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Lord Ellenborough, on the last day but one of May 1810, appealed to their lordships to pause, before they passed the Shoplifting Bill and gave their assent to the repeal of a law which had so long been held necessary for the security of the public. No one, he insisted, was more disposed than himself to the exercise of clemency, but there was not the slightest ground for the insinuations of cruelty that had been cast on the administration of the law. If shoplifting did not require the penalty of death, the same rule would have to apply to horse- and sheep-stealing; and, in spite of all that was said in favour of this speculative humanity, they must all agree, that prevention of crime should be the chief object of the law, and that terror alone could prevent the crime in question. Those who were thus speculating in modern legislation urged that punishment should[63] be certain and proportionate; but he could satisfy the House that any attempt to apply a punishment in exact conformity to the offence would be perfectly ludicrous. He had consulted with the other judges, and they were unanimously of opinion that it would not be expedient to remit this part of the severity of the criminal law.[38] He therefore entreated them to pause.

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But there is a still further uncertainty of punishment, for it is as well known in the criminal world as elsewhere that the sentence pronounced in court is not the real sentence, and that neither penal servitude for[96] five years nor penal servitude for life mean necessarily anything of the sort. The humanity of modern legislation insists on a remission of punishment, dependent on a convicts life in the public works prisons, in order that the element of hope may brighten his lot and perchance reform his character. This remission was at first dependent simply on his conduct, which was perhaps too generously called good where it was hard for it to be bad; now it depends on his industry and amount of work done. Yet the element of hope might be otherwise assured than by lessening the certainty of punishment, say, by associating industry or good conduct with such little privileges of diet, letter-writing, or receiving of visits, as still shed some rays of pleasure over the monotony of felon-life. It should not be forgotten, that the Commission of 1863, which so strongly advocated the remissibility of parts of penal sentences, did so in despite of one of its principal members, against no less an authority than the Lord Chief Justice, then Sir Alexander Cockburn.[55] The very fact of the remissibility of a sentence is an admission of its excessive severity; for to say that a sentence is never carried out is to say that it need never have been inflicted.
THREE:But should a man who is banished and excluded for ever from the society of which he was a member be also deprived of his property? Such a question may be regarded from different points of view. The loss of property is a greater punishment than banishment; there ought, therefore, to be some cases in which, according to his crime, a man should lose the whole, or part, or none of his property. The confiscation of the whole will occur, when the legal sentence of banishment is of a kind to annihilate all the ties that exist between society and its offending member; for in such a case the citizen dies, and only the man remains; and with regard to the political body civil death should produce the same effect as natural death. It would seem then that the confiscated property should pass to a mans lawful heirs rather than[182] to the head of the State, since death and banishment in its extreme form are the same with regard to the body politic. But it is not by this subtlety that I dare to disapprove of confiscations of property. If some have maintained that confiscations have acted as checks on acts of revenge and on the great power of individuals, it is from neglecting to consider that, however much good punishments may effect, they are not for that reason always just, because to be just they must be necessary; and an expedient injustice can be tolerated by no legislator, who wishes to close all doors against watchful tyranny, ever ready to hold out flattering hopes, by temporary advantages and by the prosperity of a few persons of celebrity, in disregard of future ruin and of the tears of numberless persons of obscurity. Confiscations place a price on the heads of the feeble, cause the innocent to suffer the punishment of the guilty, and make the commission of crimes a desperate necessity even for the innocent. What sadder sight can there be than that of a family dragged down to infamy and misery by the crimes of its head, unable to prevent them by the submission imposed on it by the laws, even supposing such prevention to have been within its power!That these causes do to a great extent defeat the preventive effect of our penal laws, is proved by the tale of our criminal statistics, which reveal the fact that most of our crime is committed by those who[100] have once been punished, and that of general crime about 77 per cent. is committed with impunity. But if so large a proportion of crimes pass unpunished altogether, it is evident that society depends much less for its general security upon its punishments than is commonly supposed. Might it not, therefore, still further relax such punishments, which are really a severe tax on the great majority of honest people for the repression of the very small proportion who constitute the dishonest part of the community?[58]
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TWO:Although these instructions were not so much laws as suggestions of laws, it is obvious what their effect must have been when published and diffused throughout Russia. That they were translated into Latin, German, French, and Italian proves the interest that was taken in Europe by this first attempt to apply the maxims of philosophy to practical government.
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< From all that has gone before a general theorem may be deduced, of great utility, though little comformable to custom, that common lawgiver of nations. The theorem is this: In order that every punishment may not be an act of violence, committed by one man or by many against a single individual, it ought to be above all things public, speedy, necessary, the least possible in the given circumstances, proportioned to its crime, dictated by the laws.The second pretext for torture is its application to supposed criminals who contradict themselves under examination, as if the fear of the punishment, the uncertainty of the sentence, the legal pageantry, the majesty of the judge, the state of ignorance that is common alike to innocent and guilty, were not enough to plunge into self-contradiction both the innocent man[154] who is afraid, and the guilty man who seeks to shield himself; as if contradictions, common enough when men are at their ease, were not likely to be multiplied, when the mind is perturbed and wholly absorbed in the thought of seeking safety from imminent peril.The result, then, of torture is a matter of temperament, of calculation, which varies with each man according[152] to his strength and sensibility; so that by this method a mathematician might solve better than a judge this problem: Given the muscular force and the nervous sensibility of an innocent man, to find the degree of pain which will cause him to plead guilty to a given crime.
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