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Lord Ellenborough, on the last day but one of May 1810, appealed to their lordships to pause, before they passed the Shoplifting Bill and gave their assent to the repeal of a law which had so long been held necessary for the security of the public. No one, he insisted, was more disposed than himself to the exercise of clemency, but there was not the slightest ground for the insinuations of cruelty that had been cast on the administration of the law. If shoplifting did not require the penalty of death, the same rule would have to apply to horse- and sheep-stealing; and, in spite of all that was said in favour of this speculative humanity, they must all agree, that prevention of crime should be the chief object of the law, and that terror alone could prevent the crime in question. Those who were thus speculating in modern legislation urged that punishment should[63] be certain and proportionate; but he could satisfy the House that any attempt to apply a punishment in exact conformity to the offence would be perfectly ludicrous. He had consulted with the other judges, and they were unanimously of opinion that it would not be expedient to remit this part of the severity of the criminal law.[38] He therefore entreated them to pause.

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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.What is the political object of punishments? The intimidation of other men. But what shall we say of the secret and private tortures which the tyranny of custom exercises alike upon the guilty and the innocent? It is important, indeed, that no open crime shall pass unpunished; but the public exposure of a criminal whose crime was hidden in darkness is utterly useless. An evil that has been done and cannot be undone can only be punished by civil society in so far as it may affect others with the hope of impunity. If it be true that there are a greater number of men who either from fear or virtue respect the laws than of those who transgress them, the risk of torturing an innocent man should be estimated according to the probability that any man will have been more likely, other things being equal, to have respected than to have despised the laws.
FORE:Repression by the law seems likewise the only means of preventing that large class of actions which affect the general character and tone of a country, whilst they injuriously affect no individual in particular. The protection of creatures too feeble to protect themselves justifies, under this head, the legal punishment of cruelty to animals. It is idle to say that the law can do nothing against the average moral sense of the community, for the law is often at first the only possible lever of our moral ideas. Were it not for the law we should still bait bulls and bears, and find amusement in cock-throwing; and till the law includes hares and pigeons within the pale of protection drawn so tenderly round bulls and bears, no moral sense is likely to arise against the morbid pleasures of coursing and pigeon-shooting.

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FORE: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.Thus it has come about that, after steady opposition and fierce conflict, English law finds itself at the very point which Johnson and Goldsmith had attained a hundred years before; so true is it, as Beccaria has said, that the enlightenment of a nation is always a century in advance of its practice. The victory has conclusively been with the ultra-philosophers, as they were once called, with the speculative humanitarians, for whom good Lord Ellenborough had so honest a contempt. Paleys philosophy has long since been forgotten, and if it affords any lesson at all, it lies chiefly in a comparison between his gloomy predictions and the actual results of the changes he deprecated. The practical and professional school of law has yielded on all the most important points to the dissolving influence of Beccarias treatise; and the growing demand for increasing the security of human life by the institution[68] of a penalty, more effective because more certain, than that at present in force, points to the still further triumph of Beccarias principles, likely before long to mark the progress of his influence in England.

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FORE: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.

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FORE:But commerce and the interchange of the pleasures of luxury have this drawback, that however many persons are engaged in their production, they yet begin and end with a few, the great majority of men only enjoying the smallest share of them, so that the feeling of misery, which depends more on comparison than on reality, is not prevented. But the principal basis of this happiness I speak of is personal security and liberty under the limitations of the law; with these the pleasures of luxury favour population, and without them they become the instrument of tyranny. As the noblest wild beasts and the freest birds remove to solitudes and inaccessible forests, leaving the fertile and smiling plains to the wiles of man, so men fly from pleasures themselves when tyranny acts as their distributor.A few stories may be taken as illustrative of thousands to indicate the mischief and travesty of justice which arises from the neglect of this principle, and from the custom of making a legal inquiry into moral antecedents.

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FORE: Wise governments suffer not political idleness in the midst of work and industry. I mean by political idleness that existence which contributes nothing to society either by its work or by its wealth; which gains without ever losing; which, stupidly admired and reverenced by the vulgar, is regarded by the wise man with disdain, and with pity for the beings who are its victims; which, being destitute of that stimulus of an active life, the necessity of preserving or increasing[222] the store of worldly goods, leaves to the passions of opinion, not the least strong ones, all their energy. This kind of idleness has been confused by austere declaimers with that of riches, gathered by industry; but it is not for the severe and narrow virtue of some censors, but for the laws, to define what is punishable idleness. He is not guilty of political idleness, who enjoys the fruits of the virtues or vices of his ancestors and sells in exchange for his pleasures bread and existence to the industrious poor, who carry on peacefully the silent war of industry against wealth, instead of by force a war uncertain and sanguinary. The latter kind of idleness is necessary and useful, in proportion as society becomes wider and its government more strict.
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[153]The following especially is from Beccaria:Finally, a man who, when examined, persists in an obstinate refusal to answer, deserves a punishment[146] fixed by the laws, and one of the heaviest they can inflict, that men may not in this way escape the necessary example they owe to the public. But this punishment is not necessary when it is beyond all doubt that such a person has committed such a crime, questions being useless, in the same way that confession is, when other proofs sufficiently demonstrate guilt And this last case is the most usual, for experience proves that in the majority of trials the accused are wont to plead Not guilty.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.Any action that is not included between the two above-indicated extremes can only be called a crime or punished as such by those who find their interest in so calling it. The uncertainty of these limits has produced in different nations a system of ethics contrary to the system of laws, has produced many actual systems of laws at total variance with one another, and a quantity of laws which expose even the wisest man to the severest penalties. Consequently the words virtue and vice have become of vague and variable meaning, and from the uncertainty thus surrounding individual existence, listlessness and a fatal apathy have spread over political communities.Is death a penalty really useful and necessary for the security and good order of society?
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