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The chief honour of the earliest attempt at law reform belongs to Sir William Meredith, who in 1770 moved for a committee of inquiry into the state of the criminal laws. This committee proposed in its report of the following year the repeal of a few Acts which made certain offences capital; and accordingly the Commons in 1772 agreed, that it should no longer be punishable as high treason to make an attempt on the life of a Privy Councillor, that desertion of officers or soldiers should no longer be capital, nor the belonging to people who called themselves Egyptians. Some other proposals were negatived, such as a repeal of the hard law of James I. against infanticide; but the House of Lords refused their assent even to the slight changes passed by the Commons. It was an innovation, they said, and subversion of the law.[34][53] It is no reproach to Meredith, Burke, and Fox that they ceased to waste their strength against Conservatism such as this. All hope of reform was out of the question; and the most dreadful atrocities were suffered or defended. In 1777 a girl of 14 lay in Newgate under sentence to be burnt alive for false coinage, because some whitewashed farthings, that were to pass for sixpences, were found on her person; and a reprieve only came just as the cart was ready to take her to the stake. Not till 1790 was the law abolished by which women were liable to be burnt publicly for high or petit treason.[35]

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The very success of Beccarias work has so accustomed us to its result that we are apt to regard it, as men regard a splendid cathedral in their native town, with very little recognition of its claims to admiration. The work is there, they see it, they live under its shadow; they are even ready to boast of it; but[30] what to them is the toil and risk of its builders, or the care and thought of its architects? It may be said that this indifference is the very consummation Beccaria would most have desired, as it is the most signal proof of the success of his labour. So signal, indeed, has been that success, that already the atrocities which men in those days accepted as among the unalterable conditions of their existence, or resigned themselves to as the necessary safeguards of society, have become so repulsive to the worlds memory, that men have agreed to hide them from their historical consciousness by seldom reading, writing, or speaking of their existence. And this is surely a fact to be remembered with hopefulness, when we hear an evil like war with all its attendant atrocities, defended nowadays by precisely the same arguments which little more than a hundred years ago were urged on behalf of torture, but which have proved nevertheless insufficient to keep it in existence.
ONE:

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TWO:In such a zigzag path has our penal legislation been feeling, and is still feeling, its way, with evident misgiving of that principle of repression, as false as it is old, that an increase of crime can only be met by an increase of punishment.

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  • FORE: The cries of sages and philosophers are as the cries of the innocent man on the wheel, where they have never prevented, nor will ever prevent him from expiring, with his eyes upturned to heaven, which will perhaps some day stir up enthusiasm, or religious madness, or some other avenging folly, to accomplish all that their wisdom has failed to do. It is never the oration of the philosopher which disarms the powerful ruler; it is something else, which the combination of chance events brings about. Meanwhile we must not seek to force it from him, but must entreat humbly for such good as he can grant us, that is which he can grant us without injury to himself.

    Donec sit amet ligula enim. Duis vel condimentum massa. Maecenas eget congue dui.

  • FORE:A farm labourer, with a wife and four children, and earning eleven shillings a week, was imprisoned in the county gaol for two months for the theft of a pound of butter. Soon after his release sickness entered his home, and to supply his childrens wants[89] he again yielded to temptation and stole twelve ducks eggs. For this he was sentenced to seven years penal servitude; or rather not for this theft, but because he had already incurred a severe punishment for a theft of some butter. The sentence was most perfectly lawful, but was it not perfectly unjust?

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  • FORE:That the punishments of long custody by which we[103] now defend our lives and properties are out of all proportion to the real needs of social existence is indicated by such a fact as that no increase of crime used to attend the periodical release of prisoners which was for long, if it is not still, customary in Russia at the beginning of each reign. Neither in India, when on the Queens assumption of the title of Empress, a pardon was granted to about one-tenth of the prison population, did any increase of crime ensue, as, according to all criminal reasoning, it should have done, if the safety of society depends on the custody of the criminal class.[60] In Sweden a low rate of crime seems to be a direct consequence of a low scale of punishment. Of those condemned to travaux forcs, which may vary from a period of two months to a period for life, 64 per cent. are condemned for one year, and only 3 per cent. are condemned for seven years;[61] whilst sentences to the latter period in England form between 50 and 60 per cent. of the sentences to penal servitude.

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  • FORE:

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  • FORE:Given the necessity of the aggregation of mankind, and given the covenants which necessarily result from the very opposition of private interests, a scale of offences may be traced, beginning with those which tend directly to the destruction of society, and ending with acts of the smallest possible injustice committed against individual members of it. Between these extremes are comprised all the actions opposed to the public welfare which are called crimes, and which by imperceptible degrees decrease in enormity from the highest to the lowest. If the infinite and obscure combinations of human actions admitted of mathematical treatment, there ought to be a corresponding scale of punishments, varying from the severest to the slightest penalty. If there were an exact and universal scale of crimes and punishments, we should have an approximate and general test by[199] which to gauge the degrees of tyranny and liberty in different governments, the relative state of the humanity or wickedness of different nations. But the wise legislator will rest satisfied with marking out the principal divisions in such a scale, so as not to invert their order, nor to affix to crimes of the first degree punishments due to those of the last.

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  • FORE:

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THREE:

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THREE:To return to the innocent bankrupt. Granting that his obligation should not be extinguishable by anything short of total payment; granting that he should not be suffered to withdraw from it without the[218] consent of the parties interested, nor to transfer under the dominion of other laws his industry, which should perforce be employed, under penalties, to enable him to satisfy his creditors in proportion to his profits; what fair pretext, I ask, can there be, such as the security of commerce or the sacred right of property, to justify the deprivation of his liberty? Such a deprivation is only of use, when it is sought to discover the secrets of a supposed innocent bankrupt by the evils of servitude, a most unusual circumstance where a rigorous inquiry is instituted. I believe it to be a maxim in legislation, that the amount of political inconveniences varies directly in proportion to the injury they do the public, and inversely in proportion to the difficulty of their proof.

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THREE:These truths were recognised by the Roman legislators, for they inflicted torture only upon slaves, who in law had no personality. They have been adopted by England, a nation, the glory of whose literature, the superiority of whose commerce and wealth, and consequently of whose power, and the examples of whose virtue and courage leave us no doubt as to the goodness of her laws. Torture has also been abolished in Sweden; it has been abolished by one of the wisest monarchs of Europe, who, taking philosophy with him to the throne, has made himself the friend and legislator of his subjects, rendering them equal and free in their dependence on the laws, the sole kind of equality[157] and liberty that reasonable men can ask for in the present condition of things. Nor has torture been deemed necessary in the laws which regulate armies, composed though they are for the most part of the dregs of different countries, and for that reason more than any other class of men the more likely to require it. A strange thing, for whoever forgets the power of the tyranny exercised by custom, that pacific laws should be obliged to learn from minds hardened to massacre and bloodshed the most humane method of conducting trials.

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ONE:The first trace of Beccarias influence in England appeared in the first edition of Blackstones Commentaries, of which the book on the Criminal Laws[48] was published the very next year after the appearance of the Italian treatise. That Blackstone was well acquainted with it is proved by his frequent reference to it in treating of crimes. From Beccaria he argues that the certainty of punishments is more effectual than their severity, and finds it absurd to apply the same punishment to crimes of different malignity. Blackstone was also the first professional lawyer to find fault with the frequency of capital punishment in England, and to point out as a melancholy truth the presence of 160 actions in the statute book which were felonies without benefit of clergy.
FORE:Two other fatal consequences flow from the cruelty of punishments, and are contrary to their very purpose, the prevention of crimes. The first is, that it is not so easy to preserve the essential proportion between crime and punishment, because, however much a studied cruelty may diversify its forms, none of them can go beyond the extreme limit of endurance which is a condition of the human organisation and sensibility. When once this extreme limit is attained, it would be impossible to invent such a corresponding increase of punishment for still more injurious and atrocious crimes as would be necessary to prevent them. The other consequence is, that impunity itself arises from the severity of punishments. Men are restrained within limits both in good and evil; and a sight too atrocious for humanity can only be a passing rage, not a constant system, such as the laws ought to be; if the latter are really cruel, either they are changed, or themselves give rise to a fatal impunity.

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TWO:The recognition of this regulation of resentment as the main object of punishment affords the best test for measuring its just amount. For that amount will be found to be just which is necessary; that is to say, which just suffices for the object it aims atthe satisfaction of general or private resentment. It must be so much, and no more, as will prevent individuals from preferring to take the law into their own hands[84] and seeking to redress their own injuries. This degree can only be gathered from experience, nor is it any real objection to it, that it must obviously be somewhat arbitrary and variable. Both Wladimir I., the first Christian Czar of Russia, and Wladimir II. tried the experiment of abolishing capital punishment for murder; but the increase of murders by the vendetta compelled them to fall back upon the old modes of punishment.[46] Some centuries later the Empress Elizabeth successfully tried the same experiment, without the revival of the vendetta, the state of society having so far altered that the relations of a murdered man no longer insisted on the death of his murderer. But had Elizabeth abolished all legal punishment for murderhad she, that is, allowed no public vendetta of any kindundoubtedly the vendetta would have become private again.

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99 
TWO:Less dangerous personally than the theological criticism, but more pernicious to reform, was the hostile criticism that at once appeared from the thick phalanx of professional lawyers, the sound-thinking practical men. From whom only two short extracts need be rescued from oblivion, as illustrations of the objections once raised against ideas which have since become the common groundwork of all subsequent legislation, in America as well as in Europe. The first extract is from a work on criminal justice by a lawyer of Provence, who in 1770 wrote as follows:
THREE: It does not follow, because the laws do not punish intentions, that therefore a crime begun by some action, significative of the will to complete it, is undeserving of punishment, although it deserves less than a crime actually committed. The importance of preventing an attempt at a crime justifies a punishment; but, as there may be an interval between the attempt and the execution, the reservation of a greater punishment for a consummated crime may present a motive for its non-completion. THREE:Capital punishment makes an impression in prospect which, with all its force, does not fully meet that ready spirit of forgetfulness, so natural to man even in his most important concerns, and so liable to be accelerated by his passions. As a general rule, men are startled by the sight of violent sufferings, but not for long, and therefore such impressions are wont so to transform them as to make of ordinary men either Persians or Spartans; but in a free and settled government impressions should rather be frequent than strong.Who can protect himself from calumny, when it is armed by the strongest shield of tyranny, secrecy? What sort of government can that ever be where in every subject a ruler suspects an enemy, and is obliged for the sake of the general tranquillity to rob each individual of its possession? THREE:Capital punishment makes an impression in prospect which, with all its force, does not fully meet that ready spirit of forgetfulness, so natural to man even in his most important concerns, and so liable to be accelerated by his passions. As a general rule, men are startled by the sight of violent sufferings, but not for long, and therefore such impressions are wont so to transform them as to make of ordinary men either Persians or Spartans; but in a free and settled government impressions should rather be frequent than strong.
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The good faith of contracts and the security of commerce compel the legislator to assure to creditors the persons of insolvent debtors. But I think it important to distinguish the fraudulent from the innocent bankrupt, the former of whom should receive the same punishment as that assigned to false coiners, since it is no greater crime to falsify a piece of coined money, the pledge of mens mutual[217] obligations, than to falsify those obligations themselves. But the innocent bankrupthe who, after a searching inquiry, has proved before his judges that the wickedness or misfortune of some one else, or the inevitable vicissitudes of human prudence, have despoiled him of his substancefor what barbarous reason ought such an one to be thrown into prison, and deprived of the only poor benefit that remains to him, a barren liberty, in order to suffer the agonies of the really guilty, and, in despair at his ruined honesty, to repent perhaps of that innocence, by which he lived peacefully under the protection of those laws that it was not in his power not to offend against? Laws, too, dictated by the powerful by reason of their rapacity, and endured by the feeble by reason of that hope, which generally glimmers in the human heart, and leads us to believe that unfavourable contingencies are reserved for others, favourable ones for ourselves! Men left to their natural feelings love cruel laws, however much, as subject to them themselves, it might be for their individual interest that they should be mitigated; because their fear of being injured by others is greater than their desire to inflict injuries themselves.CHAPTER XXVIII. OF INJURIES AND OF HONOUR.In the ordinary state of society the death of a citizen is neither useful nor necessary.There are a few obvious remedies by which the inducements to crime might be easily diminished. In 1808 Sir Samuel Romilly brought in a bill, to provide persons tried and acquitted of felony with compensation, at the discretion of the judge, for the loss they incurred by their detention and trial. This was objected to, on the ground that the payment of such compensation out of the county rates would discourage prosecutions; and the only justice done to men falsely accused from that day to this is the authorisation given to goal-governors in 1878 to provide prisoners, who have been brought from another county for trial at the assizes and have been acquitted, with means of returning to their own homes. Something more than this is required to save a man so situated from falling into real crime.
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