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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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FORE:The case of infanticide suggests similar thoughts. When we remember that both Plato and Aristotle commended as a valuable social custom that which we treat as a crime; when we recall the fact that the life of a Spartan infant depended on a committee of elders, who decided whether it should live or perish, we shall better appreciate the distance we have travelled, or, as some would say, the progress we have made, if we take up some English daily paper and read of some high-minded English judge sentencing, at least formally, some wretched woman to death, because, in order to save her child from starvation or herself from shame, she has released it from existence. Yet the feeling, of which such a sentence is the expression, is often extolled as one of the highest triumphs of civilisation; and the laws, as if there were no difference between adult and infant[76] life, glory in protecting the weakness of a child by their merciless disregard for the weakness of its mother. As soon as the proofs of a crime and its reality are fully certified, the criminal must be allowed time and opportunity for his defence; but the time allowed must be so short as not to interfere with the speediness of his punishment, which, as we have seen, is one of the principal restraints from crime. A false philanthropy seems opposed to this shortness of time; but all doubt will vanish, on reflection that the more defective any system of law is, the greater are the dangers to which innocence is exposed.
FORE: An error, not less common than it is contrary to the object of societythat is, to the consciousness of personal securityis leaving a magistrate to be the arbitrary executor of the laws, free at his pleasure to imprison a citizen, to deprive a personal enemy of his liberty on frivolous pretexts, or to leave a friend unpunished in spite of the strongest proofs of his guilt. Imprisonment is a punishment which, unlike every other, must of necessity precede the declaration of guilt; but this distinctive character does not deprive it of the other essential of punishment, namely, that the law alone shall determine the cases under which it shall be merited. It is for the law, therefore, to point out the amount of evidence of a crime which shall justify the detention of the accused, and his subjection to examination and punishment. For such detention there may be sufficient proofs in common[133] report, in a mans flight, in a non-judicial confession, or in the confession of an accomplice; in a mans threats against or constant enmity with the person injured; in all the facts of the crime, and similar indications. But these proofs should be determined by the laws, not by the judges, whose decisions, when they are not particular applications of a general maxim in a public code, are always adverse to political liberty. The more that punishments are mitigated, that misery and hunger are banished from prisons, that pity and mercy are admitted within their iron doors, and are set above the inexorable and hardened ministers of justice, the slighter will be the evidences of guilt requisite for the legal detention of the suspected.

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CHAPTER XXXVIII. FALSE IDEAS OF UTILITY.In revenges or punishments, says Hobbes, men ought not to look at the greatness of the evil past, but the greatness of the good to follow, whereby we are forbidden to inflict punishment with any other design than for the correction of the offender and the admonition of others. And over and over again the same thing has been said, till it has come to be a commonplace in the philosophy of law, that the object of punishment is to reform and deter. As was once said by a great legal authority, We do not hang you because you stole a horse, but that horses may not be stolen.[42] Punishment by this theory is a means to an end, not an end in itself.Nothing is more dangerous than that common axiom, We must consult the spirit of the laws. It is like breaking down a dam before the torrent of opinions. This truth, which seems a paradox to ordinary minds, more struck as they are by a little present inconvenience than by the pernicious but remote consequences which flow from a false principle enrooted among a people, seems to me to be demonstrated. Our knowledge and all our ideas are reciprocally connected together; and the more complicated they are, the more numerous are the approaches to them, and the points of departure. Every man has his own point of viewa different one at different times; so that the spirit of the laws would mean the result of good or bad logic on the part of a judge, of an easy or difficult digestion; it would depend now on the violence of his passions, now on the[128] feebleness of the sufferer, on the relationship between the judge and the plaintiff, or on all those minute forces which change the appearances of everything in the fluctuating mind of man. Hence it is that we see a citizens fate change several times in his passage from one court to another; that we see the lives of wretches at the mercy of the false reasonings or of the temporary caprice of a judge, who takes as his rightful canon of interpretation the vague result of all that confused series of notions which affect his mind. Hence it is that we see the same crimes punished differently by the same court at different times, owing to its having consulted, not the constant and fixed voice of the laws, but their unstable and erring interpretations.
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