A near universal misconception swirls around Western criminal law. We believe we are enlightened and liberal. We believe there has been no society upon the earth more liberal, benign and just than our own first-world, Western civilization. We believe that we are a city set upon a hill: we routinely aver that the world would be a whole lot better place if other nations copied or imitated our example.
Our view of the past is that societies and civilizations which preceded our own were brutishly cruel and had criminal legal systems which were bloody and harsh. One of the most ridiculed legal systems in our day is the civil and criminal law of Moses. We are, however, more tolerant toward the post-Cromwellian English legal system--influenced as it was by Enlightenment principles and the concept of limited government under the gentle aegis of folk like John Locke.
The truth is somewhat different.
A good measure on how liberal a society is can be taken from how it treats crimes against property. Here is a partial list of the crimes for which one could be transported from the UK in the nineteenth century:
The following is the list of crimes that was punishable by transportation to Australia 1.) All theft above the value of one shilling.2.) Thefts under the value one shilling. 3.) Receiving stolen goods, jewels and plate. 4.) Stealing lead, iron or copper. 5.) Stealing ore from black lead mines. 6.) Stealing from furnished lodgings. 7.) Setting fire to underwood. 8.) Stealing letters.9.) Assault with intent to rob. 10.) Stealing fish from a pond or river. 11.) Stealing roots, trees or plants. 12.) Bigamy. 13.) Assaulting, cutting or burning clothes. 14.) Counterfeiting the copper coin. 15.) Clandestine marriage. 16.) Stealing a shroud from a grave. 17.) Watermen carrying too many passengers on the Thames , if any drowned. 18.) Incorrigible rogues who broke out of prison and persons reprieved from capital punishment. 19.) Embeuling naval stores.Much of the theft at the time arose from the extreme penury of folk with little or no means of earning a living or supporting themselves. Not a small cause was the alienation of the poor from the land by legal land grabs. As one convict poem had it:
The law locks up the man or woman
Who steals the goose from the common
But leaves the greater villain loose
Who steals the common from the goose
Without transportation, thousands upon thousands of the poor would likely have been hung from gibbets all over the United Kingdom. Theft had been a capital offence.
In the Mosaic law, theft was punishable by restitution: the thief was made to restore what he had destroyed or taken. Today, in our enlightened times we put a thief in prison and call ourselves noble. We grant that not having theft set down as a capital crime punishable by death or transportation is a great boon. Imprisonment? Not such a boon. Not so enlightened.
But, we hear you say, is it not a mark of our enlightenment and superiority that we no longer put anyone on the gibbet for any crime, even the most monstrous? No, we are sufficiently enlightened, liberal, and sophisticated that we cheerfully condone the murder of 20,000 innocent children a year and sanctify the crime by manufacturing a faux human right to justify it.
Every society sheds blood. It is only a question of whose blood is to be shed. The innocent or the guilty? We are so perverse that we celebrate our liberal, enlightened criminal code and, at the same time, sanction industrial factories for the sole purpose of the murder of innocent, defenceless human beings. Our liberalism is evil and perverse.