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CHAPTER XXXVIII. FALSE IDEAS OF UTILITY.
ONE: It is not easy in the days of a milder administration of penal laws than a century ago the most sanguine could have dreamed of to do full justice to those who laboured, as Beccaria and his friends did, at the peril of their lives and liberties, for those very immunities which we now enjoy. We cannot conceive that it should ever have been necessary to argue against torture, or that it should have been a bold thing to do so; still less can we conceive that it should ever have had its defenders, or that men should have been contented with the sophism, that it was indeed an evil, but an evil which was necessary and inevitable.
THREE:[49]
FORE:Are torture and torments just, and do they attain the end which the law aims at?

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FORE:CHAPTER II. THE ORIGIN OF PUNISHMENTSTHE RIGHT OF PUNISHMENT.

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FORE:CHAPTER I. INTRODUCTION.

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THREE:

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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.A man cannot be called guilty before sentence has been passed on him by a judge, nor can society deprive him of its protection till it has been decided that he has broken the condition on which it was granted. What, then, is that right but one of mere might by which a judge is empowered to inflict a punishment on a citizen whilst his guilt or innocence are still undetermined? The following dilemma is no new one: either the crime is certain or uncertain; if certain, no other punishment is suitable for it than that affixed to it by law; and torture is useless, for the same reason that the criminals confession is useless. If it is uncertain, it is wrong to torture an[149] innocent person, such as the law adjudges him to be, whose crimes are not yet proved.

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  • THREE:Thus it has come about that, after steady opposition and fierce conflict, English law finds itself at the very point which Johnson and Goldsmith had attained a hundred years before; so true is it, as Beccaria has said, that the enlightenment of a nation is always a century in advance of its practice. The victory has conclusively been with the ultra-philosophers, as they were once called, with the speculative humanitarians, for whom good Lord Ellenborough had so honest a contempt. Paleys philosophy has long since been forgotten, and if it affords any lesson at all, it lies chiefly in a comparison between his gloomy predictions and the actual results of the changes he deprecated. The practical and professional school of law has yielded on all the most important points to the dissolving influence of Beccarias treatise; and the growing demand for increasing the security of human life by the institution[68] of a penalty, more effective because more certain, than that at present in force, points to the still further triumph of Beccarias principles, likely before long to mark the progress of his influence in England.

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  • THREE:Capital punishment makes an impression in prospect which, with all its force, does not fully meet that ready spirit of forgetfulness, so natural to man even in his most important concerns, and so liable to be accelerated by his passions. As a general rule, men are startled by the sight of violent sufferings, but not for long, and therefore such impressions are wont so to transform them as to make of ordinary men either Persians or Spartans; but in a free and settled government impressions should rather be frequent than strong.CHAPTER XXII. OF PROSCRIPTION.

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THREE:No law ought to be promulgated that has not force to back it, or that the nature of things deprives of validity; and as minds are ruled by opinion, which[224] itself follows the slow and indirect impressions of legislation, whilst it resists those that are direct and violent, the most salutary laws become infected with the contempt felt for useless laws, and are regarded rather as obstacles to be surmounted than as the deposit of the public welfare.CHAPTER XLII. CONCLUSION.

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FORE:CHAPTER XXXVII. OF A PARTICULAR KIND OF CRIME.

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FORE:

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FORE: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]

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FORE:There seem to be three principal reasons why, under our present system, crime still keeps its general level, irrespective of all changes in our degrees of punishment.

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THREE:Yet Lord Ellenborough was one of the best judges known to English history; he was, according to his biographer, a man of gigantic intellect, and one of the best classical scholars of his day; and if he erred, it was with all honesty and goodness of purpose. The same must be said of Lord Chief Justice Tenterdens opposition to any change in the law of forgery. His great merits too as a judge are matter of history, yet when the Commons had passed the bill for the abolition of capital punishment for forgery, Lord Tenterden[65] assured the House of Lords that they could not without great danger take away the punishment of death. When it was recollected how many thousand pounds, and even tens of thousands, might be abstracted from a man by a deep-laid scheme of forgery, he thought that this crime ought to be visited with the utmost extent of punishment which the law then wisely allowed. The House of Lords again paused in submission to judicial authority.

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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.

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FORE: 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 mens 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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THREE:But there is a still further uncertainty of punishment, for it is as well known in the criminal world as elsewhere that the sentence pronounced in court is not the real sentence, and that neither penal servitude for[96] five years nor penal servitude for life mean necessarily anything of the sort. The humanity of modern legislation insists on a remission of punishment, dependent on a convicts life in the public works prisons, in order that the element of hope may brighten his lot and perchance reform his character. This remission was at first dependent simply on his conduct, which was perhaps too generously called good where it was hard for it to be bad; now it depends on his industry and amount of work done. Yet the element of hope might be otherwise assured than by lessening the certainty of punishment, say, by associating industry or good conduct with such little privileges of diet, letter-writing, or receiving of visits, as still shed some rays of pleasure over the monotony of felon-life. It should not be forgotten, that the Commission of 1863, which so strongly advocated the remissibility of parts of penal sentences, did so in despite of one of its principal members, against no less an authority than the Lord Chief Justice, then Sir Alexander Cockburn.[55] The very fact of the remissibility of a sentence is an admission of its excessive severity; for to say that a sentence is never carried out is to say that it need never have been inflicted.
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TWO:[54]But why does this crime never entail disgrace upon its author, seeing that it is a theft against the prince, and consequently against the nation? I answer, that offences which men do not consider can be committed against themselves do not interest them enough to produce public indignation against their perpetrator. Smuggling is an offence of this character. Men in general, on whom remote consequences make very feeble impressions, do not perceive the harm that smuggling can do them, nay, often they enjoy a present advantage from it. They only perceive the injury done to the sovereign; they are not interested, therefore, in withdrawing their favour from a smuggler as much as they are in doing so from a man who commits a theft in private life, who forges a signature, or brings upon them other evils. The principle is self-evident, that every sensitive being only interests himself in the evils which he knows. This crime arises from the law itself; since the benefit it promises increases with the increase of the import duty, and therefore the temptation and the facility of committing it increases with the circumference of territory to be guarded and the small size of the prohibited wares. The penalty of losing both the prohibited goods, and whatever effects are found with them, is most just; but its efficacy will be greater in proportion as the import duty is lower, because men only incur risks relative to the advantage derivable from the prosperous issue of their undertaking.

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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. 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. Wise governments suffer not political idleness in the midst of work and industry. I mean by political idleness that existence which contributes nothing to society either by its work or by its wealth; which gains without ever losing; which, stupidly admired and reverenced by the vulgar, is regarded by the wise man with disdain, and with pity for the beings who are its victims; which, being destitute of that stimulus of an active life, the necessity of preserving or increasing[222] the store of worldly goods, leaves to the passions of opinion, not the least strong ones, all their energy. This kind of idleness has been confused by austere declaimers with that of riches, gathered by industry; but it is not for the severe and narrow virtue of some censors, but for the laws, to define what is punishable idleness. He is not guilty of political idleness, who enjoys the fruits of the virtues or vices of his ancestors and sells in exchange for his pleasures bread and existence to the industrious poor, who carry on peacefully the silent war of industry against wealth, instead of by force a war uncertain and sanguinary. The latter kind of idleness is necessary and useful, in proportion as society becomes wider and its government more strict.
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