courage to violate the most sacred laws of humanity, the most important in the law-code, are little likely to be induced to respect those lesser and purely arbitrary laws, which are easier to contravene with impunity; and the strict observance of which would imply the destruction of all personal liberty, (that liberty dearest to the enlightened legislator and to men generally,) subjecting the innocent to vexations[234] which only the guilty deserve. These laws, whilst they make still worse the position of the assailed, improve that of their assailants; they increase rather than diminish the number of homicides, owing to the greater confidence with which an unarmed man may be attacked than an armed one. They are not so much preventive of crimes as fearful of them, due as they are to the excitement roused by particular facts, not to any reasoned consideration of the advantages or disadvantages of a general decree. Again, it is a false idea of utility, which would seek to impart to a multitude of intelligent beings the same symmetry and order that brute and inanimate matter admits of; which neglects present motives, the only constantly powerful influences with the generality of men, to give force to remote and future ones, the impression of which is very brief and feeble, unless a force of imagination beyond what is usual makes up, by its magnifying power, for the objects remoteness. Lastly, it is a false idea of utility, which, sacrificing the thing to the name, distinguishes the public good from that of every individual member of the public. There is this difference between the state of society and the state of nature, that in the latter a savage only commits injuries against others with a view to benefit himself, whilst in the former state men are sometimes moved by bad laws to injure others without any corresponding benefit to themselves. The tyrant casts[235] fear and dread into the minds of his slaves, but they return by repercussion with all the greater force to torment his own breast. The more confined fear is in its range, so much the less dangerous is it to him who makes it the instrument of his happiness; but the more public it is and the larger the number of people it agitates, so much the more likely is it that there will be some rash, some desperate, or some clever and bold man who will try to make use of others for his own purpose, by raising in them hopes, that are all the more pleasant and seductive as the risk incurred in them is spread over a greater number, and as the value attached by the wretched to their existence diminishes in proportion to their misery. This is the reason why offences ever give rise to fresh ones: that hatred is a feeling much more durable than love, inasmuch as it derives its force from the very cause that weakens the latter, namely, from the continuance of the acts that produce it.But these periods of time will not be lengthened in exact proportion to the atrocity of crimes, since the probability of a crime is in inverse ratio to its atrocity. It will, then, be necessary to shorten the period for inquiry and to increase that of prescription; which[159] may appear to contradict what I said before, namely, that it is possible to inflict equal penalties on unequal crimes, by counting as a penalty that period of imprisonment or of prescription which precedes the verdict. To explain to the reader my idea: I distinguish two kinds of crimesthe first, atrocious crimes, beginning with homicide and including all the excessive forms of wickedness; the second comprising less considerable crimes. This distinction is founded in human nature. Personal security is a natural right, the security of property a social one. The number of motives which impel men to violate their natural affections is far smaller than those which impel them, by their natural longing for happiness, to violate a right which they do not find written in their hearts but only in the conventions of society. The very great difference between the probability of these two kinds of crime respectively makes it necessary that they should be ruled by different principles. In cases of the more atrocious crimes, because they are more uncommon, the time for inquiry ought to be so much the less as the probability of the innocence of the accused is greater; and the time of prescription ought to be longer, as on an ultimate definite sentence of guilt or innocence depends the destruction of the hope of impunity, the harm of which is proportioned to the atrocity of the crime. But in cases of lesser criminality, where the presumption in favour of a mans[160] innocence is less, the time for inquiry should be longer; and as the harm of impunity is less, the time of prescription should be shorter. But such a division of crimes ought, indeed, not to be admitted, if the danger of impunity decreased exactly in proportion to the greater probability of the crime. One should remember that an accused man, whose guilt or innocence is uncertain, may, though acquitted for lack of proofs, be subjected for the same crime to a fresh imprisonment and inquiry, in the event of fresh legal proofs rising up against him, so long as the time of prescription accorded by the laws has not been past. Such at least is the compromise that I think best fitted to preserve both the liberty and the security of the subject, it being only too easy so to favour the one at the expense of the other, that these two blessings, the inalienable and equal patrimony of every citizen, are left unprotected and undefended, the one from declared or veiled despotism, the other from the turbulence of civil anarchy.But of far greater historical interest than such criticism is that of Ramsay, the Scotch poet and painter, to whom a copy of Beccarias treatise had been shown by Diderot, and who wrote a letter about it to the latter, which, though it contains some very just criticisms on Beccaria, yet reads for the most part very curiously by the light of subsequent history, and illustrates graphically the despair of all reform then felt by most men of reflection.[8]That Penology is still only in its experimental stage as a science, in spite of the progress it has made in recent times, is clear from the changes that are so constantly being made in every department of our penal system. We no longer mutilate nor kill our criminals, as our ancestors did in the plenitude of their wisdom; we have ceased to transport them, and our only study now is to teach them useful trades and laborious industry. Yet whether we shall better bring them to love labour by compulsory idleness or by compulsory work, whether short imprisonment or long is the most effective discipline, whether seclusion or association is least likely to demoralise them, these and similar questions have their answers in a quicksand of uncertainty. This only may experience be said to have yet definitely proved, that very little relation exists in any country between the given quantity of crime and the quantity or severity of punishment directed to its prevention. It has taken thousands of years to establish this truth, and even yet it is but partially recognised over the world.
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