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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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The immortal President, Montesquieu, has treated cursorily of this matter; and truth, which is indivisible, has forced me to follow the luminous footsteps of this great man; but thinking men, for whom I write, will be able to distinguish my steps from his. Happy shall I esteem myself if, like him, I shall succeed in obtaining the secret gratitude of the unknown and peaceable followers of reason, and if I shall inspire them with that pleasing thrill of emotion with which sensitive minds respond to the advocate of the interests of humanity.
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TWO:Since mankind generally, suspicious always of the language of reason, but ready to bow to that of authority, remain unpersuaded by the experience of all ages, in which the supreme punishment has never diverted resolute men from committing offences against society; since also they are equally unmoved by the example of the Romans and by twenty years of the reign of the Empress Elizabeth of Russia, during which she presented this illustrious example to the fathers of their people, an example which is at least equivalent to many conquests bought by the blood of her countrys sons, it is sufficient merely to consult human nature itself, to perceive the truth of the assertion I have made.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]

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TWO:A strange consequence that flows naturally from the use of torture is, that an innocent man is thereby placed in a worse condition than a guilty one, because if both are tortured the former has every alternative against him. For either he confesses the crime and is condemned, or he is declared innocent, having suffered an undeserved punishment. But the guilty man has one chance in his favour, since, if he resist the torture firmly, and is acquitted in consequence, he has exchanged a greater penalty for a smaller one. Therefore the innocent man can only lose, the guilty may gain, by torture.
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THREE:In the second place, a large proportion of the habitual criminal class is formed of weak-minded or imbecile persons, notorious for the repeated commission of petty thefts, crimes of violence and passion, and confessed to be not amenable to the ordinary influences of self-interest or fear of punishment.[57] It is now proposed to separate this class of prisoners from others; but is punishment operative on them at all? Is not their proper place an asylum?What should we think of a government that has no other means than fear for keeping men in a country, to which they are naturally attached from the earliest impressions of their infancy? The surest way of keeping them in their country is to augment the relative welfare of each of them. As every effort should be employed to turn the balance of commerce in our own favour, so it is the greatest interest of a sovereign and a nation, that the sum of happiness, compared with that of neighbouring nations, should be greater at home than elsewhere. The pleasures of luxury are not the principal elements in this happiness, however much they may be a necessary remedy to that inequality which increases with a countrys progress, and a check upon the tendency of wealth to accumulate in the hands of a single ruler.[69]

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THREE: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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THREE:It may be asked, How far was Beccaria the first to protest against the cruelty and absurdity of torture? To this it must be replied that although actually he was not the first, he was the first to do so with effect. The difference between previous writers on the subject and Beccaria is the difference between a man whose ideas are in advance of those of his age and a man who raises the ideas of his age to a level with his[31] own. So early as the sixteenth century Montaigne, in his Essay on Conscience, had said plainly enough that the putting a man to the rack was rather a trial of patience than of truth; that pain was as likely to extort a false confession as a true one; and that a judge, by having a man racked that he might not die innocent, caused him to die both innocent and racked. Also Grevius Clivensis wrote a work whilst in prison in Amsterdam, in which he sought to prove that torture was iniquitous, fallacious, and unchristian.[17] This was published in 1624; and nearly a century later a Jesuit, Spee, wrote against the use of torture, as also against the cruel practices in force against witches.[18] And in later days Montesquieu, twenty years before Beccaria, had gone so far as to say that, since a civilised nation like England had abandoned torture without evil consequences, it was therefore unnecessary; but he followed the subject to no definite conclusion.

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[113]Lastly, a witnesss evidence is almost null when spoken words are construed into a crime. For the tone, the gesture, all that precedes or follows the different ideas attached by men to the same words, so alter and modify a mans utterances, that it is almost impossible to repeat them exactly as they were spoken. Moreover, actions of a violent and unusual character, such as real crimes are, leave their traces in the numberless circumstances and effects that flow from them; and of such actions the greater the number of the circumstances adduced in proof, the more numerous are the chances for the accused to clear himself. But words only remain in the memory of their hearers, and memory is for the most part unfaithful and often deceitful. It is on that account ever so much more easy to fix a calumny upon a mans words than upon his actions.
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