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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 men¡¯s 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.

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TWO:

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THREE:

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THREE: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.

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THREE:In the first place, our public works prisons, however excellent for their material results, are so many schools of crime, where for the one honest trade a man learns by compulsion he acquires a knowledge of three or four that are dishonest. ¡®I have become acquainted,¡¯ says a released convict, ¡®with more of what is bad and evil, together with the schemes and dodges of professional thieves and swindlers, during the four years I served the Queen for nothing, than I should have done in fifty years outside the prison walls.¡¯ ¡®The association rooms at Dartmoor are as bad as it is possible for anything to be ¡­ they are really class-rooms in the college of vice, where all are alike students and professors. The present system in most instances merely completes the man¡¯s vicious and criminal education, instead of in the slightest degree reforming him.¡¯[56] It has been attempted in various ways to obviate this difficulty, by diminishing opportunities of companionship; but the real demoralisation of prison life is probably due less to the actual contact of bad men with one another than to the deadened sense of criminality which they derive from the feeling of numbers, just as from the same cause the danger of drowning is forgotten on the ice. Prisoners in gangs lose all shame of crime, just as men in armies forget their native horror of murder.

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THREE:CHAPTER XXXV. SUICIDE AND ABSENCE.

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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 year¡¯s 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.

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THREE:There is no need to follow in further detail the life of Beccaria, for from this time to his death twenty-six years afterwards he never did nor wrote anything which again placed him conspicuously in the world¡¯s eye.[16] His time was divided between the calls of his family and his country, but even as a member of the Government he never filled any very important post nor distinguished himself in any way above his colleagues. Three years before his death he became a[28] member of a committee for the reform of the civil and criminal jurisprudence, and he and his former friend Pietro Verri lived to see many of the ideals of their youth become the actualities of their manhood, themselves helping to promote their accomplishment. It is characteristic of Beccaria that on two several occasions, when the King of Naples came to visit him in his house, he absented himself purposely from the irksomeness of an interview. So he lived to the age of fifty-six, little noticed by the world, a lover of solitude rather than of society, preferring a few friends to many acquaintances, leading a quiet and useful life, but to the last true to the philosophy he had professed in his youth, that it is better to live as a spectator of the world than as one with any direct interest in the game.

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TWO:But whether the international extradition of criminals be useful I would not venture to decide, until laws more in conformity with the needs of humanity, until milder penalties, and until the emancipation of law from the caprice of mere opinion, shall have given[194] security to oppressed innocence and hated virtue; until tyranny shall have been confined, by the force of universal reason which ever more and more unites the interests of kings and subjects, to the vast plains of Asia; however much the conviction of finding nowhere a span of earth where real crimes were pardoned might be the most efficacious way of preventing their occurrence.It would appear at first sight that there could be[71] little to say about crimes and punishments, so obvious and self-evident seem the relations that exist between them. Many people still believe in an innate sense of justice in mankind, sufficient always to prevent wide aberrations from equity. Is it, they might ask, conceivable that men should ever lose sight of the distinction between the punishment of guilt and the punishment of innocence?¡ªthat they should ever punish one equally with the other? Yet there is no country in the world which in its past or present history has not involved the relations of a criminal in the punishment inflicted on him; and in savage countries generally it is still common to satisfy justice with vengeance on some blood-relation of a malefactor who escapes from the punishment due to his crime.

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THREE: There are some crimes which, are at the same time frequent in society and yet difficult to prove, as adultery, pederasty, infanticide.

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THREE:Something, however, occurred more fatal to the reform of our penal laws than even the philosophy of Paley, and that was the French Revolution. Before 1790 there had been 115 capital offences in France; so that to alter the criminal law in England was to follow a precedent of unpleasant auspices. Reform not unnaturally savoured of revolution, and especially a reform of the penal laws. In 1808 Romilly said he would advise anyone, who desired to realise the mischievous effects of the French Revolution in England to attempt some legislative reform on humane and liberal principles. With bitterness he tells the story of a young nobleman, who, addressing him insolently at the bar of the House of Commons, informed him that he for his part was for hanging all criminals. Romilly observed that he supposed he meant punishments should be certain and the laws executed, whatever they were. ¡®No, no,¡¯ was the reply, ¡®it isn¡¯t that. There is no good done by mercy. They only get worse: I would hang them all up at once.¡¯ And this represented the prevalent[59] opinion. Windham, in a speech against the Shoplifting Bill, inquired, ¡®Had not the French Revolution begun with the abolition of capital punishment in every case?¡­ Was such a system as this was to be set up without consideration against that of Dr. Paley!¡¯[36]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:Laws should only be considered as a means of conducting mankind to the greatest happiness.

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TWO:But perhaps the best illustrations of the tendency of actions to retain the infamy, attached to them by a past condition of fanatical punishments, are the cases of suicide and child-killing. Could a Greek of the classical period, or a cultivated historian like Plutarch reappear on earth, nothing would strike him more vividly than the modern conception or recent treatment of these crimes. According to Plutarch, Lycurgus, the great Spartan lawgiver, met his death by voluntary starvation, from the persuasion that even the deaths of lawgivers should be of use to mankind, and serve them with an example of virtue and greatness; and Seneca held that it was the part of a wise man not to live as long as he could but as long as he ought. With what astonishment, then, would not Plutarch or Seneca read of recent European punishments for suicide¡ªof Lady Hales[75] losing the estate she was jointly possessed of with her husband, the Judge, because he drowned himself; of the stake and the cross-roads; of the English law which still regards suicide as murder, and condemns one of two men who in a mutual attempt at self-destruction survives the other to the punishment of the ordinary murderer! Is it possible, he would ask, that an action which was once regarded as among the noblest a man could perform, has really come to be looked upon with any other feeling than one of pity or a sad respect?Ramsay argues that the penal laws of a particular country can only be considered with reference to the needs of a particular country, and not in the abstract; that the government of a country will always enforce laws with a view to its own security; and that nothing less than a general revolution will ever make the holders of political power listen for a moment to the claims of philosophers.

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CHAPTER XXI. ASYLUMS OF REFUGE.How easily might the farseeing legislator hinder a large part of culpable bankruptcy, and relieve the misfortunes of the industrious and innocent! The public and open registration of all contracts; freedom to every citizen to consult them in well-kept documents; a public bank formed by wisely-apportioned taxes upon prosperous commerce, and intended for the timely relief of any unfortunate and innocent member of the company;¡ªsuch measures would have no real drawback and might produce numberless advantages. But easy, simple, and great laws, which await but the signal of the legislator, in order to scatter riches and strength through a nation¡ªlaws which would be celebrated from generation to generation in hymns of gratitude¡ªare either the least thought of or the least desired of all. An uneasy and petty spirit, the timid prudence of the present moment, and a circumspect stiffness against innovations, master the feelings of those who govern the complex actions of mankind.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.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 Paley¡¯s 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 Beccaria¡¯s 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.The same may be said, though for a different reason, where there are several accomplices of a crime, not all of them its immediate perpetrators. When several men join together in an undertaking, the greater its[163] risk is, the more will they seek to make it equal for all of them; the more difficult it will be, therefore, to find one of them who will be willing to put the deed into execution, if he thereby incurs a greater risk than that incurred by his accomplices. The only exception would be where the perpetrator received a fixed reward, for then, the perpetrator having a compensation for his greater risk, the punishment should be equalised between him and his accomplices. Such reflections may appear too metaphysical to whosoever does not consider that it is of the utmost advantage for the laws to afford as few grounds of agreement as possible between companions in crime.Torture, again, is employed to discover if a criminal is guilty of other crimes besides those with which he is charged. It is as if this argument were employed: ¡®Because you are guilty of one crime you may be guilty of a hundred others. This doubt weighs upon me: I wish to ascertain about it by my test of truth: the laws torture you because you are guilty, because you may be guilty, because I mean you to be guilty.¡¯

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