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CHAPTER XXVI. CRIMES OF HIGH TREASON.

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ONE:
TWO:In those days to steal five shillings worth of goods from a shop was a capital offence, and Paley had explained the philosophy of the punishment. It would be tedious to follow the course of Romillys bill against this law, called the Shoplifting Act,[62] through the details of its history. Suffice it to say that it passed the Commons in 1810, 1811, 1813, 1816, but was regularly thrown out by the Lords, and only definitely became law many years later. But though the debates on the subject no longer possess the vivid interest that once belonged to them, and are best left to the oblivion that enshrouds them, it is instructive to take just one sample of the eloquence and arguments, that once led Lords and Bishops captive and expressed the highest legal wisdom obtainable in England. 更多 »
TWO:
TWO:
TWO:It is well known that Lord Tenterden refused ever to sit again in the House of Lords if the Reform Bill became law, and that he predicted that that measure would amount to the political extinction of the Upper House. As regards the history of our criminal law Lord Tenterden was right, for the period of long pauses had passed away, and rapid changes were made with but short intervals of breathing-time. From the year the Reform Bill passed the school of Beccaria and Bentham achieved rapid successes in England. In 1832 it ceased to be capital to steal a horse or a sheep, in 1833 to break into a house, in 1834 to return prematurely from transportation, in 1835 to commit sacrilege or to steal a letter. But[67] even till 1837 there were still 37 capital offences on the statute-book; and now there are only two, murder and treason. Hanging in chains was abolished in 1834; the pillory was wholly abolished in 1837; and the same year Ewart, after many years struggle, obtained for prisoners on trial for felony the right (still merely a nominal one)[39] of being defended by counsel.
TWO: The first class of crimesthat is, the worst, because they are the most injurious to societyare those known as crimes of high treason. Only tyranny and ignorance, which confound words and ideas of the clearest meaning, can apply this name, and consequently the heaviest punishment, to different kinds of crimes, thus rendering men, as in a thousand other cases, the victims of a word. Every crime, be it ever so private, injures society; but every crime does not aim at its immediate destruction. Moral, like physical actions, have their limited sphere of activity, and are differently circumscribed, like all the movements of nature, by time and space; and therefore only a sophistical interpretation, which is generally the philosophy of slavery, can confound what eternal truth has distinguished by immutable differences.Frederick the Great had already abolished it in Prussia;[1] it had been discontinued in Sweden; it was not recognised in the military codes of Europe, and Beccaria said it was not in use in England. This was true generally, although the peine forte et dure, by which a prisoner who would not plead was subjected to be squeezed nearly to death by an iron weight, was not abolished till the year 1771.[2]
TWO:The greater the number of those who understand and have in their hands the sacred code of the laws, the fewer will be the crimes committed; for it is beyond all doubt that ignorance and uncertainty of punishments lend assistance to the eloquence of the passions. Yet what shall we think of mankind, when we reflect, that such a condition of the laws is the inveterate custom of a large part of cultivated and enlightened Europe?
TWO:It is well known that Lord Tenterden refused ever to sit again in the House of Lords if the Reform Bill became law, and that he predicted that that measure would amount to the political extinction of the Upper House. As regards the history of our criminal law Lord Tenterden was right, for the period of long pauses had passed away, and rapid changes were made with but short intervals of breathing-time. From the year the Reform Bill passed the school of Beccaria and Bentham achieved rapid successes in England. In 1832 it ceased to be capital to steal a horse or a sheep, in 1833 to break into a house, in 1834 to return prematurely from transportation, in 1835 to commit sacrilege or to steal a letter. But[67] even till 1837 there were still 37 capital offences on the statute-book; and now there are only two, murder and treason. Hanging in chains was abolished in 1834; the pillory was wholly abolished in 1837; and the same year Ewart, after many years struggle, obtained for prisoners on trial for felony the right (still merely a nominal one)[39] of being defended by counsel.
TWO:Such was legal opinion generally as expressed by its ablest representatives with respect to the due punishment for pocket-picking not a hundred years ago. It is easy now to smile at such errors, and, at the barren waste of wisdom spent in their defence, but what weight after that can be attached, on subjects of the general policy of the law, to the opinion of its chief professors? Can it be too much regretted that Lord Chief Justice Ellenborough should have sacrificed to his own authority, whilst alive, the authority of all judges ever destined to succeed him?
TWO:CHAPTER XXXIV. OF POLITICAL IDLENESS.Romillys first idea with respect to the reform of the criminal law was a sufficiently humble one. It was nothing more than to raise the amount of the value of the property, the theft of which should expose a man to death. Twelvepence, as fixed by the statute of Elizabeth, originally signified a much greater theft than it had come to signify after a lapse of two centuries. Romilly had at first no idea of removing the death penalty for theft; his only hope was to get it affixed to a graver theft than the larceny of a shilling. Yet even so he could not bring himself to consult with the judges on the subject of his intended bill, for he had not the least hope they would approve of the measure.

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Something, however, occurred more fatal to the reform of our penal laws than even the philosophy of Paley, and that was the French Revolution. Before 1790 there had been 115 capital offences in France; so that to alter the criminal law in England was to follow a precedent of unpleasant auspices. Reform not unnaturally savoured of revolution, and especially a reform of the penal laws. In 1808 Romilly said he would advise anyone, who desired to realise the mischievous effects of the French Revolution in England to attempt some legislative reform on humane and liberal principles. With bitterness he tells the story of a young nobleman, who, addressing him insolently at the bar of the House of Commons, informed him that he for his part was for hanging all criminals. Romilly observed that he supposed he meant punishments should be certain and the laws executed, whatever they were. No, no, was the reply, it isnt that. There is no good done by mercy. They only get worse: I would hang them all up at once. And this represented the prevalent[59] opinion. Windham, in a speech against the Shoplifting Bill, inquired, Had not the French Revolution begun with the abolition of capital punishment in every case? Was such a system as this was to be set up without consideration against that of Dr. Paley![36]Such contradictions between the laws of a family and the fundamental laws of a State are a fertile[238] source of other contradictions between public and private morality, giving rise consequently to a perpetual conflict in every individual mind. For whilst private morality inspires fear and subjection, public morality teaches courage and freedom; whilst the former inculcates the restriction of well-doing to a small number of persons indiscriminately, the latter inculcates its extension to all classes of men; and whilst the one enjoins the constant sacrifice of self to a vain idol, called the good of the family (which is frequently not the good of any single member that composes it), the other teaches men to benefit themselves, provided they break not the laws, and incites them, by the reward of enthusiasm, which is the precursor of their action, to sacrifice themselves to the good of their country. Such contradictions make men scorn to follow virtue, which they find so complicated and confused, and at that distance from them, which objects, both moral and physical, derive from their obscurity. How often it happens that a man, in reflecting on his past actions, is astonished at finding himself dishonest. The larger society grows, the smaller fraction of the whole does each member of it become, and the more is the feeling of the commonwealth diminished, unless care be taken by the laws to reinforce it. Societies, like human bodies, have their circumscribed limits, extension beyond which involves inevitably a disturbance of their[239] economy. The size of a State ought apparently to vary inversely with the sensibility of its component parts; otherwise, if both increase together, good laws will find, in the very benefit they have effected, an obstacle to the prevention of crimes. Too large a republic can only save itself from despotism by a process of subdivision, and a union of the parts into so many federative republics. But how effect this, save by a despotic dictator with the courage of Sylla and as much genius for construction as he had for destruction? If such a man be ambitious, the glory of all the ages awaits him; and if he be a philosopher, the blessings of his fellow-citizens will console him for the loss of his authority, even should he not become indifferent to their ingratitude. In proportion as the feelings which unite us to our own nation are weakened, do those for the objects immediately around us gain in strength; and it is for this reason that under the severest despotism the strongest friendships are to be found, and that the family virtues, ever of an exalted character, are either the most common or the only ones. It is evident, therefore, how limited have been the views of the great majority of legislators.Torture is a certain method for the acquittal of robust villains and for the condemnation of innocent but feeble men. See the fatal drawbacks of this pretended test of trutha test, indeed, that is worthy of cannibals; a test which the Romans, barbarous as they too were in many respects, reserved for slaves alone, the victims of their fierce and too highly lauded virtue. Of two men, equally innocent or equally guilty, the robust and courageous will be acquitted, the weak and the timid will be condemned, by virtue of the following exact train of reasoning on the part of the judge: I as judge had to find you guilty of such and such a crime; you, A B, have by your physical strength been able to resist pain, and therefore I acquit you; you, C D, in your weakness have yielded to it; therefore I condemn you. I feel that a confession extorted amid torments can have no force, but I will torture you afresh unless you corroborate what you have now confessed.If I am confronted with the example of almost all ages and almost all nations who have inflicted the punishment of death upon some crimes, I will reply, that the example avails nothing before truth, against which there is no prescription of time; and that the history of mankind conveys to us the idea of an immense sea of errors, among which a few truths, confusedly and at long intervals, float on the surface.[179] Human sacrifices were once common to almost all nations, yet who for that reason will dare defend them? That some few states, and for a short time only, should have abstained from inflicting death, rather favours my argument than otherwise, because such a fact is in keeping with the lot of all great truths, whose duration is but as of a lightning flash in comparison with the long and darksome night that envelops mankind. That happy time has not yet arrived when truth, as error has hitherto done, shall belong to the majority of men; and from this universal law of the reign of error those truths alone have hitherto been exempt, which supreme wisdom has seen fit to distinguish from others, by making them the subject of a special revelation.The immortal President, Montesquieu, has treated cursorily of this matter; and truth, which is indivisible, has forced me to follow the luminous footsteps of this great man; but thinking men, for whom I write, will be able to distinguish my steps from his. Happy shall I esteem myself if, like him, I shall succeed in obtaining the secret gratitude of the unknown and peaceable followers of reason, and if I shall inspire them with that pleasing thrill of emotion with which sensitive minds respond to the advocate of the interests of humanity.When the community is one of individuals, the subordination that prevails in the family prevails by agreement, not by compulsion; and the sons, as soon as their age withdraws them from their state of natural dependence, arising from their feebleness and their need of education and protection, become free members of the domestic commonwealth, subjecting themselves to its head, in order to share in its advantages, as free men do by society at large. In the other condition the sonsthat is, the largest and most useful part of a nationare placed altogether at the mercy of their fathers; but in this one there is no enjoined connection between them, beyond that sacred and inviolable one of the natural ministration of necessary aid, and that of gratitude for benefits received, which is less often destroyed by the native wickedness of the human heart than by a law-ordained and ill-conceived state of subjection.
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