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The other book was from a man whom above all others our forefathers delighted to honour. This was Archdeacon Paley, who in 1785 published his Moral and Political Philosophy, and dedicated it to the then Bishop of Carlisle. Nor is this fact of the dedication immaterial, for the said Bishop was the father of the future Lord Chief Justice Ellenborough, who enjoys the melancholy fame of having been the inveterate and successful opponent of nearly every movement made in his time, in favour of the mitigation of our penal laws. The chapter on Crimes and Punishments in Paley and the speeches of Lord Ellenborough on the subject in the House of Lords are, in point of fact, the same thing; so that Paleys chapter is of distinct historical importance, as the[55] chief cause of the obstruction of reform, and as the best expression of the philosophy of his day. If other countries adopted Beccarias principles more quickly than our own, it was simply that those principles found no opponents anywhere equal to Archdeacon Paley and his pupil, Lord Ellenborough.If, moreover, the prevention of crime is the chief object of punishment, why wait till the crime is committed? Why not punish before, as a certain Turk in Barbary is said to have done, who, whenever he bought a fresh Christian slave, had him forthwith suspended by his heels and bastinadoed, that the severe sense of his punishment might prevent him from committing in future the faults that should[82] merit it?[43] Why should we ever let a man out of prison who has once entered one? Is he not then a hundred times more likely to violate the law than he was before; and is he ever more dangerous to society than when he has once suffered for the public example, and been released from the discipline that was intended to reform him? It is still true, as Goldsmith said long ago, that we send a man to prison for one crime and let him loose again ready to commit a thousand. And so it is, that of the 74,000 souls who make up our criminal classes, whilst about 34,000 of them fill our prisons and reformatories, there is still an army of 40,000 at large in our midst, whom we class as known thieves, receivers of stolen goods, and suspected persons.[44]
THREE: After crimes of high treason come crimes opposed to the personal security of individuals. This security being the primary end of every properly constituted society, it is impossible not to affix to the violation of any citizens right of personal security one of the severest punishments that the laws allow.This, then, is the way to avoid confounding the relations and invariable nature of things, which, being unlimited by time and in ceaseless operation, confounds and overturns all narrow regulations that depart from it. It is not only the arts of taste and pleasure which have for their universal principle the faithful imitation of nature; but the art of politics itself, at least that which is true and permanent, is subject to this general maxim, since it consists in nothing else than the art of directing in the best way and to the same purposes the immutable sentiments of mankind. ONE:The Translator has abstained from all criticism or comment of the original, less from complete agreement[vi] with all its ideas than from the conviction that annotations are more often vexatious than profitable, and are best left to the reader to make for himself. There is scarcely a sentence in the book on which a commentator might not be prolix.
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FORE: It is better to prevent crimes than to punish them. This is the chief aim of every good system of legislation, which is the art of leading men to the greatest possible happiness or to the least possible misery,[243] according to calculation of all the goods and evils of life. But the means hitherto employed for this end are for the most part false and contrary to the end proposed. It is impossible to reduce the turbulent activity of men to a geometrical harmony without any irregularity or confusion. As the constant and most simple laws of nature do not prevent aberrations in the movements of the planets, so, in the infinite and contradictory attractions of pleasure and pain, disturbances and disorder cannot be prevented by human laws. Yet this is the chimera that narrow-minded men pursue, when they have power in their hands. To prohibit a number of indifferent acts is not to prevent the crimes that may arise from them, but it is to create new ones from them; it is to give capricious definitions of virtue and vice which are proclaimed as eternal and immutable in their nature. To what should we be reduced if everything had to be forbidden us which might tempt us to a crime? It would be necessary to deprive a man of the use of his senses. For one motive that drives men to commit a real crime there are a thousand that drive them to the commission of those indifferent acts which are called crimes by bad laws; and if the likelihood of crimes is proportioned to the number of motives to commit them, an increase of the field of crimes is an increase of the likelihood of their commission. The majority of laws are nothing but[244] privileges, or a tribute paid by all to the convenience of some few.

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THREE:Again, Proportion between crime and punishment seems to be another natural demand of equity. Yet it is evident that it is only approximately possible, and will vary in every age and country according to the prevalent notions of morality. Is imprisonment for a year, or imprisonment for life, or for how long, a fair and proportionate punishment for perjury? Who shall decide? Shall we submit it to the opinion of the judges? But has not Romilly left on record the story of the two men tried by two different judges for stealing some chickens, who were sentenced respectively one to imprisonment for two months, and the other to transportation? Shall we then give up all attempt at proportion and apply the same deterrent as equally efficacious against slight or grave offences? Draco, when asked why he made death the punishment for most offences that were possible, is said to have replied, Small ones deserve it, and I can find no greater for the gravest. The same reasoning was for a long time that of our own law; and in Japan,[78] where every wrong act was one of disobedience to the Emperor, and accordingly of equal value, the same penalty of death for gambling, theft, or murder, obviated all difficulties with regard to a proportion which is easier to imagine than it is to define.
THREE:Whoever, then, I repeat, will honour me with his criticisms, let him not begin by supposing me to advocate principles destructive of virtue or religion, seeing that I have shown that such are not my principles; and instead of his proving me to be an infidel or a[116] rebel, let him contrive to find me a bad reasoner or a shortsighted politician; but let him not tremble at every proposition on behalf of the interests of humanity; let him convince me either of the inutility or of the possible political mischief of my principles; let him prove to me the advantage of received practices. I have given a public testimony of my religion and of my submission to my sovereign in my reply to the Notes and Observations; to reply to other writings of a similar nature would be superfluous; but whoever will write with that grace which becomes honest men, and with that knowledge which shall relieve me from the proof of first principles, of what character soever, he shall find in me not so much a man who is eager to reply as a peaceable lover of the truth.
THREE:CHAPTER IV. THE PROBLEMS OF PENOLOGY.
THREE:Or to take a stronger case. A deserter from the ranks escapes to his home, breaks into it at night, robs an infirm father of all the savings he has provided for his old age, and in a struggle for their possession so injures him that he dies. Must the law disclaim all indignation, all resentment, in the punishment it inflicts, and say to such a ruffian that it only deals hard with him in order to warn others by his example, and with the pious hope of making a good man of him in the future? If resentment is ever just, is it wrong to give it public expression? If it is natural and right in private life, why should it be a matter of shame in public life? If there is such a thing as just anger for a single man, does it become unjust when distributed among a million?
THREE:
THREE: 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.
THREE:CHAPTER XXVII. CRIMES AGAINST PERSONAL SECURITYACTS OF VIOLENCEPUNISHMENTS OF NOBLES.Nothing could be more interesting than Lord Kames account of the growth of criminal law, from the rude revenges of savages to the legal punishments of civilised States; but it was probably intended by its author less as an historical treatise than as a veiled attack upon the penal system of his country. It is, therefore, a good illustration of the timidity of the Theoretical school against the overwhelming forces of the Practical school of law, which, of course, included[51] the great body of the legal profession; and it is the first sign of an attempt to apply the experience of other countries and times to the improvement of our own jurisprudence.
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FORE:Count Pietro Verri was the son of Gabriel, who was distinguished alike for his legal knowledge and high position in Milan. At the house of Pietro, Beccaria and the other friends used to meet for the discussion and study of political and social questions. Alessandro, the younger brother of Pietro, held the office of Protector of Prisoners, an office which consisted in visiting the prisons, listening to the grievances of the inmates, and discovering, if possible, reasons for their defence or for mercy. The distressing sights he[10] was witness of in this capacity are said to have had the most marked effect upon him; and there is no doubt that this fact caused the attention of the friends to be so much directed to the state of the penal laws. It is believed to have been at the instigation of the two brothers that Beccaria undertook the work which was destined to make his name so famous.CHAPTER XXXIX. OF FAMILY SPIRIT.

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FORE: The first consequence of these principles is, that the laws alone can decree punishments for crimes, and this authority can only rest with the legislator, who represents collective society as united by a social contract. No magistrate (who is part of society) can justly inflict punishments upon another member of the same society. But since a punishment that exceeds the legally fixed limit is the lawful punishment plus another one, a magistrate can, under no pretext of zeal or the public good, add to the penalty already decreed against a delinquent citizen.[37]

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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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FORE:No man has gratuitously parted with a portion of his own liberty with a view to the public good; that is a chimera which only exists in romances. Each one of us would wish, if it were possible, that the[122] covenants which bind others should not bind himself. There is no man but makes himself the central object of all the combinations of the globe.The multiplication of the human race, slight in the abstract, but far in excess of the means afforded by nature, barren and deserted as it originally was, for the satisfaction of mens ever increasing wants, caused the first savages to associate together. The first unions necessarily led to others to oppose them, and so the state of war passed from individuals to nations.

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Sir Robert Peel, who was the first Ministerial law reformer, succeeded in getting the death penalty repealed for several crimes which were practically obsolete, but forty kinds of forgery alone still remained capital offences.But the honour of having been the first country to lay aside the use of torture undoubtedly belongs to England, just as the honour of having been the first in modern times to abolish capital punishment, except for political offences, belongs to Russia; and the practical example thus afforded by our laws probably did more for the general abolition of the custom than any written treatise on the subject ever would have done alone. English and foreign jurists long delighted to honour the Common Law for its non-recognition of torture. But though torture was contrary to the Common Law, and even to Magna Charta, it was not contrary to Prerogative; and until the Commonwealth it was used as matter of course in all grave accusations at the mere discretion of the monarch and Privy Council.[19] Therefore Beccaria pointed to England as a country which did not use torture with more justice than Grotius had done, who, when the rack was still in use amongst us, quoted England as a proof that people might safely live without torture.Any action that is not included between the two above-indicated extremes can only be called a crime or punished as such by those who find their interest in so calling it. The uncertainty of these limits has produced in different nations a system of ethics contrary to the system of laws, has produced many actual systems of laws at total variance with one another, and a quantity of laws which expose even the wisest man to the severest penalties. Consequently the words virtue and vice have become of vague and variable meaning, and from the uncertainty thus surrounding individual existence, listlessness and a fatal apathy have spread over political communities.
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