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If we consult the human heart we shall therein discover the fundamental principles of the real right of the sovereign to punish crimes.The very success of Beccaria��s work has so accustomed us to its result that we are apt to regard it, as men regard a splendid cathedral in their native town, with very little recognition of its claims to admiration. The work is there, they see it, they live under its shadow; they are even ready to boast of it; but[30] what to them is the toil and risk of its builders, or the care and thought of its architects? It may be said that this indifference is the very consummation Beccaria would most have desired, as it is the most signal proof of the success of his labour. So signal, indeed, has been that success, that already the atrocities which men in those days accepted as among the unalterable conditions of their existence, or resigned themselves to as the necessary safeguards of society, have become so repulsive to the world��s memory, that men have agreed to hide them from their historical consciousness by seldom reading, writing, or speaking of their existence. And this is surely a fact to be remembered with hopefulness, when we hear an evil like war with all its attendant atrocities, defended nowadays by precisely the same arguments which little more than a hundred years ago were urged on behalf of torture, but which have proved nevertheless insufficient to keep it in existence.Nor was it only in Europe that Beccaria��s influence thus prevailed, for as soon as the American Colonies had shaken off their English connection they began to reform their penal laws. When the Revolution began there were in Pennsylvania nearly twenty crimes punishable by death, and within eighteen years of its close the penal code was thoroughly transformed, it being ordained in 1794 that no crime should any longer be capital but murder in the first degree. It is true that this was but a return to the principles adopted by Penn on the settlement of the colony, but Penn��s penal code was annulled by Queen Anne, and the English Government insisted on a strict adherence to the charter from Charles II., which enjoined the retention of the Statute and the Common Law of England. When, therefore, the new Constitution was formed in 1776, the arguments of Beccaria gave fresh life to the memories of Penn.[25] Skip to main content
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FORE:But whatever tendency might have been arising in theory or in practice about this time to mitigate the severity of our laws was destined to receive a dead check from the publication in 1784 and 1785 respectively of two books which deserve historical recollection. The first was Madan��s ��Thoughts on Executive Justice,�� in which the author, adopting Beccaria��s principle of the certainty of punishment as the best check on crime, advocated an unflinching carrying out of the laws as they stood. ��It was,�� says Romilly, ��a strong and vehement censure upon the judges and the ministers for their mode of administering the law, and for the frequency of the pardons which they granted. It was very much read, and certainly was followed by the sacrifice of many lives.��

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FORE:The question, therefore, arises, Does crime depend to any appreciable extent on imprisonment at all, or on the length or shortness of sentences?

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FORE:The Chinese penal code of 1647 is probably the nearest approach to Beccaria��s conception, and nothing is more marvellous than the precision with which it apportions punishments to every shade of crime, leaving no conceivable offence, of commission or[86] omission, without its exact number of bamboo strokes, its exact pecuniary penalty, or its exact term or distance of banishment. It is impossible in this code to conceive any discretion or room for doubt left to the judicial officers beyond the discovery of the fact of an alleged crime. But what is practicable in one country is practicable in another; so that the charge so often urged against thus eliminating judicial discretion, that it is fair in theory but impossible in practice, finds itself at direct issue with the facts of actual life.

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FORE:The more cruel punishments become, the more human minds harden, adjusting themselves, like fluids, to the level of objects around them; and the ever living force of the passions brings it about, that after a hundred years of cruel punishments, the wheel frightens men only just as much as at first did the punishment of prison.

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FORE:It is remarkable that a book which has done more for law reform than any other before or since should have been written by a man who was not a lawyer by profession, who was totally unversed in legal practice, and who was only twenty-six when he attacked a system of law which had on its side all authority, living and dead. Hume was not twenty-seven when[4] he published his ��Treatise on Human Nature,�� nor was Berkeley more than twenty-six when he published his ��Principles of Human Knowledge.�� The similar precocity displayed by Beccaria is suggestive, therefore, of the inquiry, how far the greatest revolutions in the thoughts or customs of the world have been due to writers under thirty years of age.

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Another ridiculous reason for torture is the purgation from infamy; that is to say, a man judged infamous by the laws must confirm his testimony by the dislocation of his bones. This abuse ought not to be tolerated in the eighteenth century. It is believed that pain, which is a physical sensation, purges from infamy, which is merely a moral condition. Is pain, then, a crucible, and infamy a mixed impure substance? But infamy is a sentiment, subject neither to laws nor to reason, but to common opinion. Torture itself causes real infamy to the victim of it. So the result is, that by this method infamy will be taken away by the very fact of its infliction!CHAPTER XXXVI. CRIMES OF DIFFICULT PROOF. Palpable but consecrated abuses, which in many nations are the necessary results of a weak political constitution, are Secret Accusations. For they render men false and reserved, and whoever may suspect that he sees in his neighbour an informer will see in him an enemy. Men then come to mask their real feelings, and by the habit of hiding them from others they at last get to hide them from themselves. Unhappy they who have come to that; who, without clear and fixed principles to guide them, wander lost and confused in the vast sea of opinions, ever busied in saving themselves from the horrors that oppress them, with the present moment ever embittered by the uncertainty of the future, and without the lasting pleasures of quiet and security, devouring in unseemly haste those few pleasures, which occur at rare intervals in their melancholy lives and scarcely console them for the fact of having lived! Is it of such men we can hope to make intrepid soldiers, defenders of their country and crown? Is it among such men we shall find incorrupt magistrates, able with their free and patriotic eloquence to sustain and develop the true interests of their sovereign, ready, with the tribute they bear, to[143] carry to the throne the love and blessings of all classes of men, and thence to bring back to palaces and cottages alike peace and security, and that active hope of ameliorating their lot which is so useful a leaven, nay, which is the life of States?

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