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There is a general theorem which is most useful for calculating the certainty of a fact, as, for instance, the force of the proofs in the case of a given crime:It is impossible to prevent all the disorders that may arise in the universal conflict of human passions. Their increase depends on that of population and on the crossings of private interests, which cannot be directed with geometrical exactness to the public welfare. In political arithmetic the calculation of probabilities must be substituted for mathematical exactness. Glance at the history of the world, and you will see disorders increase with the increase of the bounds of empire; thus national feeling being to the same extent diminished, the general inducement to crime increases with the greater interest of each individual in such disorders, and on this account the necessity for aggravating penalties ever continues to increase.
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/ FORE:For instance, the injury to the public is no greater the hundredth time a man steals a rabbit than it is the first. The public may be interested in the prevention of poaching, but it is not interested in the person of the poacher, nor in the number of times he may have broken the law. The law claims to be impersonalto treat offences as they affect the State, not as they affect individuals; to act mechanically, coldly, and dispassionately. It has, therefore, simply to deal with the amount of injury done by each specific offence, and to affix to it its specific penalty, regardless of all matters of moral antecedents. The repetition of an offence may make its immorality the greater, but its[88] criminality remains the same, and this only is within the province of the law.

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/ FORE:CHAPTER XVIII. INFAMY.

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THREE:CHAPTER XIV. CRIMINAL ATTEMPTS, ACCOMPLICES, IMPUNITY.Had I to address nations still destitute of the light of religion, I would say that there is yet another considerable difference between adultery and other crimes. For it springs from the abuse of a constant and universal human impulse, an impulse anterior to, nay, the cause of the institution of society; whereas other crimes, destructive of society, derive their origin rather from momentary passions than from a natural impulse. To anyone cognisant of history and his kind, such an impulse will seem to be equivalent in the same climate to a constant quantity; and if this be so, those laws and customs which seek to diminish the sum-total will be useless or dangerous, because their effect will be to burthen one half of humanity with its own needs and those of others; but those laws, on the contrary, will be the wisest, which following, so to speak, the gentle inclination of the plain, divide the total amount, causing it to ramify into so many equal and small portions, that aridity or overflowing are equally prevented everywhere. Conjugal fidelity is always proportioned to the number and to the freedom of marriages. Where marriages are governed by hereditary prejudices, or[229] bound or loosened by parental power, there the chains are broken by secret intrigue, in despite of ordinary morality, which, whilst conniving at the causes of the offence, makes it its duty to declaim against the results. But there is no need of such reflections for the man who, living in the light of true religion, has higher motives to correct the force of natural effects. Such a crime is of so instantaneous and secret commission, so concealed by the very veil the laws have drawn round it (a veil necessary, indeed, but fragile, and one that enhances, instead of diminishing, the value of the desired object), the occasions for it are so easy, and the consequences so doubtful, that the legislator has it more in his power to prevent than to punish it. As a general rule, in every crime which by its nature must most frequently go unpunished, the penalty attached to it becomes an incentive. It is a quality of our imagination, that difficulties, if they are not insurmountable nor too difficult, relatively to the mental energy of the particular person, excite the imagination more vividly, and place the object desired in larger perspective; for they serve as it were as so many barriers to prevent an erratic and flighty fancy from quitting hold of its object; and, while they compel the imagination to consider the latter in all its bearings, it attaches itself more closely to the pleasant[230] side, to which our mind most naturally inclines, than to the painful side, which it places at a distance.
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THREE:A strong feeling against the pillory was aroused by the sentence passed against Lord Cochrane in 1814, by which, for supposed complicity in a plot to raise the price of the Funds, he was condemned to a years imprisonment, to a fine of 1000l., and to stand in the pillory. A bill for the abolition of the pillory accordingly passed the Commons the very next year, but Lord Ellenborough succeeded again in bringing the Upper House to a pause: the pillory forsooth was as old as 1269; it was spoken of by the old historians; it was not confined to this country, for Du Cange spoke of it on the Continent. For these reasons the pillory remained a legal punishment down to the first year of the present reign.In proportion as punishments become milder, clemency and pardon become less necessary. Happy the nation in which their exercise should be baneful! Clemency, therefore, that virtue, which has sometimes made up in a sovereign for failings in all the other duties of the throne, ought to be excluded in a perfect system of legislation, where punishments are mild and the method of trial regular and expeditious. This truth will appear a hard one to anybody living in the present chaotic state of the criminal law, where the necessity of pardon and favours accords with the absurdity of the laws and with the severity of sentences of punishment. This right of pardon is indeed the fairest prerogative of the throne, the most desirable attribute of sovereignty; it is, however, the tacit mark of disapproval that the beneficent dispensers of the public happiness exhibit towards a code, which with all its imperfections claims in its favour the prejudice of ages, the voluminous and imposing array of innumerable commentators, the weighty apparatus of unending formalities, and the adhesion of those persons of half-learning who, though less feared than real philosophers, are really more dangerous. But let it be remembered that clemency is the virtue of[191] the maker, not of the executor, of the laws; that it should be conspicuous in the code of laws rather than in particular judgments; that the showing to men, that crimes may be pardoned and that punishment is not their necessary consequence, encourages the hope of impunity, and creates the belief that sentences of condemnation, which might be remitted and are not, are rather violent exhibitions of force than emanations of justice. What shall be said then when the sovereign grants a pardon, that is, public immunity to an individual, and when a private act of unenlightened kindness constitutes a public decree of impunity? Let the laws therefore be inexorable and their administrators in particular cases inexorable, but let the law-maker be mild, merciful, and humane. Let him found his edifice, as a wise architect, on the basis of self-love; let the general interest be the sum of the interests of each, and he will no longer be constrained, by partial laws and violent remedies to separate at every moment the public welfare from that of individuals, and to raise the appearance of public security on fear and mistrust. As a profound and feeling philosopher let him allow men, that is, his brethren, to enjoy in peace that small share of happiness which is given them to enjoy in this corner of the universe, in that immense system established by the First Cause, by Him Who Is.
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/ FORE:The year before its publication 51 malefactors were executed in London, the year after 97, whilst not long afterwards was seen the rare spectacle of nearly 20 criminals hung at a time. Romilly was so much shocked at what he considered the folly and inhumanity of Madans book that he wrote a short tract of observations upon it, of which he sent a copy to each of the judges. But it is characteristic of the feeling of that time that only a hundred copies of his tract were sold. It was, however, from that time that Romilly began to make the criminal law his special study, so that to Madan indirectly our country owes the efforts of Romilly.

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THREE:A few stories may be taken as illustrative of thousands to indicate the mischief and travesty of justice which arises from the neglect of this principle, and from the custom of making a legal inquiry into moral antecedents.For instance, the injury to the public is no greater the hundredth time a man steals a rabbit than it is the first. The public may be interested in the prevention of poaching, but it is not interested in the person of the poacher, nor in the number of times he may have broken the law. The law claims to be impersonalto treat offences as they affect the State, not as they affect individuals; to act mechanically, coldly, and dispassionately. It has, therefore, simply to deal with the amount of injury done by each specific offence, and to affix to it its specific penalty, regardless of all matters of moral antecedents. The repetition of an offence may make its immorality the greater, but its[88] criminality remains the same, and this only is within the province of the law.
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March 23rd, 2015 5 Comments

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/ FORE:It is not useless to repeat what others have written, namely, that the best method of preventing this crime is to punish the aggressorin other words, the man who gives rise to the dueldeclaring him to be innocent who without his own fault has been constrained to defend that which existing laws do not assure to him, that is, opinion.

March 23rd, 2014 5 Comments

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March 25rd, 2014 5 Comments

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THREE:If I am confronted with the example of almost all ages and almost all nations who have inflicted the punishment of death upon some crimes, I will reply, that the example avails nothing before truth, against which there is no prescription of time; and that the history of mankind conveys to us the idea of an immense sea of errors, among which a few truths, confusedly and at long intervals, float on the surface.[179] Human sacrifices were once common to almost all nations, yet who for that reason will dare defend them? That some few states, and for a short time only, should have abstained from inflicting death, rather favours my argument than otherwise, because such a fact is in keeping with the lot of all great truths, whose duration is but as of a lightning flash in comparison with the long and darksome night that envelops mankind. That happy time has not yet arrived when truth, as error has hitherto done, shall belong to the majority of men; and from this universal law of the reign of error those truths alone have hitherto been exempt, which supreme wisdom has seen fit to distinguish from others, by making them the subject of a special revelation.
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THREE:The lighting of a city by night at the public expense; the distribution of guards in the different quarters; simple moral discourses on religion, but only in the silent and holy quiet of churches, protected by public authority; speeches on behalf of private and public interests in national assemblies, parliaments, or wherever else the majesty of sovereignty residesall these are efficacious means for preventing the dangerous condensation of popular passions. These means are a principal branch of that magisterial vigilance which the French call police; but if this is exercised by arbitrary laws, not laid down in a code of general circulation, a door is opened to tyranny,[221] which ever surrounds all the boundaries of political liberty. I find no exception to this general axiom, that Every citizen ought to know when his actions are guilty or innocent. If censors, and arbitrary magistrates in general, are necessary in any government, it is due to the weakness of its constitution, and is foreign to the nature of a well organised government. More victims have been sacrificed to obscure tyranny by the uncertainty of their lot than by public and formal cruelty, for the latter revolts mens minds more than it abases them. The true tyrant always begins by mastering opinion, the precursor of courage; for the latter can only show itself in the clear light of truth, in the fire of passion, or in ignorance of danger.
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THREE:We shall see, if we open histories, that laws, which[118] are or ought to be covenants between free men, have generally been nothing but the instrument of the passions of some few men, or the result of some accidental and temporary necessity. They have never been dictated by an unimpassioned student of human nature, able to concentrate the actions of a multitude of men to a single point of view, and to consider them from that point alonethe greatest happiness divided among the greatest number. Happy are those few nations which have not waited for the slow movement of human combinations and changes to cause an approach to better things, after intolerable evils, but have hastened the intermediate steps by good laws; and deserving is that philosopher of the gratitude of mankind, who had the courage, from the obscurity of his despised study, to scatter abroad among the people the first seeds, so long fruitless, of useful truths.

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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? Palpable but consecrated abuses, which in many nations are the necessary results of a weak political constitution, are Secret Accusations. For they render men false and reserved, and whoever may suspect that he sees in his neighbour an informer will see in him an enemy. Men then come to mask their real feelings, and by the habit of hiding them from others they at last get to hide them from themselves. Unhappy they who have come to that; who, without clear and fixed principles to guide them, wander lost and confused in the vast sea of opinions, ever busied in saving themselves from the horrors that oppress them, with the present moment ever embittered by the uncertainty of the future, and without the lasting pleasures of quiet and security, devouring in unseemly haste those few pleasures, which occur at rare intervals in their melancholy lives and scarcely console them for the fact of having lived! Is it of such men we can hope to make intrepid soldiers, defenders of their country and crown? Is it among such men we shall find incorrupt magistrates, able with their free and patriotic eloquence to sustain and develop the true interests of their sovereign, ready, with the tribute they bear, to[143] carry to the throne the love and blessings of all classes of men, and thence to bring back to palaces and cottages alike peace and security, and that active hope of ameliorating their lot which is so useful a leaven, nay, which is the life of States?2. When the proofs of a fact all depend equally on a single one, their number neither increases nor diminishes the probability of the fact in question, because their total value resolves itself into that of the single one on which they depend. Whatever improvement our penal laws have undergone in the last hundred years is due primarily to Beccaria, and to an extent that has not always been recognised. Lord Mansfield is said never to have mentioned his name without a sign of respect. Romilly referred to him in the very first speech he delivered in the House of Commons on the subject of law reform. And there is no English writer of that day who, in treating of the criminal law, does not refer to Beccaria.
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