TWO:Where there is no capital punishment, as in Michigan, a mans innocence may be discovered subsequently to conviction, and justice done to him for the error of the law. Such a case actually happened not long ago in Michigan, where a prisoners innocence[41] was clearly proved after ten years imprisonment. Where capital punishment exists, there is no such hope; nor is there any remedy if, as in the case of Lewis, who was hung in 1831, another man thirty-three years afterwards confesses himself the murderer. It is impossible to preclude all chances of such errors of justice. Illustrative of this is the story of the church organist near Kieff, who murdered a farmer with a pistol he stole from a priest. After his crime he placed the pistol in the sacristy, and then, when he had prevented the priest from giving evidence against him by the act of confession, went and denounced the priest as the culprit. The priest, in spite of his protestations of innocence, was sentenced to hard labour for life; and when, twenty years afterwards, the organist confessed his guilt on his deathbed, and the priests liberation was applied for, it was found that he had died only a few months before.[26] Our laws prohibit suggestive (leading) questions in a lawsuit: those, that is (according to the doctors of law), which, instead of applying, as they should do,[145] to the genus in the circumstances of a crime, refer to the species; those, in other words, which from their immediate connection with a crime suggest to the accused a direct answer. Questions, according to the criminal lawyers, ought, so to speak, to envelop the main fact spirally and never to attack it in a direct line. The reasons for this method are, either that an answer may not be suggested to the accused which may place him face to face with the charge against him, or perhaps because it seems unnatural for him directly to criminate himself. But, whichever of these reasons it may be, the contradiction is remarkable between the existence of such a custom and the legal authorisation of torture; for what interrogatory can be more suggestive than pain? The former reason applies to the question of torture, because pain will suggest to a strong man obstinate silence, in order that he may exchange the greater penalty for the lesser, whilst it will suggest to a weak man confession, in order that he may escape from present torment, which has more influence over him than pain which is to come. The other reason evidently applies too, for if a special question leads a man to confess against natural right, the agonies of torture will more easily do the same. But men are more governed by the difference of names than by that of things.
TWO: There was a time when nearly all penalties were pecuniary. Mens crimes were the princes patrimony; attempts against the public safety were an object of gain, and he whose function it was to defend it found his interest in seeing it assailed. The object of punishment was then a suit between the treasury, which exacted the penalty, and the criminal: it was a civil business, a private rather than a public dispute, which conferred upon the treasury other rights than those conferred upon it by the calls of the public defence, whilst it inflicted upon the offender other grievances than those he had incurred by the necessity of example. The judge was, therefore, an advocate for the treasury rather than an impartial investigator of the truth, an agent for the Chancellor of the Exchequer rather than the protector and minister of the laws. But as in this system to confess a fault was the same thing as to confess oneself a debtor to the treasury, that being the object of the criminal procedure in those days, so the confession of a crime, and a confession so managed as to favour and not to hurt fiscal interests, became and still remains (effects always outlasting their causes so long) the centre[241] point of all criminal procedure. Without such confession a criminal convicted by indubitable proofs will incur a penalty less than the one legally attached to his crime; and without it he will escape torture for other crimes of the same sort which he may have committed. With it, on the other hand, the judge becomes master of a criminals person, to lacerate him by method and formality, in order to get from him as from so much stock all the profit he can. Given the fact of the crime as proved, confession affords a convincing proof; and, to make this proof still less open to doubt, it is forcibly exacted by the agonies and despair of physical pain; whilst at the same time a confession that is extra-judicial, that is tendered calmly and indifferently, and without the overpowering fears of a trial by torture, is held insufficient for a verdict of guilt. Inquiries and proofs, which throw light upon the fact, but which weaken the claims of the treasury, are excluded; nor is it out of consideration for his wretchedness and weakness that a criminal is sometimes spared from torture, but out of regard for the claims which this entity, now mythical and inconceivable, might lose. The judge becomes the enemy of the accused, who stands in chains before him, the prey of misery, of torments, and the most terrible future; he does not seek to find the truth of a fact, but to find the crime in the prisoner, trying to entrap him, and thinking it to the loss of his own[242] credit if he fail to do so, and to the detriment of that infallibility which men pretend to possess about everything. The evidence that justifies a mans imprisonment rests with the judge; in order that a man may prove himself innocent, he must first be declared guilty: that is called an offensive prosecution; and such are criminal proceedings in nearly every part of enlightened Europe, in the eighteenth century. The real prosecution, the informative onethat is, the indifferent inquiry into a fact, such as reason enjoins, such as military codes employ, and such as is used even by Asiatic despotism in trivial and unimportant casesis of very scant use in the tribunals of Europe. What a complex maze of strange absurdities, doubtless incredible to a more fortunate posterity! Only the philosophers of that time will read in the nature of man the possible actuality of such a system as now exists.As to the obscurity you find in the work, I heard, as I wrote, the clash of chains that superstition still shakes, and the cries of fanaticism that drown the voice of truth; and the perception of this frightful spectacle induced me sometimes to veil the truth in clouds. I wished to defend truth, without making myself her martyr. This idea of the necessity of obscurity has made me obscure sometimes without necessity. Add to this my inexperience and my want of practice in writing, pardonable in an author of twenty-eight,[3] who only five years ago first set foot in the career of letters.
TWO:The recognition of this regulation of resentment as the main object of punishment affords the best test for measuring its just amount. For that amount will be found to be just which is necessary; that is to say, which just suffices for the object it aims atthe satisfaction of general or private resentment. It must be so much, and no more, as will prevent individuals from preferring to take the law into their own hands[84] and seeking to redress their own injuries. This degree can only be gathered from experience, nor is it any real objection to it, that it must obviously be somewhat arbitrary and variable. Both Wladimir I., the first Christian Czar of Russia, and Wladimir II. tried the experiment of abolishing capital punishment for murder; but the increase of murders by the vendetta compelled them to fall back upon the old modes of punishment.[46] Some centuries later the Empress Elizabeth successfully tried the same experiment, without the revival of the vendetta, the state of society having so far altered that the relations of a murdered man no longer insisted on the death of his murderer. But had Elizabeth abolished all legal punishment for murderhad she, that is, allowed no public vendetta of any kindundoubtedly the vendetta would have become private again.
TWO:The chief honour of the earliest attempt at law reform belongs to Sir William Meredith, who in 1770 moved for a committee of inquiry into the state of the criminal laws. This committee proposed in its report of the following year the repeal of a few Acts which made certain offences capital; and accordingly the Commons in 1772 agreed, that it should no longer be punishable as high treason to make an attempt on the life of a Privy Councillor, that desertion of officers or soldiers should no longer be capital, nor the belonging to people who called themselves Egyptians. Some other proposals were negatived, such as a repeal of the hard law of James I. against infanticide; but the House of Lords refused their assent even to the slight changes passed by the Commons. It was an innovation, they said, and subversion of the law.[34][53] It is no reproach to Meredith, Burke, and Fox that they ceased to waste their strength against Conservatism such as this. All hope of reform was out of the question; and the most dreadful atrocities were suffered or defended. In 1777 a girl of 14 lay in Newgate under sentence to be burnt alive for false coinage, because some whitewashed farthings, that were to pass for sixpences, were found on her person; and a reprieve only came just as the cart was ready to take her to the stake. Not till 1790 was the law abolished by which women were liable to be burnt publicly for high or petit treason.[35]If blind ignorance is less pernicious than confused half-knowledge, since the latter adds to the evils of ignorance those of error, which is unavoidable in a narrow view of the limits of truth, the most precious gift that a sovereign can make to himself or to his people is an enlightened man as the trustee and guardian of the sacred laws. Accustomed to see the truth and not to fear it; independent for the most part of the demands of reputation, which are never completely satisfied and put most mens virtue to a trial; used to consider humanity from higher points of view; such a man regards his own nation as a family of men and of brothers, and the distance between the nobles and the people seems to him so[249] much the less as he has before his mind the larger total of the whole human species. Philosophers acquire wants and interests unknown to the generality of men, but that one above all others, of not belying in public the principles they have taught in obscurity, and they gain the habit of loving the truth for its own sake. A selection of such men makes the happiness of a people, but a happiness which is only transitory, unless good laws so increase their number as to lessen the probability, always considerable, of an unfortunate choice.
