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Judgment must be nothing but the precise text of the law, and the office of the judge is only to pronounce whether the action is contrary or conformable to it.

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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?The most successful adoption of Beccarias principles of punishment occurred in Tuscany, under the Grand Duke Leopold. When he ascended the ducal throne, the Tuscans were the most abandoned people of all Italy. Robberies and murders were none the less frequent for all the gallows, wheels, and tortures which were employed to repress them. But Leopold in 1786 resolved to try Beccarias plan, for which purpose he published a code, proportioning punishments to crimes, abolishing mutilation and torture, reducing the number of acts of treason, lessening confiscations, destroying the right of asylum, and above all abolishing capital punishment even for murder. The result was, says a contemporary, that Tuscany, from having been the land of the greatest crimes and villanies, became the best ordered State of Europe.[22] During twenty years only five murders were committed in Tuscany, whilst at Rome, where death continued to be inflicted with great pomp, as[36] many as sixty were committed within the space of three months.[23]CHAPTER XXXI. SMUGGLING.
Slider 1 ONE: From the simple consideration of the truths hitherto demonstrated it is evident that the object of punishment is neither to torment and inflict a sensitive creature nor to undo a crime already committed. Can he, whose function it is, so far from acting from passion, to tranquillise the private passions of his fellows, harbour in the body politic such useless cruelty, the instrument either of furious fanatics or of weak tyrants? Shall perchance the shrieks of an unhappy wretch call back from never-receding time actions already executed? The object, therefore, of punishment is simply to prevent the criminal from injuring anew his fellow-citizens, and to deter others from committing similar injuries; and those punishments and that method of inflicting them should be preferred which, duly proportioned to the offence, will produce a more efficacious and lasting impression on the[166] minds of men and inflict the least torture on the body of a criminal.

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Slider 2 ONE:CHAPTER XXXI. SMUGGLING.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:

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Slider 1 ONE:In the ordinary state of society the death of a citizen is neither useful nor necessary.The opponents of capital punishment may fairly, therefore, draw an argument in their favour from the fact that so many parts of the world have found it not incompatible with the general security of life to erase the death penalty from their list of deterrent agencies. It is better to rely on so plain a fact than on statistics which, like two-edged weapons, often cut both ways. The frequency of executions in one country and their total absence in another may severally coexist with great numerical equality in the number of murders committed in each. It is always better, therefore, to look for some other cause for a given number of murders than the kind of punishment directed to their repression. They may[45] depend on a thousand other things, which it is difficult to ascertain or eliminate. Thus both in Bavaria, where capital punishment has been retained, and in Switzerland, where it had been abolished in 1874, murders have increased greatly in recent years; and this fact has, with great probability, been attributed to the influence of bad habits contracted during the Franco-German war.

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Slider 3 ONE: I lead a tranquil and solitary life, if a select company of friends in which the heart and mind are in continual movement can be called solitude. This is my consolation, and prevents me feeling in my own country as if I were in exile.

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ONE: Such fatal and legalised iniquities as have been referred to have been approved of by even the wisest men and practised by even the freest republics, owing to their having regarded society rather as an aggregate[236] of families than as one of individuals. Suppose there to be 100,000 individuals, or 20,000 families, of five persons each, including its representative head: if the association is constituted by families, it will consist of 20,000 men and 80,000 slaves; if it be an association of individuals, it will consist of 100,000 citizens, and not a single slave. In the first case there will be a republic, formed of 20,000 little sovereignties; in the second the republican spirit will breathe, not only in the market-places and meetings of the people, but also within the domestic walls, wherein lies so great a part of human happiness or misery. In the first case, also, as laws and customs are the result of the habitual sentiments of the members of the republicthat is, of the heads of familiesthe monarchical spirit will gradually introduce itself, and its effects will only be checked by the conflicting interests of individuals, not by a feeling that breathes liberty and equality. Family spirit is a spirit of detail and confined to facts of trifling importance. But the spirit which regulates communities is master of general principles, overlooks the totality of facts, and combines them into kinds and classes, of importance to the welfare of the greater number. In the community of families sons remain in the power of the head of the family so long as he lives, and are obliged to look forward to his death for an existence dependent on the laws alone. Accustomed to submission and fear in the[237] freshest and most vigorous time of life, when their feelings are less modified by that timidity, arising from experience, which men call moderation, how shall they withstand those obstacles in the way of virtue which vice ever opposes, in that feeble and failing period of life when despair of living to see the fruit of their labours hinders them from making vigorous changes?

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THREE:The country in which the first attempt was made to apply his principles to practice was Russia, where Catharine II. was anxious to establish a uniform[33] penal code, based on the liberal ideas of the time, which then found more favour in St. Petersburg than they did at Paris. For this purpose in 1767 she summoned to Moscow from all the provinces of Russia those 652 deputies who formed the nearest approach in the history of that country to a Russian Parliament. In the instructions that were read to this assembly, as the basis for the proposed codification of the laws, the principles propounded were couched not only in the spirit but often in the very words of the author of the Crimes and Punishments. The following are examples:

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THREE: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. 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.

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THREE:

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THREE:Hence both in the state of extreme political liberty and in that of extreme political subjection the ideas of honour disappear or get perfectly confused with others. For in the former the despotism of the laws renders the pursuit of the favour of others of no avail; and in the latter state the despotism of men, by destroying civil existence, reduces everybody to a precarious and temporary personality. Honour, therefore, is one of the fundamental principles of those monarchies that are a mitigated form of despotism, being to them what revolutions are to despotic States, namely, a momentary return to the state of nature, and a reminder to the chief ruler of the condition of primitive equality.

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ONE:Others again measure crimes rather by the rank of the person injured than by their importance in regard to the public weal. Were this the true measure of crimes, any act of irreverence towards the Supreme Being should be punished more severely than the assassination of a monarch, whereas the superiority of His nature affords an infinite compensation for the difference of the offence.In view of these principles it will appear strange (to anyone who does not reflect, that reason has, so to speak, never yet legislated for a nation), that it is just the most atrocious crimes or the most secret and chimerical onesthat is, those of the least probabilitywhich are proved by conjectures or by the weakest and most equivocal proofs: as if it were the interest of the laws and of the judge, not to search for the truth, but to find out the crime; as if the danger of condemning an innocent man were not so much the greater, the greater the probability of his innocence over that of his guilt.

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THREE:When Beccaria wrote against capital punishment, one great argument against its abolition was its practical universality. It had been abolished in ancient Egypt by king Sabaco,[28] in the best period of the Roman Republics by the Porcian law, and in the time of the Roman Empire by Calo-Johannes.[29] But these cases were too remote from modern times to lend much weight to the general argument. At that time Russia alone of all the countries in the world[44] had, from the accession of the Empress Elizabeth, afforded a practical example of the fact, that the general security of life is not diminished by the withdrawal of the protection of capital punishment. But since that time this truth has become less and less a theory or speculation, and it now rests on the positive experience of no inconsiderable portion of the world. In Tuscany, Holland, Portugal, Russia, Roumania, Saxony, Prussia, Belgium, and in ten of the United States of America, the death penalty has either been abolished or discontinued; and can it be thought that the people of those countries are so indifferent to the safety of their lives as to be content with a less efficient legal protection than is vouchsafed in countries where the protection is death?

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ONE:Lord Kames attacked our criminal law in a still more indirect way, by tracing punishment historically to the revenge of individuals for their private injuries, and by extolling the excellence of the criminal law of the ancient Egyptians. They, he said, avoided capital punishments as much as possible, preferring others which equally prevented the recommission of crimes. Such punishments effected their end with less harshness and severity than is found in the laws of any other nation, ancient or modern.[32]1. When the proofs of a fact are dependent one on anotherthat is to say, when each single proof rests on[135] the weight of some otherthen the more numerous the proofs are, the smaller is the probability of the fact in question, because the chances of error in the preliminary proofs would increase the probability of error in the succeeding ones.

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THREE:The opponents of capital punishment may fairly, therefore, draw an argument in their favour from the fact that so many parts of the world have found it not incompatible with the general security of life to erase the death penalty from their list of deterrent agencies. It is better to rely on so plain a fact than on statistics which, like two-edged weapons, often cut both ways. The frequency of executions in one country and their total absence in another may severally coexist with great numerical equality in the number of murders committed in each. It is always better, therefore, to look for some other cause for a given number of murders than the kind of punishment directed to their repression. They may[45] depend on a thousand other things, which it is difficult to ascertain or eliminate. Thus both in Bavaria, where capital punishment has been retained, and in Switzerland, where it had been abolished in 1874, murders have increased greatly in recent years; and this fact has, with great probability, been attributed to the influence of bad habits contracted during the Franco-German war.The mind of man offers more resistance to violence and to extreme but brief pains than it does to time and to incessant weariness; for whilst it can, so to speak, gather itself together for a moment to repel the former, its vigorous elasticity is insufficient to resist the long and repeated action of the latter. In the[174] case of capital punishment, each example presented of it is all that a single crime affords; in penal servitude for life, a single crime serves to present numerous and lasting warnings. And if it be important that the power of the laws should often be witnessed, there ought to be no long intervals between the examples of the death penalty; but this would presuppose the frequency of crimes, so that, to render the punishment effective, it must not make on men all the impression that it ought to make, in other words, it must be useful and not useful at the same time. And should it be objected that perpetual servitude is as painful as death, and therefore equally cruel, I will reply, that, taking into consideration all the unhappy moments of servitude, it will perhaps be even more painful than death; but whilst these moments are spread over the whole of a lifetime, death exercises all its force in a single moment. There is also this advantage in penal servitude, that it has more terrors for him who sees it than for him who suffers it, for the former thinks of the whole sum-total of unhappy moments, whilst the latter, by the unhappiness of the present moment, has his thoughts diverted from that which is to come. All evils are magnified in imagination, and every sufferer finds resources and consolations unknown to and unbelieved in by spectators, who substitute their own sensibility for the hardened soul of a criminal.

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THREE: One of the greatest preventives of crimes is, not the cruelty of the punishments attached to them, but their infallibility, and consequently that watchfulness on the part of the magistrates and that inexorable severity on the part of the judge which, to be a useful virtue, must coincide with a mild system of laws. The certainty of a punishment, moderate though it be, will ever make a stronger impression than the fear of another, more terrible, perhaps, but associated with the hope of impunity; for even the least evils when certain always terrify mens minds, and hope, that gift of heaven, which often makes up to us for everything, always throws into the distance the idea of greater evils, especially when its force is increased by impunity, which avarice and weakness so often grant.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]

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THREE:Romilly also injured his cause by a pamphlet on the criminal law, in which he criticised severely the doctrines of Paley. So strongly was this resented, that in 1810 his bill to abolish capital punishment for stealing forty shillings from a dwelling-house did not even pass the Commons, being generally opposed, as it was by Windham, because the maintenance of Paleys reputation was regarded as a great object of national concern.[37] That is to say, men voted not so much against the bill as against the author of a heresy against Paley.

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THREE: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.

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ONE:As it, then, was necessity which constrained men to yield a part of their individual liberty, it is certain that each would only place in the general deposit the least possible portiononly so much, that is, as would suffice to induce others to defend it. The aggregate of these least possible portions constitutes the right of punishment; all that is beyond this is an abuse and not justice, a fact but not a right.[64] Punishments[124] which exceed what is necessary to preserve the deposit of the public safety are in their nature unjust; and the more just punishments are, the more sacred and inviolable is personal security, and the greater the liberty that the sovereign preserves for his subjects.Sir James Mackintosh, who succeeded Romilly as law reformer, in 1820 introduced with success six penal reform bills into the House of Commons; but the Lords assented to none of them that were of any practical importance to the country. They agreed, indeed, that it should no longer be a capital offence for an Egyptian to reside one year in the country, or for a man to be found disguised in the Mint, or to injure Westminster Bridge; but they did not agree to remove the capital penalty for such offences as wounding cattle, destroying trees, breaking down the banks of rivers, or sending threatening letters. It was feared that if the punishment were mitigated, the whole of Lincolnshire might be submerged, whole forests cut down, and whole herds destroyed. As to the Shoplifting Bill, they would not let death be abolished for stealing in shops altogether, but only where the value of the theft was under 10l. That seemed the limit of safe concession.

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TWO:One thing that might be done, which would also serve at the same time to keep a prisoners family from want, the main source of crime, would be the formation of a Prisoners Fund, for his and their benefit. For this there is a precedent in a quite recent Act. For the Act, which abolished the forfeiture of a felons property, enabled the Crown to appoint an administrator of it, for the benefit of the persons injured by the crime and the felons family, the property itself and its income reverting ultimately to the convict or to his representatives. There could, however, be no objection in justice to the forfeiture of a proportionate part of every felons property, such forfeiture to be dedicated to the formation of a fund, out of which assistance should be given, both to the families of prisoners during their custody and to the prisoners themselves on their discharge.[62] Such a fund might be still further increased by the substitution of a lien on a mans wages or income for many minor offences now punished, but not prevented, by imprisonment.

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TWO:Lord Ellenborough was so hard upon speculative humanity, as opposed to real practical common sense, that the speculative school are never likely to forget him. But they owe too much to him not to forgive him; since he is the standing proof, that in matters of the general policy of the law professional opinion is a less trustworthy guide than popular sentiment,[64] and that in questions of law reform it is best to neglect the fossil-wisdom of forgotten judges, and to seek the opinion of Jones round the corner as readily as that of Jones upon the Bench.

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Judgment must be nothing but the precise text of the law, and the office of the judge is only to pronounce whether the action is contrary or conformable to it.

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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?The most successful adoption of Beccarias principles of punishment occurred in Tuscany, under the Grand Duke Leopold. When he ascended the ducal throne, the Tuscans were the most abandoned people of all Italy. Robberies and murders were none the less frequent for all the gallows, wheels, and tortures which were employed to repress them. But Leopold in 1786 resolved to try Beccarias plan, for which purpose he published a code, proportioning punishments to crimes, abolishing mutilation and torture, reducing the number of acts of treason, lessening confiscations, destroying the right of asylum, and above all abolishing capital punishment even for murder. The result was, says a contemporary, that Tuscany, from having been the land of the greatest crimes and villanies, became the best ordered State of Europe.[22] During twenty years only five murders were committed in Tuscany, whilst at Rome, where death continued to be inflicted with great pomp, as[36] many as sixty were committed within the space of three months.[23]CHAPTER XXXI. SMUGGLING.

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