ONE: A contradiction between the laws and the natural feelings of mankind arises from the oaths which are required of an accused, to the effect that he will be a truthful man when it is his greatest interest to be false; as if a man could really swear to contribute to his own destruction, or as if religion would not be silent with most men when their interest spoke on the other side. The experience of all ages has shown that men have abused religion more than any other of the precious gifts of heaven; and for what reason should criminals respect it, when men esteemed as the wisest have often violated it? Too weak, because too far removed from the senses, are[147] for the mass of people the motives which religion opposes to the tumult of fear and the love of life. The affairs of heaven are conducted by laws absolutely different from those which govern human affairs; so why compromise those by these? Why place men in the terrible dilemma of either sinning against God or concurring in their own ruin? The law, in fact, which enforces such an oath commands a man either to be a bad Christian or to be a martyr. The oath becomes gradually a mere formality, thus destroying the force of religious feelings, which for the majority of men are the only pledge of their honesty. How useless oaths are has been shown by experience, for every judge will bear me out when I say that no oath has ever yet made any criminal speak the truth; and the same thing is shown by reason, which declares all laws to be useless, and consequently injurious, which are opposed to the natural sentiments of man. Such laws incur the same fate as dams placed directly in the main stream of a river: either they are immediately thrown down and overwhelmed, or a whirlpool formed by themselves corrodes and undermines them imperceptibly.
TWO:[34]Romillys first idea with respect to the reform of the criminal law was a sufficiently humble one. It was nothing more than to raise the amount of the value of the property, the theft of which should expose a man to death. Twelvepence, as fixed by the statute of Elizabeth, originally signified a much greater theft than it had come to signify after a lapse of two centuries. Romilly had at first no idea of removing the death penalty for theft; his only hope was to get it affixed to a graver theft than the larceny of a shilling. Yet even so he could not bring himself to consult with the judges on the subject of his intended bill, for he had not the least hope they would approve of the measure.
FORE:Moreover, if, as was said, our feelings are limited in quantity, the greater respect men may have for things outside the laws, the less will remain to them for the laws themselves. From this principle the wise administrator of the public happiness may draw some useful consequences, the exposition of which would lead me too far from my subject, which is to demonstrate the uselessness of making a prison of the State. A law with such an object is useless, because, unless inaccessible rocks or an unnavigable sea separate a country from all others, how will it be possible to close all the points of its circumference and keep guard over the guardians themselves? A man who transports everything he has with him, when he has done so cannot be punished. Such a crime once committed can no longer be punished, and to punish it beforehand would be to punish mens wills, not their actions, to exercise command over their intention, the freest part of human nature, and altogether independent of the control of human laws. The punishment of an absent man in the property he leaves behind him would ruin all international commerce,[225] to say nothing of the facility of collusion, which would be unavoidable, except by a tyrannical control of contracts. And his punishment on his return, as a criminal, would prevent the reparation of the evil done to society, by making all removals perpetual. The very prohibition to leave a country augments peoples desire to do so, and is a warning to foreigners not to enter it.
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