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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.

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An error, not less common than it is contrary to the object of societythat is, to the consciousness of personal securityis leaving a magistrate to be the arbitrary executor of the laws, free at his pleasure to imprison a citizen, to deprive a personal enemy of his liberty on frivolous pretexts, or to leave a friend unpunished in spite of the strongest proofs of his guilt. Imprisonment is a punishment which, unlike every other, must of necessity precede the declaration of guilt; but this distinctive character does not deprive it of the other essential of punishment, namely, that the law alone shall determine the cases under which it shall be merited. It is for the law, therefore, to point out the amount of evidence of a crime which shall justify the detention of the accused, and his subjection to examination and punishment. For such detention there may be sufficient proofs in common[133] report, in a mans flight, in a non-judicial confession, or in the confession of an accomplice; in a mans threats against or constant enmity with the person injured; in all the facts of the crime, and similar indications. But these proofs should be determined by the laws, not by the judges, whose decisions, when they are not particular applications of a general maxim in a public code, are always adverse to political liberty. The more that punishments are mitigated, that misery and hunger are banished from prisons, that pity and mercy are admitted within their iron doors, and are set above the inexorable and hardened ministers of justice, the slighter will be the evidences of guilt requisite for the legal detention of the suspected. The good faith of contracts and the security of commerce compel the legislator to assure to creditors the persons of insolvent debtors. But I think it important to distinguish the fraudulent from the innocent bankrupt, the former of whom should receive the same punishment as that assigned to false coiners, since it is no greater crime to falsify a piece of coined money, the pledge of mens mutual[217] obligations, than to falsify those obligations themselves. But the innocent bankrupthe who, after a searching inquiry, has proved before his judges that the wickedness or misfortune of some one else, or the inevitable vicissitudes of human prudence, have despoiled him of his substancefor what barbarous reason ought such an one to be thrown into prison, and deprived of the only poor benefit that remains to him, a barren liberty, in order to suffer the agonies of the really guilty, and, in despair at his ruined honesty, to repent perhaps of that innocence, by which he lived peacefully under the protection of those laws that it was not in his power not to offend against? Laws, too, dictated by the powerful by reason of their rapacity, and endured by the feeble by reason of that hope, which generally glimmers in the human heart, and leads us to believe that unfavourable contingencies are reserved for others, favourable ones for ourselves! Men left to their natural feelings love cruel laws, however much, as subject to them themselves, it might be for their individual interest that they should be mitigated; because their fear of being injured by others is greater than their desire to inflict injuries themselves.
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THREE:In methods of trial the use of torture is contrary to sound reason. Humanity cries out against the practice and insists on its abolition.
THREE:But although the laws of every country thus recognise in different degrees the retributive nature of punishment, by their constant attention to its apportionment to crime, there is another corollary of the desirability of a just proportion between the two, which has never been, nor is ever likely to be, accepted: namely, that from the point of view of the public interest, which in theory is the only legal view, it is no mitigation of a crime that it is a first offence, nor any aggravation of one that it is the second.
ONE:Beccaria entertains a similar despair of truth. The history of mankind represents a vast sea of errors, in which at rare intervals a few truths only float uppermost; and the durability of great truths is as that of a flash of lightning when compared with the long[9] and dark night which envelops humanity. For this reason he is ready to be the servant of truth, not her martyr; and he recommends in the search for truth, as in the other affairs of life, a little of that philosophical indolence which cares not too much about results, and which a writer like Montaigne is best fitted to inspire.[6]The necessity of remedying the disorders caused by the physical despotism of each man singly produced the first laws and the first magistrates; this was the end and object of the institution of societies, and this end has always been maintained, either in reality or appearance, at the head of all codes, even of those that operated otherwise. But the closer contact of men with one another and the progress of their knowledge brought about an endless series of mutual actions and needs, which ever lay beyond the foresight of the laws and below the actual power of individuals. From this epoch began the despotism of opinion, which afforded the only means for obtaining from others those benefits and averting those evils, for which the laws failed to provide. It is this opinion that is the trouble equally of the wise man and the fool; that has raised the semblance of virtue to higher credit than virtue itself; that even makes the rascal turn missionary, because he finds his own[211] interest therein. Hence the favour of men became not only useful but necessary, if a man would not fall below the general level. Hence, not only does the ambitious man seek after such favour as useful to himself, and the vain man go begging for it as a proof of his merit, but the man of honour also may be seen to require it as a necessity. This honour is a condition that very many men attach to their own existence. Born after the formation of society, it could not be placed in the general deposit; it is rather a momentary return to the state of nature, a momentary withdrawal of ones self from the dominion of those laws which, under the circumstances, fail to afford the sufficient defence required of them.
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BY: ADMIN | 05.01.2013

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BY: ADMIN | 05.01.2013

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THREE:A farm labourer, with a wife and four children, and earning eleven shillings a week, was imprisoned in the county gaol for two months for the theft of a pound of butter. Soon after his release sickness entered his home, and to supply his childrens wants[89] he again yielded to temptation and stole twelve ducks eggs. For this he was sentenced to seven years penal servitude; or rather not for this theft, but because he had already incurred a severe punishment for a theft of some butter. The sentence was most perfectly lawful, but was it not perfectly unjust?Penalties of infamy ought neither to be too common, nor to fall upon too many persons at a time; not too common, because the real and too frequent effects of matters of opinion weaken the force of opinion itself; not too general, because the disgrace of many persons resolves itself into the disgrace of none of them.

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THREE:Torture, again, is inflicted upon an accused man in order to discover his accomplices in crime. But if it is proved that it is not a fitting method for the discovery of truth, how will it serve to disclose accomplices, which is part of the truth to be discovered? As if a man who accuses himself would not more readily accuse others. And is it just to torment men for the crimes of others? Will not the accomplices be disclosed from the examination of the witnesses and of the accused, from the proofs and whole circumstances of the crime; in sum, from all those very means which should serve to convict the accused himself of guilt? Accomplices generally fly immediately after the capture of a companion; the uncertainty[155] of their lot of itself condemns them to exile, and frees the country from the danger of fresh offences from them; whilst the punishment of the criminal who is caught attains its precise object, namely, the averting of other men by terror from a similar crime.CHAPTER XXIII. PROPORTION BETWEEN CRIMES AND PUNISHMENTS.

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THREE:A still greater honour was the commentary written by Voltaire. The fact that only within a few miles of his own residence a girl of eighteen had been hung for the exposure of a bastard child led Voltaire to welcome Beccarias work as a sign that a period of softer manners and more humane laws was about to dawn upon the worlds history. Should not a people, he argues, who like the French pique themselves on their politeness also pride themselves on their humanity? Should they retain the use of torture, merely because it was an ancient custom, when the experience of England and other countries showed that crimes were not more numerous in countries where it was not in use, and when reason indicated the absurdity of inflicting on a man, before his condemnation, a punishment more horrible than would await his proved guilt? What could be more cruel, too, than the maxim of law that a man who forfeited his life forfeited his estates? What more inhuman than thus to punish a whole family for the crime of an individual, perhaps condemning a wife[14] and children to beg their bread because the head of the family had harboured a Protestant preacher or listened to his sermon in a cavern or a desert? Amid the contrariety of laws that governed France, the object of the criminal procedure to bring an accused man to destruction might be said to be the only law which was uniform throughout the country.

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THREE:Men of letters as a rule did not speak with this boldness, but in conscious opposition to professional and popular feeling expressed their doubts with a hesitation that was almost apologetic. So, for example,[50] Goldsmith could not avoid even questioning the validity of that right which social combinations have assumed of capitally punishing offences of a slight nature.[31] Strange, that in England such an argument should ever have seemed a daring novelty, a thing to be said tentatively and with reserve!CHAPTER XVII. BANISHMENT AND CONFISCATIONS.

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Even inanimate objects or animals it has been thought through many ages reasonable to punish. In Athens an axe or stone that killed anyone by accident was cast beyond the border; and the English law was only repealed in the present reign which made a cartwheel, a tree, or a beast, that killed a man, forfeit to the State for the benefit of the poor. The Jewish law condemned an ox that gored anyone to death to be stoned, just as it condemned the human murderer. And in the middle ages pigs, horses, or oxen were not only tried judicially like men, with counsel on either side and witnesses, but they were hung on gallows like men, for the better deterrence of their kind in future.[41]Torture, again, is inflicted upon an accused man in order to discover his accomplices in crime. But if it is proved that it is not a fitting method for the discovery of truth, how will it serve to disclose accomplices, which is part of the truth to be discovered? As if a man who accuses himself would not more readily accuse others. And is it just to torment men for the crimes of others? Will not the accomplices be disclosed from the examination of the witnesses and of the accused, from the proofs and whole circumstances of the crime; in sum, from all those very means which should serve to convict the accused himself of guilt? Accomplices generally fly immediately after the capture of a companion; the uncertainty[155] of their lot of itself condemns them to exile, and frees the country from the danger of fresh offences from them; whilst the punishment of the criminal who is caught attains its precise object, namely, the averting of other men by terror from a similar crime.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 suicideof 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?There is a remarkable contradiction between the civil laws, which set so jealous and supreme a guard upon individual life and property, and the laws of so-called honour, which set opinion above everything. This word honour is one of those that have served as the basis for long and brilliant argumentations, without any fixed or permanent idea being attached to it. How miserable is the condition of human minds, more distinctly cognisant of the remotest and least important ideas about the movements of the heavenly bodies, than of those near and important moral notions, which are ever fluctuating and confused, according as the winds of passion impel them and a well-guided ignorance receives and transmits them! But the seeming paradox will vanish, if one considers, that, as objects become confused when too near the eyes, so the too great propinquity of moral ideas easily causes the numerous simple ideas which compose them to become blended together, to the confusion of those clear lines of demarcation demanded by the geometrical spirit, which would fain measure exactly the phenomena of human sensibility. And the wonder will vanish altogether from the impartial student of human affairs, who will suspect that so great a moral machinery and so many restraints are perchance not needed, in order to render men happy and secure.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.But punishment bears much the same relation to crime in the country at large that it does in the metropolis. Let one year be taken as a fair sample of all. The total number of indictable offences of all kinds reported to the police in 1877-8 was 54,065. For these offences only 24,062 persons were apprehended. Of these latter only 16,820 were held to bail or committed for trial; and of these again 12,473 were convicted and punished.[52] So that, though the proportion of convictions to the number of prisoners who come to trial is about 75 per cent., the proportion of convictions, that is, of punishments, to the number of crimes committed is so low as 23 per cent. Of the 54,065 crimes reported to the police in one year 41,592 were actually committed with impunity; and[95] thus the proportion which successful crime of all sorts bears to unsuccessful is rather more than as four to one.[53] So that there is evident truth in what a good authority has said: Few offences comparatively are followed by detection and punishment, and with a moderate degree of cunning an offender may generally go on for a long time with but feeble checks, if not complete impunity.[54]
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