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TWO:No inconvenience that may arise from a strict observance of the letter of penal laws is to be compared with the inconveniences of subjecting them to interpretation. The momentary inconvenience in the former case involves, indeed, correcting the words of the law which are the cause of the uncertainty, a task both easy and necessary; but the fatal licence of arguing, the source of so many arbitrary and venal disputes, is thereby prevented. When a fixed code of laws, which must be observed to the letter, leaves to the judge no further trouble than to inquire into the actions of citizens and to decide on their conformity to the written law; when the standard of just and[129] unjust, which should equally direct the actions of the ignorant citizen as of the philosophical one, is not a matter of controversy but of fact; then are people no longer subject to the petty tyrannies of many men, which are all the more cruel by reason of the smaller distance that separates the sufferer from the inflictor of suffering, and which are more pernicious than the tyrannies of a single man, inasmuch as the despotism of many is only curable by that of one, and a despots cruelty is proportioned, not to the power he possesses, but to the obstacles he encounters. Under a fixed code of laws citizens acquire that consciousness of personal security, which is just, because it is the object of social existence, and which is useful, because it enables them to calculate exactly the evil consequences of a misdeed. It is true they will also acquire a spirit of independence, but not such a spirit as will seek to shake the laws and prove rebellious against the chief magistrates, except against such of them as have dared to apply the sacred name of virtue to a spiritless submission to their own self-interested and capricious opinions. These principles will displease those who have assumed the right to transfer to their subordinates the strokes of tyranny they themselves have suffered from their superiors. I personally should have everything to fear, if the spirit of tyranny and the spirit of reading ever went together.There was not an anomaly in our old criminal practice which was not based on this theorya theory which had, indeed, its precedent in the old Hebrew law that punished more severely a theft from a field than a theft from a house; and the first writer who protested against it was Eden, afterwards Lord Auckland, who in 1771 published his Principles of Penal Law, one of the best books ever written on the subject. The influence of Beccaria is apparent in Edens work, not only by his direct reference to it, but by his spirit of declared opposition to the actual practice of the law. Two instances of its tendency will suffice. Imprisonment, inflicted by law as a punishment, is not according to the principles of wise legislation. It sinks useful subjects into burthens on the community, and has always a bad effect on their morals; nor can it communicate the benefit of example, being in its nature secluded from the eye of the people. And again: Whatever exceeds simple death is mere cruelty. Every step beyond is a trace of ancient barbarity, tending only to distract the attention of the spectators and to lessen the solemnity of the example. There is no such thing as vindictive justice; the idea is shocking.
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TWO:But that the humanity of the speculative school of law was not without some influence on public opinion, as well as to a certain extent a reflection of it, is proved by a few abortive attempts in Parliament to mitigate the severity of our penal code in the latter half of the last century. Even so early as 1752[52] the Commons agreed to commute the punishment of felony in certain cases to hard labour in the docks; but the Lords refused their consent, as from that time onward for more than eighty years they regularly continued to refuse it to all mitigation of the laws affecting crime. It must ever remain a matter of regret, that the r?le of the House of Lords in the matter of criminal law reform should have continued from 1752 to 1832 to be one of systematic and obstinate opposition to change, and an opposition which had no justification in the general level of national enlightenment.CHAPTER XXXVII. OF A PARTICULAR KIND OF CRIME.
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TWO: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.
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