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A cruelty consecrated among most nations by custom is the torture of the accused during his trial, on the pretext of compelling him to confess his crime, of clearing up contradictions in his statements, of discovering his accomplices, of purging him in some metaphysical and incomprehensible way from infamy, or finally of finding out other crimes of which he may possibly be guilty, but of which he is not accused.

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In a period of ten years, from 1867 to 1876, the total number of principal indictable offences committed in the metropolis against propertyand these constitute the great majority of crimeswere 117,345. But the apprehensions for these offences were only 26,426, the convictions only 19,242. In other words,[94] the chances against apprehension for such crimes as burglary or larceny are four to one in favour of the criminal, whilst the chances against his conviction and punishment are fully as high as six to one. When we thus find that only 16 per cent. of such crimes receive any punishment, the remaining 84 per cent. escaping it altogether, and that only 22 per cent. are even followed by apprehension, we shall the more admire the general efficacy of our criminal machinery, in which prevention by punishment plays so small a part.[51]
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    ONE:In proportion as punishments become milder, clemency and pardon become less necessary. Happy the nation in which their exercise should be baneful! Clemency, therefore, that virtue, which has sometimes made up in a sovereign for failings in all the other duties of the throne, ought to be excluded in a perfect system of legislation, where punishments are mild and the method of trial regular and expeditious. This truth will appear a hard one to anybody living in the present chaotic state of the criminal law, where the necessity of pardon and favours accords with the absurdity of the laws and with the severity of sentences of punishment. This right of pardon is indeed the fairest prerogative of the throne, the most desirable attribute of sovereignty; it is, however, the tacit mark of disapproval that the beneficent dispensers of the public happiness exhibit towards a code, which with all its imperfections claims in its favour the prejudice of ages, the voluminous and imposing array of innumerable commentators, the weighty apparatus of unending formalities, and the adhesion of those persons of half-learning who, though less feared than real philosophers, are really more dangerous. But let it be remembered that clemency is the virtue of[191] the maker, not of the executor, of the laws; that it should be conspicuous in the code of laws rather than in particular judgments; that the showing to men, that crimes may be pardoned and that punishment is not their necessary consequence, encourages the hope of impunity, and creates the belief that sentences of condemnation, which might be remitted and are not, are rather violent exhibitions of force than emanations of justice. What shall be said then when the sovereign grants a pardon, that is, public immunity to an individual, and when a private act of unenlightened kindness constitutes a public decree of impunity? Let the laws therefore be inexorable and their administrators in particular cases inexorable, but let the law-maker be mild, merciful, and humane. Let him found his edifice, as a wise architect, on the basis of self-love; let the general interest be the sum of the interests of each, and he will no longer be constrained, by partial laws and violent remedies to separate at every moment the public welfare from that of individuals, and to raise the appearance of public security on fear and mistrust. As a profound and feeling philosopher let him allow men, that is, his brethren, to enjoy in peace that small share of happiness which is given them to enjoy in this corner of the universe, in that immense system established by the First Cause, by Him Who Is.
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ONE: 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.
FORE: Such fatal and legalised iniquities as have been referred to have been approved of by even the wisest men and practised by even the freest republics, owing to their having regarded society rather as an aggregate[236] of families than as one of individuals. Suppose there to be 100,000 individuals, or 20,000 families, of five persons each, including its representative head: if the association is constituted by families, it will consist of 20,000 men and 80,000 slaves; if it be an association of individuals, it will consist of 100,000 citizens, and not a single slave. In the first case there will be a republic, formed of 20,000 little sovereignties; in the second the republican spirit will breathe, not only in the market-places and meetings of the people, but also within the domestic walls, wherein lies so great a part of human happiness or misery. In the first case, also, as laws and customs are the result of the habitual sentiments of the members of the republicthat is, of the heads of familiesthe monarchical spirit will gradually introduce itself, and its effects will only be checked by the conflicting interests of individuals, not by a feeling that breathes liberty and equality. Family spirit is a spirit of detail and confined to facts of trifling importance. But the spirit which regulates communities is master of general principles, overlooks the totality of facts, and combines them into kinds and classes, of importance to the welfare of the greater number. In the community of families sons remain in the power of the head of the family so long as he lives, and are obliged to look forward to his death for an existence dependent on the laws alone. Accustomed to submission and fear in the[237] freshest and most vigorous time of life, when their feelings are less modified by that timidity, arising from experience, which men call moderation, how shall they withstand those obstacles in the way of virtue which vice ever opposes, in that feeble and failing period of life when despair of living to see the fruit of their labours hinders them from making vigorous changes?

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FORE:In view of these principles it will appear strange (to anyone who does not reflect, that reason has, so to speak, never yet legislated for a nation), that it is just the most atrocious crimes or the most secret and chimerical onesthat is, those of the least probabilitywhich are proved by conjectures or by the weakest and most equivocal proofs: as if it were the interest of the laws and of the judge, not to search for the truth, but to find out the crime; as if the danger of condemning an innocent man were not so much the greater, the greater the probability of his innocence over that of his guilt.

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ONE: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? FORE:
FORE:PREFACE.

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FORE: 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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FORE:Another principle would serve admirably to draw still closer the important connection between a misdeed and its punishment, and that is, that the latter should as far as possible conform to the nature of the crime. This analogy facilitates marvellously the contrast that ought to exist between the impulse to[188] the crime and the counter-influence of the punishment, the one, that is, diverting the mind and guiding it to an end quite different from that to which the seductive idea of transgressing the law endeavours to lead it.What is the best way of preventing crimes?

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ONE:It were superfluous to enlighten the matter more thoroughly by mentioning the numberless instances of innocent persons who have confessed themselves guilty from the agonies of torture; no nation, no age, but can mention its own; but men neither change their natures nor draw conclusions. There is no man who has ever raised his ideas beyond the common needs of life but runs occasionally towards Nature, who with secret and confused voice calls him to herself; but custom, that tyrant of human minds, draws him back and frightens him.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.

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ONE:But (he goes on) since it would be an absurd folly to expect this general revolution, this general reconstruction, which could only be effected by very violent means, such as would be at least a very great misfortune for the present generation, and hold out an uncertain prospect of compensation for the next one, every speculative work, like the Dei[20] Delitti e delle Pene, enters into the category of Utopias, of Platonic Republics and other ideal governments; which display, indeed, the wit, the humanity, and the goodness of their authors, but which never have had nor ever will have any influence on human affairs.It will be said, of course, that the practice of giving increased sentences where there have been previous convictions prevails all over the world and in all[90] states of civilisation. But in that very fact lies the strength of the argument against it. By the Roman law a third case of theft, however slight, exposed a man to death.[48] By the laws of St. Louis the man who stole a thing of trifling value lost an ear the first time, a foot the second, and was hung the third. By the criminal code of Sardinia in the fifteenth century, asses were condemned to lose one ear the first time they trespassed on a field not their masters, and their second ear for a second offence. But enough of such instances. The practice is undoubtedly universal; but so at one time were ordeals and tortures. May not, then, the practice be, like them, part and parcel of a crude state of law, such as was unavoidable in its emergence to better things, but such as it is worth some effort to escape from?

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THREE:CHAPTER X. SUGGESTIVE INTERROGATIONSDEPOSITIONS.

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ONE:1. When the proofs of a fact are dependent one on anotherthat is to say, when each single proof rests on[135] the weight of some otherthen the more numerous the proofs are, the smaller is the probability of the fact in question, because the chances of error in the preliminary proofs would increase the probability of error in the succeeding ones.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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THREE:Penal laws are the expression of the moral sentiments of mankind, and either are as variable as the other. In Holland it was once a capital offence to kill a stork, and in England to cut down a mans cherry-tree. For a Roman lady to drink wine was as heinous a sin as adultery, for either of which she incurred the extreme sentence of the law. In Athens idleness was for a long time punishable; though to a Spartan an Athenian fined for idleness seemed to be punished for keeping up his dignity. In Mexico drunkenness was a graver crime than slander; for whilst the slanderer lost his ears or lips, the drunken man or woman was clubbed or stoned to death.
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ONE: I lead a tranquil and solitary life, if a select company of friends in which the heart and mind are in continual movement can be called solitude. This is my consolation, and prevents me feeling in my own country as if I were in exile.In revenges or punishments, says Hobbes, men ought not to look at the greatness of the evil past, but the greatness of the good to follow, whereby we are forbidden to inflict punishment with any other design than for the correction of the offender and the admonition of others. And over and over again the same thing has been said, till it has come to be a commonplace in the philosophy of law, that the object of punishment is to reform and deter. As was once said by a great legal authority, We do not hang you because you stole a horse, but that horses may not be stolen.[42] Punishment by this theory is a means to an end, not an end in itself.

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A cruelty consecrated among most nations by custom is the torture of the accused during his trial, on the pretext of compelling him to confess his crime, of clearing up contradictions in his statements, of discovering his accomplices, of purging him in some metaphysical and incomprehensible way from infamy, or finally of finding out other crimes of which he may possibly be guilty, but of which he is not accused.

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In a period of ten years, from 1867 to 1876, the total number of principal indictable offences committed in the metropolis against propertyand these constitute the great majority of crimeswere 117,345. But the apprehensions for these offences were only 26,426, the convictions only 19,242. In other words,[94] the chances against apprehension for such crimes as burglary or larceny are four to one in favour of the criminal, whilst the chances against his conviction and punishment are fully as high as six to one. When we thus find that only 16 per cent. of such crimes receive any punishment, the remaining 84 per cent. escaping it altogether, and that only 22 per cent. are even followed by apprehension, we shall the more admire the general efficacy of our criminal machinery, in which prevention by punishment plays so small a part.[51]

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Given the necessity of the aggregation of mankind, and given the covenants which necessarily result from the very opposition of private interests, a scale of offences may be traced, beginning with those which tend directly to the destruction of society, and ending with acts of the smallest possible injustice committed against individual members of it. Between these extremes are comprised all the actions opposed to the public welfare which are called crimes, and which by imperceptible degrees decrease in enormity from the highest to the lowest. If the infinite and obscure combinations of human actions admitted of mathematical treatment, there ought to be a corresponding scale of punishments, varying from the severest to the slightest penalty. If there were an exact and universal scale of crimes and punishments, we should have an approximate and general test by[199] which to gauge the degrees of tyranny and liberty in different governments, the relative state of the humanity or wickedness of different nations. But the wise legislator will rest satisfied with marking out the principal divisions in such a scale, so as not to invert their order, nor to affix to crimes of the first degree punishments due to those of the last. False ideas of utility entertained by legislators are one source of errors and injustice. It is a false idea of utility which thinks more of the inconvenience of individuals than of the general inconvenience; which tyrannises over mens feelings, instead of arousing them into action; which says to Reason, Be thou subject. It is a false idea of utility which sacrifices a thousand real advantages for one imaginary or trifling drawback; which would deprive men of the use of fire because it burns or of water because it drowns; and whose only remedy for evils is the entire destruction of their causes. Of such a kind are laws prohibiting the wearing of arms, for they only disarm those who are not inclined nor resolved to commit crimes, whilst those who have the courage to violate the most sacred laws of humanity, the most important in the law-code, are little likely to be induced to respect those lesser and purely arbitrary laws, which are easier to contravene with impunity; and the strict observance of which would imply the destruction of all personal liberty, (that liberty dearest to the enlightened legislator and to men generally,) subjecting the innocent to vexations[234] which only the guilty deserve. These laws, whilst they make still worse the position of the assailed, improve that of their assailants; they increase rather than diminish the number of homicides, owing to the greater confidence with which an unarmed man may be attacked than an armed one. They are not so much preventive of crimes as fearful of them, due as they are to the excitement roused by particular facts, not to any reasoned consideration of the advantages or disadvantages of a general decree. Again, it is a false idea of utility, which would seek to impart to a multitude of intelligent beings the same symmetry and order that brute and inanimate matter admits of; which neglects present motives, the only constantly powerful influences with the generality of men, to give force to remote and future ones, the impression of which is very brief and feeble, unless a force of imagination beyond what is usual makes up, by its magnifying power, for the objects remoteness. Lastly, it is a false idea of utility, which, sacrificing the thing to the name, distinguishes the public good from that of every individual member of the public. There is this difference between the state of society and the state of nature, that in the latter a savage only commits injuries against others with a view to benefit himself, whilst in the former state men are sometimes moved by bad laws to injure others without any corresponding benefit to themselves. The tyrant casts[235] fear and dread into the minds of his slaves, but they return by repercussion with all the greater force to torment his own breast. The more confined fear is in its range, so much the less dangerous is it to him who makes it the instrument of his happiness; but the more public it is and the larger the number of people it agitates, so much the more likely is it that there will be some rash, some desperate, or some clever and bold man who will try to make use of others for his own purpose, by raising in them hopes, that are all the more pleasant and seductive as the risk incurred in them is spread over a greater number, and as the value attached by the wretched to their existence diminishes in proportion to their misery. This is the reason why offences ever give rise to fresh ones: that hatred is a feeling much more durable than love, inasmuch as it derives its force from the very cause that weakens the latter, namely, from the continuance of the acts that produce it.
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