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Punishment for crime was harsher in earlier times than it is today. In early modern England, simple theft, i.e., theft without violence, frequently incurred the death penalty. Most of us today count it an advance in civilization that we no longer put thieves to death. And for this and other ameliorations of criminal law, we often credit Enlightenment thinkers such as Cesare Beccaria and Jeremy Bentham. But was the rethinking of crime and punishment wholly a project of the Enlightenment? Do no earlier thinkers deserve credit?
In a certain old book—to be identified later—we find this passage:
[The lawyer] began diligently and earnestly to praise that strait and rigorous justice which at that time was there executed upon felons . . . where for the most part twenty hanged together upon one gallows. And, seeing so few escaped punishment, he said he could not . . . but greatly wonder . . . how . . . it should come to pass that thieves, nevertheless, were in every place so rife. . . . "Nay, sir," quoth I . . . "marvel nothing hereat: For simple theft is not so great an offence that it ought to be punished with death. Neither . . . is any punishment so horrible that it can keep them from stealing which have no other craft whereby to get their living."
The two views expressed here—that death is too cruel a punishment for theft, and that theft cannot be deterred by threats of punishment when unemployment is its cause—are moral and sociological arguments for change in the penal system. As the book unfolds, these arguments are developed in some depth.
The Sociological Argument
The speaker quoted above—a man named Raphael Hythloday, who is addressing both the lawyer and an English cardinal—sets forth the sociological argument as follows:
"[T]here is . . . [a] cause of stealing . . . peculiar to you Englishmen alone . . . your sheep. . . . They consume, destroy, and devour whole fields, houses, and cities. For look in what parts of the realm doth grow the finest and therefore dearest wool, there noblemen and gentlemen, yea and certain abbots, holy men no doubt, not contenting themselves with the yearly revenues and profits . . . [earned by] their forefathers and predecessors of their lands . . . leave no ground for tillage: they enclose all into pastures; they throw down houses; they pluck down towns, and leave nothing standing . . . that one covetous and insatiable . . . [landowner] . . . may compass about and enclose many thousand acres of ground together within one pale or hedge, the husbandmen be thrust out of their own. . . . They must needs depart . . . wretched souls . . . husbands, wives, fatherless children, widows, woeful mothers, with their young babes. . . . All their household stuff . . . they be constrained to sell . . . for [almost nothing.] . . . And when . . . that be spent, what can they then else do but steal, and then . . . be hanged, or else go about a-begging? And yet then . . . they be cast in prison as vagabonds, because they go about and work not, whom no man will set a-work, though they never so willingly proffer themselves thereto."
This is a blunt critique of a major English economic policy of the day, i.e., the enclosure by landlords of rural land for sheep grazing, with the consequent expulsion of former tenant farmers. This trend led to massive unemployment of rural workers, who, with no place to ply their farming trade, had to seek other work. But other work was rarely to be found; thus, many of them were reduced to begging or stealing in order to keep alive. By setting the rise of thievery in this context, Raphael hopes to alter the discourse on penal law.
The Moral Argument & More
After hearing Raphael, the English cardinal asks him two questions: Why is theft not worthy of punishment by death? And if not death, then what policy is he recommending to deal with the problem of theft?
To the first question, Raphael answers as follows:
"I think it not right nor justice that the loss of money should cause the loss of man's life . . . [nor] to count all offenses of such equality, that the killing of a man or the taking of his money were [equally evil], and the one no more heinous offence than the other. . . . God commandeth us that we shall not kill. And be we then so hasty to kill a man for taking a little money? . . . Moses' law, though it were ungentle and sharp . . . yet it punished theft by the purse, and not with death. And let us not think that God in the new law of clemency and mercy . . . hath given us greater scope and licence to the execution of cruelty one upon another."
Raphael here expands upon the moral argument, arguing that it is wrong to impose the same penalty for theft as for murder, and he reinforces the philosophical argument with an appeal to the Old and New Testaments. From the point of view of either rational or revealed morality, the hanging of thieves is cruel and unacceptable.
To the second question, Raphael replies:
"I allow the ordinance of no nation . . . [to be as good as the one] used in Persia among . . . the Polylerites. They that in this land be [convicted] of felony, make restitution of that which they stole to the right owner. . . . But if the thing be lost or made away, then the value of it is paid of the goods of such offenders. . . . And they themselves be condemned to be common labourers, and . . . be neither locked in prison nor fettered, but be untied and go at large, labouring in the common works. . . . Beside their daily labour, their life is nothing hard or incommodious. Their fare is . . . borne at the charges of the weal-public, because they be common servants to the common-wealth. . . . By this means they never lack work, and besides the gaining of their meat and drink, every one of them bringeth daily something into the common treasury. . . . This is the law and order. . . . Wherein what humanity is used, how far it is from cruelty, and how commodious it is, you do plainly perceive, forasmuch as . . . their . . . punishment intendeth nothing else but the destruction of vices and saving of men . . . so using and ordering them that they cannot choose but be good, and what harm soever they did before, in the residue of their life to make amends for the same. . . . [Finally,] there is none of them . . . hopeless . . . to recover again his former state of freedom, by humble obedience, by patient suffering, and by giving . . . likelihood . . . [t]hat he will ever after that live like a true and honest man. For every year divers of them be restored to their freedom through the commendation of their patience."
Raphael has answered the cardinal's question, yet has transcended the plane of the question. The cardinal thought solely in terms of deterrence: what punishment will frighten thieves into ceasing to steal? Raphael's proposed policy goes beyond deterrence; its aim is not merely to reduce thievery, but to change thieves into honest men. In modern language, its aim is rehabilitation.
The Old Modern Argument
This entire discussion of crime and punishment is strikingly modern. It calls for punishment that is not cruel; it deals with the social and economic roots of crime; and it links punishment to rehabilitation.
So when was this strikingly modern analysis written? In fact, it was written almost 250 years before the celebrated work of Beccaria; for the character "Raphael" is the literary creation of the Christian philosopher Thomas More, and this work, Utopia, was first published in 1516. •
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