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But, in spite of the liberalism of the Count, the penal laws and customs of Lombardy remained the same; and the cruel legal procedure by torture existed still, untouched by the salutary reforms effected in other departments of the Government. There was the preparatory torture, to extort confession from criminals not yet condemned; there was torture for the discovery of a criminals accomplices; and there was the extraordinary or greater torture, which preceded the execution of a sentence of death. It is true that torture could only be applied to crimes of a capital nature, but there was scarcely an act in the possible category of crimes that was not then punishable with death. Proofs of guilt were sought almost entirely from torture and secret accusations, whilst penalties depended less on the text of any known law than on the discretionthat is, on the capriceof the magistrate.

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They who have thought that the criminals intention was the true measure of crimes were in the wrong. For the intention depends on the actual impression of things upon a man, and on his precedent mental disposition, things which vary in all men and in each man, according to the very rapid succession of his ideas, his passions, and his circumstances. It would, therefore, be necessary to form not only a particular code for each citizen, but a fresh law for every crime. Sometimes with the best intentions men do the greatest evil to society; and sometimes with the very worst they do it the greatest good.Divine justice and natural justice are in their essence immutable and constant, because the relation between similar things is always the same; but human or political justice, being nothing more than a relation between a given action and a given state of society, may vary according as such action becomes necessary or useful to society; nor is such justice easily discernible, save by one who analyses the complex and very changeable relations of civil combinations. When once these principles, essentially distinct, become confused, there is no more hope of sound reasoning about public matters. It appertains to the theologian to fix the boundaries between the just and the unjust, in so far as regards the intrinsic goodness or wickedness of an act; to fix the relations between the politically just and unjust appertains to the publicist; nor can the one object cause any detriment to the other, when it is obvious how the virtue that is purely political ought to give place to that immutable virtue which emanates from God.
THREE:CHAPTER XXXV. SUICIDE AND ABSENCE.
FORE:
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FORE:Another way of preventing crimes is to interest the magistrates who carry out the laws in seeking rather to preserve than to corrupt them. The greater the number of men who compose the magistracy, the less danger will there be of their exercising any undue power over the laws; for venality is more difficult among men who are under the close observation of one another, and their inducement to increase their individual authority diminishes in proportion to the smallness of the share of it that can fall to each of them, especially when they compare it with the risk of the attempt. If the sovereign accustoms his subjects, by formalities and pomp, by severe edicts, and by refusal to hear the grievances, whether just or unjust, of the man who thinks himself oppressed, to fear rather the magistrates than the[250] laws, it will be more to the profit of the magistrates than to the gain of private and public security.

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FORE:

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FORE:

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THREE: Whosoever disturbs the public peace, or obeys not the laws, that is, the conditions under which men bear with and defend one another, ought to be excluded from society, that is, to be banished from it.
  • FORE:In every criminal case a judge ought to form a complete syllogistic deduction, in which the statement of the general law constitutes the major premiss; the conformity or non-conformity of a particular action with the law, the minor premiss; and acquittal or punishment, the conclusion. When a judge is obliged, or of his own accord wishes, to make even no more than two syllogisms, the door is opened to uncertainty.

    Vero eos et accusamus et iusto odio dignissimos ducimus

    FORE:

    Vero eos et accusamus et iusto odio dignissimos ducimus

    FORE:It was by the advice of Scarlett, Lord Abinger, that he ventured to aim at the repeal of all statutes punishing mere theft with death; but, deeming it hopeless to urge their abolition all at once, he resolved to begin with that famous statute of Elizabeth which made it a capital crime to steal a handkerchief or anything else from the person of another which was of the value of a shilling. His bill to effect this[60] passed both Houses the same year it was introduced (1808), in spite of the strong opposition of the great legal dignitaries in either House. The statute was based, said Judge Burton, on the experience of two and a half centuries. The alternative punishment of transportation for seven years, said the Attorney-General, would be too short; it should be for more years than seven, if not for life. If any change of punishment were necessary, said Lord Ellenborough, it should be transportation for life.

    Vero eos et accusamus et iusto odio dignissimos ducimus

  • FORE:There was only one offence which Paley thought the English law punished too severely, and that was the offence of privately stealing from the person. In all other cases he defended the application of the capital penalty. It was, he thought, the peculiar merit of the English law that it swept into the net every crime which under any possible circumstance might merit death, whilst it only singled out a few[56] cases in each class of crime for actual punishment; so that whilst few really suffered death, the dread and danger of it hung over the crimes of many. The law was not cruel, for it was never meant to be indiscriminately executed, but left a large margin for the exercise of mercy.

    odioero eos et accusamus et iusto dignissimos ducimus

    FORE:Banishment, it would seem, should be employed[181] in the case of those against whom, when accused of an atrocious crime, there is a great probability but not a certainty of guilt; but for this purpose a statute is required, as little arbitrary and as precise as possible, condemning to banishment any man who shall have placed his country in the fatal dilemma of either fearing him or of injuring him, leaving him, however, the sacred right of proving his innocence. Stronger reasons then should exist to justify the banishment of a native than of a foreigner, of a man criminated for the first time than of one who has been often so situated.

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THREE: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?that 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.CHAPTER XV. THE MILDNESS OF PUNISHMENTS.

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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?Pederasty, so severely punished by the laws, and so readily subjected to the tortures that triumph over innocence, is founded less on the necessities of man, when living in a state of isolation and freedom, than on his passions when living in a state of society and slavery. It derives its force not so much from satiety of pleasure as from the system of education now in vogue, which, beginning by making men useless to themselves in order to make them useful to others, causes, by its too strict seclusion, a waste of all vigorous development, and accelerates the approach of old age.

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The most successful adoption of Beccarias principles of punishment occurred in Tuscany, under the Grand Duke Leopold. When he ascended the ducal throne, the Tuscans were the most abandoned people of all Italy. Robberies and murders were none the less frequent for all the gallows, wheels, and tortures which were employed to repress them. But Leopold in 1786 resolved to try Beccarias plan, for which purpose he published a code, proportioning punishments to crimes, abolishing mutilation and torture, reducing the number of acts of treason, lessening confiscations, destroying the right of asylum, and above all abolishing capital punishment even for murder. The result was, says a contemporary, that Tuscany, from having been the land of the greatest crimes and villanies, became the best ordered State of Europe.[22] During twenty years only five murders were committed in Tuscany, whilst at Rome, where death continued to be inflicted with great pomp, as[36] many as sixty were committed within the space of three months.[23]CHAPTER XXIII. PROPORTION BETWEEN CRIMES AND PUNISHMENTS.Men oppose the strongest barriers against open tyranny, but they see not the imperceptible insect, which gnaws them away, and makes for the invading stream an opening that is all the more sure by very reason of its concealment from view. Men for the most part leave the regulation of their chief concerns to the prudence of the moment, or to the discretion of those whose interest it is to oppose the wisest laws; such laws, namely, as naturally help to diffuse the benefits of life, and check that tendency they have to accumulate in the hands of a few, which ranges on one side the extreme of power and happiness, and on the other all that is weak and wretched. It is only, therefore, after having passed through a thousand errors in matters that most nearly touch their lives and liberties, only after weariness of evils that have been suffered to reach a climax, that men are induced to seek a remedy for the abuses which oppress them, and to recognise the clearest truths, which, precisely on account of their simplicity, escape the notice of ordinary minds, unaccustomed as they are to analyse things, and apt to receive their impressions anyhow, from tradition rather than from inquiry.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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