ONE:A farm labourer, with a wife and four children, and earning eleven shillings a week, was imprisoned in the county gaol for two months for the theft of a pound of butter. Soon after his release sickness entered his home, and to supply his childrens wants[89] he again yielded to temptation and stole twelve ducks eggs. For this he was sentenced to seven years penal servitude; or rather not for this theft, but because he had already incurred a severe punishment for a theft of some butter. The sentence was most perfectly lawful, but was it not perfectly unjust? Some remnants of the laws of an ancient conquering people, which a prince who reigned in Constantinople some 1,200 years ago caused to be compiled, mixed up afterwards with Lombard rites and packed in the miscellaneous volumes of private and obscure commentatorsthese are what form that set of traditional opinions which from a great part of Europe receive nevertheless the name of laws; and to this day it is a fact, as disastrous as it is common, that some opinion of Carpzovius, some old custom pointed out by Clarus, or some form of torture suggested in terms of complacent ferocity by Farinaccius, constitute the laws, so carelessly followed by those, who in all trembling ought to exercise their government over the lives and fortunes of men. These laws, the dregs of the most barbarous ages, are examined in this book in so far as regards criminal jurisprudence, and I have dared to expose their faults to the directors of the public happiness in a style which may keep at[112] a distance the unenlightened and intolerant multitude. The spirit of frank inquiry after truth, of freedom from commonplace opinions, in which this book is written, is a result of the mild and enlightened Government under which the Author lives. The great monarchs, the benefactors of humanity, who are now our rulers, love the truths expounded, with force but without fanaticism, by the obscure philosopher, who is only roused to indignation by the excesses of tyranny, but is restrained by reason; and existing abuses, for whosoever well studies all the circumstances, are the satire and reproach of past ages, and by no means of the present age or of its lawgivers.
TWO:If pleasure and pain are the motors of sensitive beings, if the invisible lawgiver of humanity has decreed rewards and punishments as one of the motives to impel men to even their noblest endeavours, the inexact distribution of these motives will give rise to that contradiction, as little noticed as it is of common occurrence, namely, that the laws punish crimes which are entirely of their own creation. If an equal penalty is attached to two crimes of unequal injury to society, the greater crime of the two, if it promise a greater advantage than the other, will have no stronger motive in restraint of its perpetration.[197] Whoever, for example, sees the same punishment of death decreed for the man who kills a pheasant and the man who slays his fellow or falsifies an important document, will draw no distinction between such crimes; and thus moral sentiments, the product only of many ages and of much bloodshed, the slowest and most difficult attainment of the human mind, dependent, it has been thought, on the aid of the most sublime motives and on a parade of the gravest formalities, will be destroyed and lost.One thing that might be done, which would also serve at the same time to keep a prisoners family from want, the main source of crime, would be the formation of a Prisoners Fund, for his and their benefit. For this there is a precedent in a quite recent Act. For the Act, which abolished the forfeiture of a felons property, enabled the Crown to appoint an administrator of it, for the benefit of the persons injured by the crime and the felons family, the property itself and its income reverting ultimately to the convict or to his representatives. There could, however, be no objection in justice to the forfeiture of a proportionate part of every felons property, such forfeiture to be dedicated to the formation of a fund, out of which assistance should be given, both to the families of prisoners during their custody and to the prisoners themselves on their discharge.[62] Such a fund might be still further increased by the substitution of a lien on a mans wages or income for many minor offences now punished, but not prevented, by imprisonment.
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