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Title: Crimes and Punishments - Including a New Translation of Beccaria's 'Dei Delitti e delle Pene'
Author: Farrer, James Anson
Language: English
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CRIMES AND PUNISHMENTS



BY THE SAME AUTHOR.

Crown 8vo. cloth extra, 7_s._ 6_d._


PRIMITIVE MANNERS AND CUSTOMS.

By JAMES A. FARRER.

‘A book which is really both instructive and amusing, and which will open
a new field of thought to many readers.’—ATHENÆUM.

‘An admirable example of the application of the scientific method and the
working of the truly scientific spirit.’—SATURDAY REVIEW.

CHATTO & WINDUS, Piccadilly, W.



                                 CRIMES
                                   AND
                               PUNISHMENTS

                     INCLUDING A NEW TRANSLATION OF
                 _BECCARIA’S ‘DEI DELITTI & DELLE PENE’_

                                   BY
                           JAMES ANSON FARRER

                             [Illustration]

                                 London
                       CHATTO & WINDUS, PICCADILLY
                                  1880

                          _All rights reserved_



_PREFACE._


The reason for translating afresh Beccaria’s ‘Dei Delitti e delle Pene’
(‘Crimes and Punishments’) is, that it is a classical work of its kind,
and that the interest which belongs to it is still far from being merely
historical.

It was translated into English long ago; but the change in the order of
the several chapters and paragraphs, which the work underwent before it
was clothed in its final dress, is so great, that the new translation and
the old one really constitute quite different books.

The object of the preliminary chapters is to place the historical
importance of the original in its just light, and to increase the
interest of the subjects it discusses.

The Translator has abstained from all criticism or comment of the
original, less from complete agreement with all its ideas than from the
conviction that annotations are more often vexatious than profitable,
and are best left to the reader to make for himself. There is scarcely a
sentence in the book on which a commentator might not be prolix.

To combine the maximum of perspicuity with the maximum of fidelity to the
original has been the cardinal principle observed in the translation.
But it would, of course, have been no less impossible than contrary
to the spirit of the original to have attempted to render perfectly
comprehensible what the author purposely wrapped in obscurity. A
translation can but follow the lights and shades of the surface it
reflects, rendering clear what is clear in the original, and opaque what
is opaque.



_CONTENTS._


                                                                      PAGE

                               CHAPTER I.

                     BECCARIA’S LIFE AND CHARACTER.

    State of Lombardy under Count Firmian—The state of criminal
    law—Torture still in use—The abolition of torture before
    Beccaria—Beccaria not a lawyer by profession—Autobiographical
    letter of Beccaria to the Abbé Morellet—Influence on
    Beccaria of Montesquieu and Helvetius—His philosophy of life
    and truth—His friends, the Verri—Connection with Pietro
    Verri—The Caffé periodical—Reception of the ‘Dei Delitti’ in
    Paris—Translation of it by Morellet—Commentary by Voltaire—The
    Swiss medal—Beccaria’s fear of ecclesiastical persecution a
    motive for occasional obscurity—Feeling in Venice against
    the author—Facchinei’s criticism—Protection of Count
    Firmian—Adverse criticism by contemporary lawyers—Ramsay’s
    letter to Diderot, illustrative of the despair of
    reform—Beccaria’s journey to Paris—His speedy return—Enmity
    and jealousy of Pietro Verri—Beccaria’s invitation to St.
    Petersburg—His lectures on political economy, and later life         1

                               CHAPTER II.

            THE GENERAL INFLUENCE OF BECCARIA ON LEGISLATION.

    Present inconceivability of torture due to Beccaria—How far
    he was the first to write against it—Torture first abolished
    in England—Beccaria’s influence in Russia—Quotations
    from his treatise in Catharine’s instruction for the new
    code—Beccaria’s influence in France; Tuscany; Austria;
    Pennsylvania—Beccaria the first advocate of the abolition
    of capital punishment—Relative severity of death and other
    penalties—Slight relation of crime to punishment—Reasons
    why capital punishment is always more uncertain than other
    penalties—Cases accounting for its uncertainty—The efficiency
    of a punishment its real test—Futility of discussing the
    general right of punishment—Instances of the abolition of
    capital punishment in ancient and modern times—The argument for
    its abolition the same as that for the abolition of torture         29

                              CHAPTER III.

                  THE INFLUENCE OF BECCARIA IN ENGLAND.

    General debt of English law to Beccaria—English utilitarianism
    due to Beccaria—His influence first traceable in
    Blackstone—Fallacy of old criminal law in making the amount
    of temptation the measure of punishment—Eden the first to
    expose it in his ‘Principles of Penal Law’—Attitude of
    men of letters to the criminal law, as of Goldsmith, Lord
    Kames, and Fielding—First attempt at law reform by Sir W.
    Meredith—Constant opposition of the House of Lords—Effect on
    reform of Madan’s ‘Executive Justice’ and Paley’s chapter on
    Crimes and Punishments—Relation of Paley to Lord Chief Justice
    Ellenborough—Paley’s defence of English law—His approval
    of the suggestion of throwing murderers into a den of wild
    beasts—Howard’s ideas of reform and contribution to it—Bad
    effect of the French Revolution in England—Romilly’s original
    idea of reform—His Privately Stealing Bill—His criticism of
    Paley—His Shoplifting Bill rejected by the Lords—The pillory
    defended by Lord Ellenborough—Capital punishment for forgery by
    Lord Tenterden—Rapid changes after the Reform Bill—The triumph
    of Beccaria’s principles                                            46

                               CHAPTER IV.

                        THE PROBLEMS OF PENOLOGY.

    The spirit of Beccaria’s work—The slow progress of penology
    as a science—Its difficulties—Confusion of guilty and
    innocent—Relation of intention to crime—Objects and animals
    once part of the criminal world—Penal laws the expression
    of moral sentiments, and also the cause of them—Tendency
    of actions to remain immoral when they have ceased to be
    penal—Illustration from suicide and infanticide—The Equality of
    punishment, its Analogy and Proportion to crime, as principles
    of penal law—The object of punishment—The difficulties of
    the deterrent-and-reformative theory—The object of law to
    regulate natural vindictiveness—Traceable historically to this
    purpose—The measure of punishment on this theory—Absence of any
    such measure at present—Possibility of a fixed scale of crime
    and punishment illustrated by the Chinese code—The question of
    aggravated penalties for re-convictions—The custom contrary
    to the spirit of the laws: its evil results—Limitations to
    the universality of the custom—Its error of principle proved
    by number of re-convictions—The preventiveness of punishment
    diminished by its great uncertainty—Frequent changes of
    English penal system—Failure of present system to reform
    or deter—Punishment itself a cause of crime—Its possible
    relaxation—Punishments most fitted for injuries to the person,
    or for offences like cruelty to animals—Indirect preventives of
    crime—A Prisoners’ Fund—Cumulative sentences—Conclusion             69

          BECCARIA’S ‘CRIMES AND PUNISHMENTS,’ TRANSLATED.

       CHAP.

             TO THE READER                                             111

          I. INTRODUCTION                                              117

         II. THE ORIGIN OF PUNISHMENTS—RIGHT OF PUNISHMENT             121

        III. CONSEQUENCES                                              124

         IV. INTERPRETATION OF THE LAWS                                125

          V. OBSCURITY OF THE LAWS                                     130

         VI. IMPRISONMENT                                              132

        VII. PROOFS AND FORMS OF JUDGMENTS                             134

       VIII. WITNESSES                                                 138

         IX. SECRET ACCUSATIONS                                        139

          X. LEADING QUESTIONS                                         144

         XI. OATHS                                                     146

        XII. TORTURE                                                   148

       XIII. PROSECUTIONS AND PRESCRIPTIONS                            157

        XIV. CRIMINAL ATTEMPTS, ACCOMPLICES, IMPUNITY                  162

         XV. THE MILDNESS OF PUNISHMENTS                               165

        XVI. CAPITAL PUNISHMENT                                        169

       XVII. BANISHMENT AND CONFISCATIONS                              180

      XVIII. INFAMY                                                    183

        XIX. PROMPTNESS OF PUNISHMENTS                                 185

         XX. CERTAINTY OF PUNISHMENTS—PARDONS                          189

        XXI. ASYLUMS OF REFUGE                                         192

       XXII. PROSCRIPTION                                              194

      XXIII. PROPORTION BETWEEN CRIMES AND PUNISHMENTS                 196

       XXIV. MEASURE OF PUNISHMENTS                                    199

        XXV. DIVISION OF PUNISHMENTS                                   202

       XXVI. CRIMES OF HIGH TREASON                                    204

      XXVII. CRIMES AGAINST PERSONAL SECURITY—DEEDS OF VIOLENCE        205

     XXVIII. INJURIES                                                  208

       XXIX. DUELS                                                     212

        XXX. THEFTS                                                    213

       XXXI. SMUGGLING                                                 214

      XXXII. DEBTORS                                                   216

     XXXIII. PUBLIC PEACE                                              220

      XXXIV. POLITICAL IDLENESS                                        221

       XXXV. SUICIDE                                                   222

      XXXVI. CRIMES OF DIFFICULT PROOF                                 227

     XXXVII. A PARTICULAR KIND OF CRIME                                231

    XXXVIII. SOURCES OF ERRORS AND INJUSTICE IN LEGISLATION; AND
                 FIRSTLY OF FALSE IDEAS OF UTILITY                     233

      XXXIX. FAMILY SPIRIT                                             235

         XL. THE TREASURY                                              240

        XLI. THE PREVENTION OF CRIMES—KNOWLEDGE—MAGISTRATES—REWARDS    242

       XLII. CONCLUSION                                                251

       *       *       *       *       *

    ‘All men, whether singly or collectively, naturally do wrong,
    nor is there any law which will prevent it. For every kind
    of punishment has been successively tried by mankind, if
    haply they might suffer less injury from malefactors. And it
    is probable that in their origin punishments for even the
    gravest crimes are comparatively mild, but that, as they
    are disregarded, most of them come in course of time to be
    punishments of death; yet this in its turn is also disregarded.
    Either, therefore, some greater terror than death must be
    invented, or death at least serves not as a deterrent, men
    being led to risk it, sometimes by poverty, which emboldens
    them through necessity, sometimes by power, which makes
    them overreaching and insolent; or sometimes by some other
    circumstance which subordinates all a man’s passions to some
    one passion that is insuperable and dominant.… And it is
    simply impossible, and a very foolish idea, to think that,
    when human nature is firmly bent on doing anything, it can
    be deterred from it either by force of law or by any other
    terror.’—THUCYDIDES.

    ‘How many condemnations have I seen more criminal than the
    crimes themselves!’—MONTAIGNE.



CRIMES AND PUNISHMENTS.



CHAPTER I.

BECCARIA’S LIFE AND CHARACTER.


The ‘Dei Delitti e delle Pene’ was published for the first time in
1764. It quickly ran through several editions, and was first translated
into French in 1766 by the Abbé Morellet, since which time it has been
translated into most of the languages of Europe, not excluding Greek and
Russian.

The author of the book was a native of Milan, then part of the Austrian
dominions, and under the governorship of Count Firmian, a worthy
representative of the liberal despotism of Maria Theresa and her chief
minister, Kaunitz. Under Firmian’s administration a period of beneficial
reforms began for Lombardy. Agriculture was encouraged, museums and
libraries extended, great works of public utility carried on. Even
the Church was shorn of her privileges, and before Firmian had been
ten years in Lombardy all traces of ecclesiastical immunity had been
destroyed; the jurisdiction of the Church, and her power to hold lands in
mortmain were restricted, the right of asylum was abolished, and, above
all, the Holy Office of the Inquisition. Let these few facts suffice to
indicate the spirit of the immediate political surroundings in the midst
of which Beccaria’s work appeared.

But, in spite of the liberalism of the Count, the penal laws and
customs of Lombardy remained the same; and the cruel legal procedure
by torture existed still, untouched by the salutary reforms effected
in other departments of the Government. There was the preparatory
torture, to extort confession from criminals not yet condemned; there
was torture for the discovery of a criminal’s accomplices; and there was
the extraordinary or greater torture, which preceded the execution of
a sentence of death. It is true that torture could only be applied to
crimes of a capital nature, but there was scarcely an act in the possible
category of crimes that was not then punishable with death. Proofs of
guilt were sought almost entirely from torture and secret accusations,
whilst penalties depended less on the text of any known law than on the
discretion—that is, on the caprice—of the magistrate.

It was this system that Beccaria’s little work destroyed, and had that
been its only result, it would still deserve to live in men’s memories
for its historical interest alone. For upon the legislation of that time,
and especially upon that of Italy, this pamphlet on criminal law broke
like a ray of sunlight on a dungeon floor, making even blacker that
which was black before by the very brilliancy which it shed upon it. To
Beccaria primarily, though not of course solely, belongs the glory of
having expelled the use of torture from every legal tribunal throughout
Christendom.

Frederick the Great had already abolished it in Prussia;[1] it had been
discontinued in Sweden; it was not recognised in the military codes of
Europe, and Beccaria said it was not in use in England. This was true
generally, although the _peine forte et dure_, by which a prisoner who
would not plead was subjected to be squeezed nearly to death by an iron
weight, was not abolished till the year 1771.[2]

It is remarkable that a book which has done more for law reform than any
other before or since should have been written by a man who was not a
lawyer by profession, who was totally unversed in legal practice, and
who was only twenty-six when he attacked a system of law which had on
its side all authority, living and dead. Hume was not twenty-seven when
he published his ‘Treatise on Human Nature,’ nor was Berkeley more than
twenty-six when he published his ‘Principles of Human Knowledge.’ The
similar precocity displayed by Beccaria is suggestive, therefore, of the
inquiry, how far the greatest revolutions in the thoughts or customs of
the world have been due to writers under thirty years of age.

The following letter by Beccaria to the Abbé Morellet in acknowledgment
of the latter’s translation of his treatise is perhaps the best
introduction to the life and character of the author. The letter in
question has been quoted by Villemain in proof of the debt owed by the
Italian literature of the last century to that of France, but from the
allusions therein contained to Hume and the ‘Spectator’ it is evident
that something also was due to our own. Beccaria had spent eight years
of his youth in the college of the Jesuits at Parma, with what sense of
gratitude this letter will show. The following is a translation of the
greater part of it:—

    Your letter has raised in me sentiments of the deepest esteem,
    of the greatest gratitude, and the most tender friendship; nor
    can I confess to you how honoured I feel at seeing my work
    translated into the language of a nation which is the mistress
    and illuminator of Europe. I owe everything to French books.
    They first raised in my mind feelings of humanity which had
    been suffocated by eight years of a fanatical education. I
    cannot express to you the pleasure with which I have read your
    translation; you have embellished the original, and your
    arrangement seems more natural than, and preferable to, my
    own. You had no need to fear offending the author’s vanity:
    in the first place, because a book that treats of the cause
    of humanity belongs, when once published, to the world and
    all nations equally; and as to myself in particular, I should
    have made little progress in the philosophy of the heart,
    which I place above that of the intellect, had I not acquired
    the courage to see and love the truth. I hope that the fifth
    edition, which will appear shortly, will be soon exhausted,
    and I assure you that in the sixth I will follow entirely, or
    nearly so, the arrangement of your translation, which places
    the truth in a better light than I have sought to place it in.

    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.

    D’Alembert, Diderot, Helvetius, Buffon, Hume, illustrious
    names, which no one can hear without emotion! Your immortal
    works are my continual study, the object of my occupation by
    day, of my meditation in the silence of night. Full of the
    truth which you teach, how could I ever have burned incense to
    worshipped error, or debased myself to lie to posterity? I find
    myself rewarded beyond my hopes in the signs of esteem I have
    received from these celebrated persons, my masters. Convey to
    each of these, I pray you, my most humble thanks, and assure
    them that I feel for them that profound and true respect which
    a feeling soul entertains for truth and virtue.

    My occupation is to cultivate philosophy in peace, and so to
    satisfy my three strongest passions, the love, that is, of
    literary fame, the love of liberty, and pity for the ills of
    mankind, slaves of so many errors. My conversion to philosophy
    only dates back five years, and I owe it to my perusal of
    the ‘Lettres Persanes.’ The second work that completed my
    mental revolution was that of Helvetius. The latter forced me
    irresistibly into the way of truth, and aroused my attention
    for the first time to the blindness and miseries of humanity.

    … I lead a tranquil and solitary life, if a select company of
    friends in which the heart and mind are in continual movement
    can be called solitude. This is my consolation, and prevents me
    feeling in my own country as if I were in exile.

    My country is quite immersed in prejudices, left in it by its
    ancient masters. The Milanese have no pardon for those who
    would have them live in the eighteenth century. In a capital
    which counts 120,000 inhabitants, you will scarcely find twenty
    who love to instruct themselves, and who sacrifice to truth
    and virtue. My friends and I, persuaded that periodical works
    are among the best means for tempting to some sort of reading
    minds incapable of more serious application, are publishing in
    papers, after the manner of the English ‘Spectator,’ a work
    which in England has contributed so much to increase mental
    culture and the progress of good sense. The French philosophers
    have a colony in this America, and we are their disciples
    because we are the disciples of reason, &c.

Thus, the two writers to whom Beccaria owed most were Montesquieu and
Helvetius. The ‘Lettres Persanes’ of the former, which satirised so many
things then in custom, contained but little about penal laws; but the
idea is there started for the first time that crimes depend but little
on the mildness or severity of the punishments attached to them. ‘The
imagination,’ says the writer, ‘bends of itself to the customs of the
country; and eight days of prison or a slight fine have as much terror
for a European brought up in a country of mild manners as the loss of
an arm would have for an Asiatic.’[4] The ‘Esprit des Lois,’ by the
same author, probably contributed more to the formation of Beccaria’s
thoughts than the ‘Lettres Persanes,’ for it is impossible to read the
twelfth book of that work without being struck by the resemblance of
ideas. The ‘De L’Esprit’ of Helvetius was condemned by the Sorbonne as ‘a
combination of all the various kinds of poison scattered through modern
books.’ Yet it was one of the most influential books of the time. We
find Hume recommending it to Adam Smith for its agreeable composition
father than for its philosophy; and a writer who had much in common with
Beccaria drew from it the same inspiration that he did. That writer was
Bentham, who tells us that when he was about twenty, and on a visit to
his father and stepmother in the country, he would often walk behind them
reading a book, and that his favourite author was Helvetius.

The influence of the predominant French philosophy appears throughout
Beccaria’s treatise. Human justice is based on the idea of public
utility, and the object of legislation is to conduct men to the greatest
possible happiness or to the least possible misery. The vein of
dissatisfaction with life and of disbelief in human virtue is a marked
feature of Beccaria’s philosophy. To him life is a desert, in which a
few physical pleasures lie scattered here and there;[5] his own country
is only a place of exile, save for the presence of a few friends engaged
like himself in a war with ignorance. Human ideas of morality and virtue
have only been produced in the course of many centuries and after much
bloodshed, but slow and difficult as their growth has been, they are ever
ready to disappear at the slightest breeze that blows against them.

Beccaria entertains a similar despair of truth. The history of mankind
represents a vast sea of errors, in which at rare intervals a few truths
only float uppermost; and the durability of great truths is as that of
a flash of lightning when compared with the long and dark night which
envelops humanity. For this reason he is ready to be the servant of
truth, not her martyr; and he recommends in the search for truth, as in
the other affairs of life, a little of that ‘philosophical indolence’
which cares not too much about results, and which a writer like Montaigne
is best fitted to inspire.[6]

The few select friends who made life at Milan just supportable were
Pietro and Alessandro Verri, Frisi, and some others. Pietro Verri was ten
years older than Beccaria, and it was at his instance that the latter
wrote his first treatise on a subject which then demanded some attention,
namely, ‘The Disorders and Remedies of the Coinage.’ This work was
published two years before the ‘Crimes and Punishments,’ but though it
provoked much discussion at the time, it has long since ceased to have
any interest.

Count Pietro Verri was the son of Gabriel, who was distinguished alike
for his legal knowledge and high position in Milan. At the house of
Pietro, Beccaria and the other friends used to meet for the discussion
and study of political and social questions. Alessandro, the younger
brother of Pietro, held the office of ‘Protector of Prisoners,’ an office
which consisted in visiting the prisons, listening to the grievances of
the inmates, and discovering, if possible, reasons for their defence or
for mercy. The distressing sights he was witness of in this capacity are
said to have had the most marked effect upon him; and there is no doubt
that this fact caused the attention of the friends to be so much directed
to the state of the penal laws. It is believed to have been at the
instigation of the two brothers that Beccaria undertook the work which
was destined to make his name so famous.

Why then did Pietro Verri not write it himself? The answer would seem to
be, out of deference for the position and opinions of his father. It was
some time later that Gabriel defended the use of torture in the Milanese
Senate, and Pietro wrote a work on torture which he did not publish
in his father’s lifetime. It was probably due also to the father’s
position that Alessandro held his office of Protector of the Prisoners,
so that there were obvious reasons which prevented either brother from
undertaking the work in question.

It was at one time said that the work really was Pietro Verri’s and not
Beccaria’s, for it was published anonymously, and away from Milan. The
domestic circumstances of Pietro lent some countenance to this story,
as did also the fact that he charged himself with the trouble of making
a correct copy of the manuscript, so that a copy of the treatise does
actually exist in Pietro’s handwriting. The story, however, has long
since been disproved; yet to show the great interest which Pietro took in
the work, and the ready assistance he gave to his friend, a letter to
him from Beccaria, with respect to the second edition, deserves mention,
in which Beccaria begs him not only to revise the spelling correctly,
but generally to erase, add, and correct, as he pleases. It would appear
that he was already tired of literary success, for he tells his friend,
that but for the motive of preserving his esteem and of affording fresh
aliment to their friendship, he should from indolence prefer obscurity to
glory itself.

There is no doubt that Beccaria always had a strong preference for the
contemplative as opposed to the practical and active life, and that but
for his friend Pietro Verri he would probably never have distinguished
himself at all. He would have said with Plato that a wise man should
regard life as a storm, and hide himself behind a wall till it be
overpast. He almost does say this in his essay on the ‘Pleasures of the
Imagination,’ published soon after the ‘Crimes and Punishments.’ He
advises his reader to stand aside and look on at the rest of mankind as
they run about in their blind confusion; to make his relations with them
as few as possible; and if he will do them any good, to do it at that
distance which will prevent them from upsetting him or drawing him away
in their own vortex. Let him in happy contemplation enjoy in silence the
few moments that separate his birth from his disappearance. Let him leave
men to fight, to hope, and to die; and with a smile both at himself and
at them, let him repose softly on that enlightened indifference with
regard to human things which will not deprive him of the pleasure of
being just and beneficent, but which will spare him from those useless
troubles and changes from evil to good that vex the greater part of
mankind.

This essay on the ‘Imagination’ was published soon after the ‘Crimes and
Punishments’ in the periodical to which Beccaria alludes in his letter
to Morellet. ‘The Caffé’ was the name of the periodical which, from June
1764, he and his friends published every tenth day for a period of two
years. The model of the paper was the English ‘Spectator,’ and its object
to propagate useful knowledge pleasantly among the Milanese, whilst its
name rested on the supposition that the friends who composed it executed
their labours during meetings in a coffee-house. The most interesting
contributions to it by Beccaria are his ‘Fragment on Style,’ his article
on ‘Periodical Newspapers,’ and his essay on the ‘Pleasures of the
Imagination.’

The publication of the ‘Delitti e delle Pene’ interrupted its author’s
dreams of philosophical calm, by fulfilling his hopes of literary fame.
The French encyclopædists were the first to recognise its merits, and
D’Alembert, the mathematician, at once predicted for the writer the
reward of an immortal reputation. Morellet’s translation, in which the
arrangement, though not the matter of the text, was entirely altered, ran
through seven editions in six months, and Beccaria, as has been seen, was
only too delighted with the honour thus conferred on him to complain in
any way of the liberties taken by the translator with the original.

A still greater honour was the commentary written by Voltaire. The fact
that only within a few miles of his own residence a girl of eighteen had
been hung for the exposure of a bastard child led Voltaire to welcome
Beccaria’s work as a sign that a period of softer manners and more humane
laws was about to dawn upon the world’s history. Should not a people,
he argues, who like the French pique themselves on their politeness
also pride themselves on their humanity? Should they retain the use of
torture, merely because it was an ancient custom, when the experience of
England and other countries showed that crimes were not more numerous
in countries where it was not in use, and when reason indicated the
absurdity of inflicting on a man, before his condemnation, a punishment
more horrible than would await his proved guilt? What could be more
cruel, too, than the maxim of law that a man who forfeited his life
forfeited his estates? What more inhuman than thus to punish a whole
family for the crime of an individual, perhaps condemning a wife and
children to beg their bread because the head of the family had harboured
a Protestant preacher or listened to his sermon in a cavern or a desert?
Amid the contrariety of laws that governed France, the object of the
criminal procedure to bring an accused man to destruction might be said
to be the only law which was uniform throughout the country.

So signal a success in France was a sufficient guarantee of success
elsewhere. A knowledge of the book must have speedily crossed the
Channel, for Blackstone quoted it the very year after its publication.
It was first translated into English in 1768, together with Voltaire’s
commentary; but just as Morellet’s translation professed to have been
published at Philadelphia, so the English translator kept his name
a secret. The Economical Society of Berne, which was accustomed to
bestow a gold medal on the writer of the best treatise on any given
subject, violated its own rules in favour of the anonymous writer of the
‘Delitti,’ inviting him to disclose his name, and to accept the gold
medal ‘as a sign of esteem due to a citizen who had dared to raise his
voice in favour of humanity against the most deeply engrained prejudices.’

But there was another side to the brightness of this success. In
literature as in war no position of honour can be won or held without
danger, and of this Beccaria seems to have been conscious when he
pleaded against the charge of obscurity, that in writing he had had
before his eyes the fear of ecclesiastical persecution. His love for
truth, he confessed, stopped short at the risk of martyrdom. He had,
indeed, three very clear warnings to justify his fears. Muratori, the
historian, had suffered much from accusations of heresy and atheism, and
had owed his immunity from worse consequences chiefly to the liberal
protection of Pope Benedict XIV. The Marquis Scipio Maffei had also
incurred similar charges for his historical handling of the subject of
Free-will. But there was even a stronger warning than these, and one not
likely to be lost on a man with youth and life before him; that was the
fate of the unfortunate Giannone, who, only sixteen years before Beccaria
wrote, had ended with his life in the citadel of Turin an imprisonment
that had lasted twenty years, for certain observations on the Church of
Rome which he had been rash enough to insert in his ‘History of Naples.’

Of all the attacks which the publication of the ‘Dei Delitti’ provoked,
the bitterest came naturally from a theological pen. At the very time
that Beccaria’s work appeared, the Republic of Venice was occupied
in a violent contest touching the Inquisitorial Council of Ten; and
imagining that Beccaria’s remarks about secret accusations had been
directed against the procedure of their famous tribunal, whilst they
attributed the work to a Venetian nobleman called Quirini, they forbade
its circulation under pain of death. It was on their behalf and with this
belief that the Dominican Padre, Facchinei, took up his pen and wrote a
book, entitled, ‘Notes and Observations on the “Dei Delitti,”’ in which
he argued, among other things, not only that secret accusations were the
best, cheapest, and most effective method of carrying out justice, but
that torture was a kind of mercy to a criminal, purging him in his death
from the sin of falsehood.

In these ‘Notes and Observations’ Beccaria and his work were assailed
with that vigour and lucidity for which the Dominican school of writing
has always been so conspicuous. The author was described as ‘a man
of narrow mind,’ ‘a madman,’ ‘a stupid impostor,’ ‘full of poisonous
bitterness and calumnious mordacity.’ He was accused of writing ‘with
sacrilegious imposture against the Inquisition,’ of believing that
‘religion was incompatible with the good government of a state;’ nay, he
was condemned ‘by all the reasonable world as the enemy of Christianity,
a bad philosopher, and a bad man.’ His book was stigmatised as ‘sprung
from the deepest abyss of darkness, horrible, monstrous, full of poison,’
containing ‘miserable arguments,’ ‘insolent blasphemies,’ and so forth.

This fulmination reached Milan on January 15, 1765, and on the 21st the
Risposta, or reply, was ready for publication.[7] This defence was the
work of his friends, the Verris, and was published, like the original,
anonymously; as it was written in the first person throughout, it was
generally at the time and even till lately ascribed to the same author as
the original, but the fact is now established beyond doubt that the real
authors were Pietro and his brother. The writers wisely refrained from
the use of retaliatory language, confining themselves in their defence
solely to charges of irreligion and sedition, responding to six which
accused Beccaria of the latter, and to twenty-three which declared him
guilty of the former.

But it is probable that Beccaria owed his escape from persecution less
to his apology than to the liberal protection of Count Firmian, who in
his report of the affair to the Court of Vienna spoke of the Risposta as
‘full of moderation and honourable to the character of its author.’ That
the Count fully agreed with Beccaria’s opinions on torture is proved by a
letter he wrote, in which he declares himself to have been much pleased
with what Beccaria had said on the subject. His vanity, he said, had been
flattered by it, for his own feelings about torture had always been the
same. The book seemed to him written with much love of humanity and much
imagination. Beccaria always acknowledged his gratitude to the Count for
his action in this matter. To Morellet he wrote, that he owed the Count
his tranquillity, in having protected his book; and when, a few years
later, he published his book on Style, he dedicated it to Firmian as his
benefactor, thanking him for having scattered the clouds that envy and
ignorance had gathered thickly over his head, and for having protected
one whose only object had been to declare with the greatest caution and
respect the interests of humanity.

Less dangerous personally than the theological criticism, but more
pernicious to reform, was the hostile criticism that at once appeared
from the thick phalanx of professional lawyers, the sound-thinking
‘practical men.’ From whom only two short extracts need be rescued
from oblivion, as illustrations of the objections once raised against
ideas which have since become the common groundwork of all subsequent
legislation, in America as well as in Europe. The first extract is from
a work on criminal justice by a lawyer of Provence, who in 1770 wrote as
follows:—

    The treatise ‘Dei Delitti,’ instead of throwing any light on
    the subject of crimes, or on the manner in which they should be
    punished, tends to establish a system of the most dangerous and
    novel ideas, which, if adopted, would go so far as to overturn
    laws received hitherto by the greater part of all civilised
    nations.

And an advocate to the Parliament of Paris thus expressed himself, in
refutation of Beccaria:—

    What can be thought of an author who presumes to establish his
    system on the _débris_ of all hitherto accepted notions, who
    to accredit it condemns all civilised nations, and who spares
    neither systems of law, nor magistrates, nor lawyers?

But of far greater historical interest than such criticism is that
of Ramsay, the Scotch poet and painter, to whom a copy of Beccaria’s
treatise had been shown by Diderot, and who wrote a letter about it
to the latter, which, though it contains some very just criticisms on
Beccaria, yet reads for the most part very curiously by the light of
subsequent history, and illustrates graphically the despair of all reform
then felt by most men of reflection.[8]

Ramsay argues that the penal laws of a particular country can only be
considered with reference to the needs of a particular country, and not
in the abstract; that the government of a country will always enforce
laws with a view to its own security; and that nothing less than a
general revolution will ever make the holders of political power listen
for a moment to the claims of philosophers.

    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 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.…

    I know that those general principles which tend to enlighten
    and improve the human race are not absolutely useless … that
    the enlightenment of nations is not without some effect on
    their rulers … provided that the prerogative of the latter,
    their power, their security, their authority, their safety,
    is not touched thereby.… I know well that this general
    enlightenment, so much boasted of, is a beautiful and glorious
    chimera, with which philosophers love to amuse themselves, but
    which would soon disappear if they would open history, and see
    therefrom to what causes improved institutions are due. The
    nations of antiquity have passed, and those of the present
    will pass, before philosophy and its influence have reformed a
    single government.…

    … The cries of sages and philosophers are as the cries of the
    innocent man on the wheel, where they have never prevented, nor
    will ever prevent him from expiring, with his eyes upturned
    to heaven, which will perhaps some day stir up enthusiasm, or
    religious madness, or some other avenging folly, to accomplish
    all that their wisdom has failed to do. It is never the oration
    of the philosopher which disarms the powerful ruler; it is
    something else, which the combination of chance events brings
    about. Meanwhile we must not seek to force it from him, but
    must entreat humbly for such good as he can grant us, that is
    which he can grant us without injury to himself.

Ramsay was so far right, that whether a revolution was the only hope for
theories like Beccaria’s or not, the realisation of many of them was one
of the first results of that general revolution, which seemed to Ramsay
so impossible and undesirable. His letter, as it is a characteristic
expression of that common apathy and despair of change which afflict at
times even the most sanguine and hopeful, so it is, from its misplaced
despair, a good cure for moods of like despondency. For the complete
triumph of Beccaria’s theories about torture, to say nothing of other
improvements in law that he lived to witness, is perhaps the most signal
instance in history of the conquest of theory over practice. For albeit
that his theory was at total variance with the beliefs and ideas of the
whole practical school, Beccaria lived to see torture abolished, not only
in Lombardy and Tuscany, but in Austria generally, in Portugal and in
Sweden, in Russia as well as in France. Yet Ramsay’s fears at the time
were more reasonable than the hopes of Beccaria.

There was little of eventfulness in Beccaria’s life, and the only
episode in it of interest was his visit to Paris in 1766. Thither he
and his friend Pietro had been invited by Morellet, in the name of the
philosophers at Paris, and thither he started in October 1766; not with
Pietro, who could not leave Milan, but with Alessandro Verri, on a
journey which was to include London as well as Paris, and was to occupy
in all a period of six months.

A few years earlier Beccaria could have imagined no greater honour. To
associate with the philosophers he so highly reverenced, as a philosopher
himself, what greater happiness or reward could he have asked? Yet when
it came there was no charm in it; and it was with difficulty he could
be persuaded to go. For with his love for distinction there came into
competition the love of his wife, and if he preferred her company to that
of the wisest and wittiest celebrities of Paris, who shall say that he
was the worse philosopher for that?

When the visit to Paris was contemplated it was a question of either not
going at all or of leaving Teresa behind; there was not money enough for
her to travel too. For Beccaria, though the son of a marquis and of noble
origin, was not rich. When in his twenty-third year he married Teresa,
his father was so opposed to the match on the score of insufficiency of
fortune, that for some time after the marriage he refused to receive the
young couple into his house, and they lived in considerable poverty.
Appeal had even been made to the Government itself to break off, if
possible, so unsuitable a match; but the lovers had their own way, of
course, in the end, though it was not for some time that the domestic
quarrel was healed, and then, it appears, through the mediation of Pietro
Verri.

Beccaria would certainly have done better not to have gone to Paris
at all. His letters to his wife during his absence show that he was
miserable all the time. In every letter he calculates the duration of
time that will elapse before his return, and there is an even current
of distress and affection running through all the descriptions of his
journey. The assurance is frequent that but for making himself ridiculous
he would return at once. From Lyons he writes that he is in a state of
the deepest melancholy; that even the French theatre he had so much
looked forward to fails to divert him; and he begs his wife to prepare
people for his speedy return by telling them that the air of France has a
bad effect on his health.

Even when Paris was reached, and Beccaria and Alessandro were warmly
welcomed by D’Alembert, Morellet, Diderot, and Baron Holbach, the
homesickness remained. ‘You would not believe,’ says Beccaria to his
wife, ‘the welcomes, the politeness, the demonstrations of friendship
and esteem, which they have shown to me and my companion. Diderot, Baron
Holbach, and D’Alembert especially enchant us. The latter is a superior
man, and most simple at the same time. Diderot displays enthusiasm and
good humour in all he does. In short, nothing is wanting to me but
yourself. All do their best to please me, and those who do so are the
greatest men in Europe. All of them deign to listen to me, and no one
shows the slightest air of superiority.’ Yet Morellet tells us that even
on arrival Beccaria was so absorbed in melancholy, that it was difficult
to get four consecutive words from his mouth.

Six days after his arrival Beccaria writes in a similar strain: that he
is in the midst of adorations and the most flattering praises, considered
as the companion and colleague of the greatest men in Europe, regarded
with admiration and curiosity, his company competed for; in the capital
of pleasures, close to three theatres, one of them the Comédie Française,
the most interesting spectacle in the world; and that yet he is unhappy
and discontented, and unable to find distraction in anything. He tells
his wife that he is in excellent health, but that she must say just the
contrary, in order that there may be a good pretext for his return; and
the better to ensure this, he sends his wife another letter which she
may show to his parents, and in which, at the end of much general news
about Paris, he alludes incidentally to the bad effect on his health of
drinking the waters of the Seine. He regrets having to resort to this
fiction; but considers that he is justified by the circumstances.

Accordingly he made a rapid journey back, leaving his companion to visit
England alone; this expedition to Paris being the only event that ever
broke the even tenor of his life. His French friends rather deserted
him, Morellet in his memoirs going even so far as to speak of him as
half-mad. But it was to his friendship with the Verris that this journey
to Paris was most disastrous, and nothing is more mournful than the petty
jealousies which henceforth completely estranged from him his early
friends. The fault seems to have rested mainly with the two brothers,
whose letters (only recently published) reveal an amount of bitterness
against Beccaria for which it is difficult to find any justification,
and which disposes for ever of all claims of their writers to any real
nobleness of character.[9] They complain to one another of Beccaria’s
Parisian airs, of his literary pride, of his want of gratitude; they
rejoice to think that his reputation is on the wane; that his illustrious
friends at Paris send him no copies of their books; that he gets no
letters from Paris; nay, they even go so far as to welcome the adverse
criticisms of his ‘Dei Delitti,’ and to hope that his ‘golden book’ is
shut up for ever.[10] Alessandro writes to his brother that all his
thoughts are turned to the means of mortifying Beccaria; and the revenge
the brothers think most likely to humiliate him is for Alessandro to
extend the limits of his travels, so as to compare favourably with
Beccaria in the eyes of the Milanese. They delight in calling him a
madman, an imbecile, a harlequin; they lend a ready ear to all that
gossip says in his discredit.[11] In the most trifling action Pietro
sees an intended slight, and is especially sore where his literary
ambition is touched.[12] It angers him that Beccaria should receive
praise for the Apology written against Facchinei, the work having been
entirely written by himself, with some help from his brother, but with
not so much as a comma from the hand of Beccaria.[13] Some books which
Beccaria had brought to him from Paris he imagined were really gifts
to him from the authors; he believed that D’Alembert had sent him his
‘Mélanges’ of his own accord, not at the request of Beccaria, as the
latter had represented; but even Alessandro admits that it was concerning
the books, as Beccaria had said.[14] In short, the whole correspondence
shows that Pietro Verri was extremely jealous of the success which he
himself had helped his friend to attain, and that disappointed literary
vanity was the real explanation of his suddenly transmuted affection.

But, to turn from this unpleasant episode of Beccaria’s life, Catharine
II., soon after his return to Milan, invited him to St. Petersburg, to
assist in the preparation of her intended code of laws. It would seem
from one of Pietro Verri’s letters that Beccaria was at first inclined
to accept the proposal,[15] but it is improbable that any such offer
would really have tempted him to exchange Italian suns for Russian snows,
even if Kaunitz and Firmian had not resolved to remove the temptation,
by making his talents of service at home. This they did by making him
Professor of Political Economy in the Palatine School of Milan, in
November 1768; and his published lectures on this subject form the
largest work he ever wrote.

There is no need to follow in further detail the life of Beccaria, for
from this time to his death twenty-six years afterwards he never did
nor wrote anything which again placed him conspicuously in the world’s
eye.[16] His time was divided between the calls of his family and his
country, but even as a member of the Government he never filled any very
important post nor distinguished himself in any way above his colleagues.
Three years before his death he became a member of a committee for the
reform of the civil and criminal jurisprudence, and he and his former
friend Pietro Verri lived to see many of the ideals of their youth become
the actualities of their manhood, themselves helping to promote their
accomplishment. It is characteristic of Beccaria that on two several
occasions, when the King of Naples came to visit him in his house, he
absented himself purposely from the irksomeness of an interview. So he
lived to the age of fifty-six, little noticed by the world, a lover
of solitude rather than of society, preferring a few friends to many
acquaintances, leading a quiet and useful life, but to the last true to
the philosophy he had professed in his youth, that it is better to live
as a spectator of the world than as one with any direct interest in the
game.



CHAPTER II.

THE GENERAL INFLUENCE OF BECCARIA ON LEGISLATION.


It is not easy in the days of a milder administration of penal laws than
a century ago the most sanguine could have dreamed of to do full justice
to those who laboured, as Beccaria and his friends did, at the peril of
their lives and liberties, for those very immunities which we now enjoy.
We cannot conceive that it should ever have been necessary to argue
against torture, or that it should have been a bold thing to do so; still
less can we conceive that it should ever have had its defenders, or that
men should have been contented with the sophism, that it was indeed an
evil, but an evil which was necessary and inevitable.

The very success of Beccaria’s work has so accustomed us to its result
that we are apt to regard it, as men regard a splendid cathedral in their
native town, with very little recognition of its claims to admiration.
The work is there, they see it, they live under its shadow; they are
even ready to boast of it; but what to them is the toil and risk of
its builders, or the care and thought of its architects? It may be said
that this indifference is the very consummation Beccaria would most have
desired, as it is the most signal proof of the success of his labour.
So signal, indeed, has been that success, that already the atrocities
which men in those days accepted as among the unalterable conditions of
their existence, or resigned themselves to as the necessary safeguards
of society, have become so repulsive to the world’s memory, that men
have agreed to hide them from their historical consciousness by seldom
reading, writing, or speaking of their existence. And this is surely a
fact to be remembered with hopefulness, when we hear an evil like war
with all its attendant atrocities, defended nowadays by precisely the
same arguments which little more than a hundred years ago were urged on
behalf of torture, but which have proved nevertheless insufficient to
keep it in existence.

It may be asked, How far was Beccaria the first to protest against
the cruelty and absurdity of torture? To this it must be replied that
although actually he was not the first, he was the first to do so with
effect. The difference between previous writers on the subject and
Beccaria is the difference between a man whose ideas are in advance of
those of his age and a man who raises the ideas of his age to a level
with his own. So early as the sixteenth century Montaigne, in his
‘Essay on Conscience,’ had said plainly enough that the putting a man
to the rack was rather a trial of patience than of truth; that pain
was as likely to extort a false confession as a true one; and that a
judge, by having a man racked that he might not die innocent, caused him
to die both innocent and racked. Also Grevius Clivensis wrote a work
whilst in prison in Amsterdam, in which he sought to prove that torture
was iniquitous, fallacious, and unchristian.[17] This was published
in 1624; and nearly a century later a Jesuit, Spee, wrote against the
use of torture, as also against the cruel practices in force against
witches.[18] And in later days Montesquieu, twenty years before Beccaria,
had gone so far as to say that, since a civilised nation like England
had abandoned torture without evil consequences, it was therefore
unnecessary; but he followed the subject to no definite conclusion.

Beccaria himself was ready enough to refer all his thoughts to French
inspiration, and to lay aside all claim to originality, with respect
to which D’Alembert once wrote to him: ‘A man such as you has no need
of a master, still less of a master like myself. You are like the
Titus Curtius of Tacitus, _ex se natus_, nor have your offspring any
grandparent. A father like yourself is enough for them.’

But the honour of having been the first country to lay aside the use of
torture undoubtedly belongs to England, just as the honour of having
been the first in modern times to abolish capital punishment, except for
political offences, belongs to Russia; and the practical example thus
afforded by our laws probably did more for the general abolition of the
custom than any written treatise on the subject ever would have done
alone. English and foreign jurists long delighted to honour the Common
Law for its non-recognition of torture. But though torture was contrary
to the Common Law, and even to Magna Charta, it was not contrary to
Prerogative; and until the Commonwealth it was used as matter of course
in all grave accusations at the mere discretion of the monarch and Privy
Council.[19] Therefore Beccaria pointed to England as a country which did
not use torture with more justice than Grotius had done, who, when the
rack was still in use amongst us, quoted England as a proof that people
might safely live without torture.

It is of interest to trace some of the practical results which followed
Beccaria’s treatise during the thirty years that he lived after its
publication; that is, from the year 1764 to 1794.

The country in which the first attempt was made to apply his principles
to practice was Russia, where Catharine II. was anxious to establish a
uniform penal code, based on the liberal ideas of the time, which then
found more favour in St. Petersburg than they did at Paris. For this
purpose in 1767 she summoned to Moscow from all the provinces of Russia
those 652 deputies who formed the nearest approach in the history of that
country to a Russian Parliament. In the instructions that were read to
this assembly, as the basis for the proposed codification of the laws,
the principles propounded were couched not only in the spirit but often
in the very words of the author of the ‘Crimes and Punishments.’ The
following are examples:—

    Laws should only be considered as a means of conducting mankind
    to the greatest happiness.

    It is incomparably better to prevent crimes than to punish them.

    The aim of punishment is not to torment sensitive beings.

    All punishment is unjust that is unnecessary to the maintenance
    of public safety.

    In methods of trial the use of torture is contrary to sound
    reason. Humanity cries out against the practice and insists on
    its abolition.

    Judgment must be nothing but the precise text of the law, and
    the office of the judge is only to pronounce whether the action
    is contrary or conformable to it.

    In the ordinary state of society the death of a citizen is
    neither useful nor necessary.

The following especially is from Beccaria:—

    Would you prevent crimes, contrive that the laws favour less
    different orders of citizens than each citizen in particular.
    Let men fear the laws and nothing but the laws. Would you
    prevent crimes, provide that reason and knowledge be more and
    more diffused. To conclude: the surest but most difficult
    method of making men better is by perfecting education.[20]

Although these instructions were not so much laws as suggestions of
laws, it is obvious what their effect must have been when published and
diffused throughout Russia. That they were translated into Latin, German,
French, and Italian proves the interest that was taken in Europe by this
first attempt to apply the maxims of philosophy to practical government.

In France Beccaria’s book became widely popular, and many writers
helped to propagate his ideas, such as Servan, Brissot, Lacretelle, and
Pastoret. Lacretelle attributes the whole impulse of criminal law reform
to Beccaria, while regretting that Montesquieu had not said enough to
attract general attention to the subject. His book is said to have so
changed the spirit of the old French criminal tribunals, that, ten years
before the Revolution, they bore no resemblance to their former selves.
All the younger magistrates gave their judgments more according to the
principles of Beccaria than according to the text of the law.[21] The
result of the agitation appeared in the Royal Ordinances of 1780 and
1788, directed to the diminution of torture, the only reforms which
preceded the Revolution. It is said that the last time anyone was
tortured in France was in the year 1788, the last year of the _ancien
régime_. At the very beginning of the Revolution more than a hundred
different offences ceased to incur the penalty of death.

The most successful adoption of Beccaria’s principles of punishment
occurred in Tuscany, under the Grand Duke Leopold. When he ascended
the ducal throne, the Tuscans were the most abandoned people of all
Italy. Robberies and murders were none the less frequent for all the
gallows, wheels, and tortures which were employed to repress them. But
Leopold in 1786 resolved to try Beccaria’s plan, for which purpose
he published a code, proportioning punishments to crimes, abolishing
mutilation and torture, reducing the number of acts of treason, lessening
confiscations, destroying the right of asylum, and above all abolishing
capital punishment even for murder. The result was, says a contemporary,
that Tuscany, from having been the land of the greatest crimes and
villanies, became ‘the best ordered State of Europe.’[22] During twenty
years only five murders were committed in Tuscany, whilst at Rome, where
death continued to be inflicted with great pomp, as many as sixty were
committed within the space of three months.[23]

Torture was definitely and totally abolished in Portugal in 1776, in
Sweden in 1786,[24] and in Austria in 1789. In the latter country,
indeed, it had been abolished by Maria Theresa sixteen years before
in her German and Polish provinces; and the Penal Code of Joseph II.,
published in 1785, was an additional tribute to the cause of reform.
Secret orders were even given to the tribunals to substitute other
punishments for hanging, yet so that the general public should be unaware
of the change. There was the greatest anxiety that it should not be
thought that this change was out of any deference for Beccaria or his
school. ‘In the abolition of capital punishment,’ said Kaunitz, ‘his
Majesty pays no regard at all to the principles of modern philosophers,
who, in affecting a horror of bloodshed, assert that primitive justice
has no right to take from a man that life which Nature only can give him.
Our sovereign has only consulted his own conviction, that the punishment
he wishes substituted for the capital penalty is more likely to be
felt by reason of its duration, and therefore better fitted to inspire
malefactors with terror.’

Nor was it only in Europe that Beccaria’s influence thus prevailed, for
as soon as the American Colonies had shaken off their English connection
they began to reform their penal laws. When the Revolution began there
were in Pennsylvania nearly twenty crimes punishable by death, and within
eighteen years of its close the penal code was thoroughly transformed,
it being ordained in 1794 that no crime should any longer be capital
but murder in the first degree. It is true that this was but a return
to the principles adopted by Penn on the settlement of the colony, but
Penn’s penal code was annulled by Queen Anne, and the English Government
insisted on a strict adherence to the charter from Charles II., which
enjoined the retention of the Statute and the Common Law of England.
When, therefore, the new Constitution was formed in 1776, the arguments
of Beccaria gave fresh life to the memories of Penn.[25]

Thus before his death Beccaria saw torture almost entirely abolished in
Europe, and a general tendency spreading to follow the spirit of the
changes he advocated in other details of criminal law. Probably no other
theorist ever lived to witness so complete an adoption of his principles
in practice, or so thorough a transformation of the system he attacked.
It is possible that he but gave body and voice to ideas of change already
widely prevalent in his time; but the merit of a man belongs none the
less to himself, who changes the instability of public opinion into an
active and solid force, and who gives distinct expression to the longings
vaguely felt by a multitude.

But if the interest of Beccaria’s chapter on Torture is now merely
historical, an interest that is actual still attaches to his advocacy
of the total abolition of capital punishment, this being the cause with
which his name is most generally associated, and for which it is likely
to be longest remembered. Previous writers, like Montaigne, if they
deprecated the excess or severity of the death penalty, never thought of
urging that it should be abolished altogether.

There is an apparent discrepancy in Beccaria’s first condemning death as
too severe a punishment and then recommending lifelong servitude as one
of more deterrent power; but Beccaria would have said that the greater
certainty of the latter more than compensated for the greater severity
of the other. As regards the relative power of the two punishments, it
probably varies in different individuals, some men having a greater
dread of the one, and some of the other. The popular theory certainly
goes too far, when it assumes that all men have a greater dread of the
gallows than of anything else. When George III. once granted a pardon
to the female convicts in Newgate on condition of their transportation
to New South Wales, though seventeen of them accepted the offer, there
were yet six who preferred death to a removal from their native country.
It is also stated by Howard that in Denmark the punishment in cases of
infanticide, namely, imprisonment for life, with labour and an annual
whipping on the place of the crime, was ‘dreaded more than death,’ which
it superseded as a punishment.

It is, however, probable that the frequency of any crime bears little
or no relation to the punishment affixed to it. Every criminal begins
a new career, in which he thinks less of the nature of his punishment
than of his chances of eluding it. Neither tradition nor example count
with him for much in his balance of the chances in his own favour. The
law can never be so certain in its execution as it is uncertain in its
application, and it is the examples of impunity, not of punishment, to
which men turn when they violate the law. So that whether the punishment
for murder be an excruciating death, as in ancient Rome, or a mere fine,
as in ancient England, the motives for escape are always the same, the
means to effect it are always the same, and the belief in his power
to effect it is correspondingly powerful in every criminal guilty of
homicide.

Even if we assume that death is absolutely the severest penalty devisable
by the law, and that as a punishment for murder it is not too severe, it
remains certain, that, relatively to the circumstances of a trial for
murder, to the reluctance of judges or juries to pass an irretrievable
sentence, to their fear of error, to their conscientious regard for human
life, it is really a much less terrible danger for a malefactor to face
than a penalty which would justify fewer hopes of impunity.

Nor are such scruples to convict unreasonable, when we consider the
number who on apparently conclusive evidence have been falsely and
irrevocably condemned to death. Playgoers who have seen ‘The Lyons Mail’
will remember how barely Lesurques, the Parisian gentleman, escaped
punishment for the guilt of Dubosc, the robber and murderer. But the
moral of the story is lost in the play, for Lesurques actually was
executed for the crime of Dubosc, by reason of the strong resemblance
he bore to him, the latter only receiving the due reward for his crimes
after the innocent man had died as a common murderer on the scaffold.
Then there are cases in which, as in the famous case of Calas, some one
having committed suicide, some one else is executed as the murderer. That
dead men tell no tales is as true of men hung as of men murdered, and the
innocence of an executed man may be proved long afterwards or not at all.

Where there is no capital punishment, as in Michigan, a man’s 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 prisoner’s innocence 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 priest’s liberation was applied for, it was
found that he had died only a few months before.[26]

That the scruple to convict diminishes the certainty of punishment, and
therefore raises hopes of impunity, is illustrated by the case of two
American brothers who, desirous to perpetrate a murder, waited till
their victim had left their State, in which capital punishment had been
abolished, and had betaken himself to a State which still retained it,
before they ventured to execute their criminal intention. That such
reluctance to convict is often most injurious to the public is proved by
the case of a woman at Chelmsford who some years ago was acquitted, in
spite of strong evidence, on a charge of poisoning, and who, before her
guilt was finally proved, lived to poison several other persons who would
otherwise have escaped her arts.[27]

Such considerations as these will, perhaps, lead some day to the
abolition of capital punishment. The final test of all punishment is
its efficiency, not its humanity. There is often more inhumanity in a
long sentence of penal servitude than in a capital sentence, for the
majority of murderers deserve as little mercy as they get. The many
offences which have ceased to be capital in English law yielded less to
a sense of the inhumanity of the punishment as related to the crime than
to the experience that such a punishment led to almost total impunity.
The bankers, for instance, who petitioned Parliament to abolish capital
punishment for forgery, did so, as they said, because they found by
experience that the infliction of death, or the possibility of its
infliction, prevented the prosecution, the conviction, and the punishment
of the criminal; therefore they begged for ‘that protection for their
property which they would derive from a more lenient law.’

For the same reason it is of little avail to call in question, as
Beccaria does, the right of society to inflict death as a punishment.
There may be a distinction between the right of society and its might,
but it is one of little comfort to the man who incurs its resentment. A
man in a dungeon does better to amuse himself with spiders and cobwebs
than with reflections on the encroachment of the law upon his liberty,
or with theories about the rights of government. Whenever society has
ceased to exercise any of its powers against individuals, it has not been
from the acceptance of any new doctrine as to its rights, but from more
enlightened views as to its real interests, and a cultivated dislike of
cruelty and oppression.

When Beccaria wrote against capital punishment, one great argument
against its abolition was its practical universality. It had been
abolished in ancient Egypt by king Sabaco,[28] in the best period of the
Roman Republics by the Porcian law, and in the time of the Roman Empire
by Calo-Johannes.[29] But these cases were too remote from modern times
to lend much weight to the general argument. At that time Russia alone of
all the countries in the world had, from the accession of the Empress
Elizabeth, afforded a practical example of the fact, that the general
security of life is not diminished by the withdrawal of the protection of
capital punishment. But since that time this truth has become less and
less a theory or speculation, and it now rests on the positive experience
of no inconsiderable portion of the world. In Tuscany, Holland, Portugal,
Russia, Roumania, Saxony, Prussia, Belgium, and in ten of the United
States of America, the death penalty has either been abolished or
discontinued; and can it be thought that the people of those countries
are so indifferent to the safety of their lives as to be content with a
less efficient legal protection than is vouchsafed in countries where the
protection is death?

The opponents of capital punishment may fairly, therefore, draw an
argument in their favour from the fact that so many parts of the world
have found it not incompatible with the general security of life to erase
the death penalty from their list of deterrent agencies. It is better
to rely on so plain a fact than on statistics which, like two-edged
weapons, often cut both ways. The frequency of executions in one country
and their total absence in another may severally coexist with great
numerical equality in the number of murders committed in each. It is
always better, therefore, to look for some other cause for a given number
of murders than the kind of punishment directed to their repression.
They may depend on a thousand other things, which it is difficult to
ascertain or eliminate. Thus both in Bavaria, where capital punishment
has been retained, and in Switzerland, where it had been abolished in
1874, murders have increased greatly in recent years; and this fact has,
with great probability, been attributed to the influence of bad habits
contracted during the Franco-German war.

Capital punishment being less general in the world now than torture was
when Beccaria wrote, it seems to be a fair logical inference that it
is already far advanced towards its total disappearance. For the same
argument which Voltaire applied in the case of torture cannot fail sooner
or later to be applied to capital punishment. ‘If,’ he says, ‘there were
but one nation in the world which had abolished the use of torture; and
if in that nation crimes were no more frequent than in others, … its
example would be surely sufficient for the rest of the world. England
alone might instruct all other nations in this particular; but England is
not the only nation. Torture has been abolished in other countries, and
with success; the question, therefore, is decided.’ If in this argument
we read capital punishment instead of torture, murders instead of crimes,
and Portugal instead of England, we shall best appreciate that which is
after all the strongest argument against capital punishment, namely,
that it has been proved unnecessary for its professed object in so many
countries that it might safely be relinquished in all.



CHAPTER III.

THE INFLUENCE OF BECCARIA IN ENGLAND.


Whatever improvement our penal laws have undergone in the last hundred
years is due primarily to Beccaria, and to an extent that has not always
been recognised. Lord Mansfield is said never to have mentioned his name
without a sign of respect. Romilly referred to him in the very first
speech he delivered in the House of Commons on the subject of law reform.
And there is no English writer of that day who, in treating of the
criminal law, does not refer to Beccaria.

Even the idea of public utility as the final test and standard of
morality is derived from Beccaria, and the famous expression, ‘the
greatest happiness of the greatest number,’ occurs, in capital letters,
in the very first page of the ‘Delitti e delle Pene.’[30] Bentham himself
fully acknowledged this. ‘Priestley was the first,’ he says, ‘unless it
was Beccaria, who taught my lips to pronounce this sacred truth: that
the greatest happiness of the greatest number is the foundation of
morals and happiness.’ And with reference to his idea of the measurable
value of different pains and pleasures, he says: ‘It was from Beccaria’s
little treatise on Crimes and Punishments that I drew, as I well
remember, the first hint of this principle, by which the precision
and clearness and incontestableness of mathematical calculations are
introduced for the first time into the field of morals.’

English philosophy and legislation, therefore, owe enough to Beccaria
for his treatise never to be forgotten among us. Standing, as it does,
in reference to law as Bacon’s ‘Novum Organon’ to science, or Descartes’
‘Principia’ to philosophy, and representing a return to first principles
and rejection of mere precedent in the matter of penal laws, it will
never fail to gratify those who, with little admiration for law in
the concrete, can yet find pleasure in studying it in the abstract.
Most men will turn readily from a system built up, as our own is, of
unintelligible distinctions, and based on authority rather than on
experience, to a system where no distinctions exist save those which are
derived from the nature of things and are founded on the real differences
that distinguish the moral actions of mankind.

The first trace of Beccaria’s influence in England appeared in the first
edition of Blackstone’s Commentaries, of which the book on the Criminal
Laws was published the very next year after the appearance of the
Italian treatise. That Blackstone was well acquainted with it is proved
by his frequent reference to it in treating of crimes. From Beccaria he
argues that the certainty of punishments is more effectual than their
severity, and finds it absurd to apply the same punishment to crimes of
different malignity. Blackstone was also the first professional lawyer
to find fault with the frequency of capital punishment in England, and
to point out as ‘a melancholy truth’ the presence of 160 actions in the
statute book which were felonies without benefit of clergy.

But there was one great fallacy, pervading our whole criminal law, which
Blackstone left undetected and untouched. This was, that the severity of
punishment must be augmented in proportion to the increase of temptation,
and that the measure of the guilt of a crime lay in the facility with
which it might be committed. ‘Among crimes of an equal malignity,’ says
Blackstone, ‘those [deserve most punishment, as most injurious] which a
man has the most frequent and easy opportunities of committing, which
cannot so easily be guarded against as others, and which, therefore, the
offender has the strongest inducement to commit.’ And on this principle
he finds it reasonable, that, while the theft of a pocket-handkerchief
should be a capital crime, the theft of a load of hay should only involve
transportation.

There was not an anomaly in our old criminal practice which was not
based on this theory—a theory which had, indeed, its precedent in the
old Hebrew law that punished more severely a theft from a field than a
theft from a house; and the first writer who protested against it was
Eden, afterwards Lord Auckland, who in 1771 published his ‘Principles
of Penal Law,’ one of the best books ever written on the subject. The
influence of Beccaria is apparent in Eden’s work, not only by his
direct reference to it, but by his spirit of declared opposition to the
actual practice of the law. Two instances of its tendency will suffice.
‘Imprisonment, inflicted by law as a punishment, is not according to the
principles of wise legislation. It sinks useful subjects into burthens
on the community, and has always a bad effect on their morals; nor can
it communicate the benefit of example, being in its nature secluded from
the eye of the people.’ And again: ‘Whatever exceeds simple death is mere
cruelty. Every step beyond is a trace of ancient barbarity, tending only
to distract the attention of the spectators and to lessen the solemnity
of the example. There is no such thing as vindictive justice; the idea is
shocking.’

Men of letters as a rule did not speak with this boldness, but in
conscious opposition to professional and popular feeling expressed their
doubts with a hesitation that was almost apologetic. So, for example,
Goldsmith could not ‘avoid even questioning the validity of that right
which social combinations have assumed of capitally punishing offences of
a slight nature.’[31] Strange, that in England such an argument should
ever have seemed a daring novelty, a thing to be said tentatively and
with reserve!

Lord Kames attacked our criminal law in a still more indirect way, by
tracing punishment historically to the revenge of individuals for their
private injuries, and by extolling the excellence of the criminal law of
the ancient Egyptians. They, he said, avoided capital punishments as much
as possible, preferring others which equally prevented the recommission
of crimes. Such punishments effected their end ‘with less harshness
and severity than is found in the laws of any other nation, ancient or
modern.’[32]

Nothing could be more interesting than Lord Kames’ account of the
growth of criminal law, from the rude revenges of savages to the legal
punishments of civilised States; but it was probably intended by its
author less as an historical treatise than as a veiled attack upon the
penal system of his country. It is, therefore, a good illustration of the
timidity of the Theoretical school against the overwhelming forces of
the Practical school of law, which, of course, included the great body
of the legal profession; and it is the first sign of an attempt to apply
the experience of other countries and times to the improvement of our own
jurisprudence.

It certainly should moderate our reverence for ancestral wisdom to find
even a man like Fielding, the novelist, speaking, in his Charge to the
Grand Jury of Middlesex, of the pillory and the loss of a man’s ears as
‘an extremely mild’ punishment for a bad case of libel, or declaring our
punishments of that time to be ‘the mildest and most void of terror of
any other in the known world.’ Yet Fielding recognised several of the
true principles of punishment. He attributed the increase of crime to the
great abuse of pardons, which, he said, had brought many more men to the
gallows than they had saved from it. He also advocated the diminution of
the number of executions, their greater privacy and solemnity, whilst he
recommended their following as closely as possible on conviction, that
pity for the criminal might be lost in detestation for his crime.[33]

But that the humanity of the speculative school of law was not without
some influence on public opinion, as well as to a certain extent a
reflection of it, is proved by a few abortive attempts in Parliament
to mitigate the severity of our penal code in the latter half of the
last century. Even so early as 1752 the Commons agreed to commute the
punishment of felony in certain cases to hard labour in the docks; but
the Lords refused their consent, as from that time onward for more than
eighty years they regularly continued to refuse it to all mitigation
of the laws affecting crime. It must ever remain a matter of regret,
that the _rôle_ of the House of Lords in the matter of criminal law
reform should have continued from 1752 to 1832 to be one of systematic
and obstinate opposition to change, and an opposition which had no
justification in the general level of national enlightenment.

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] 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]

But whatever tendency might have been arising in theory or in practice
about this time to mitigate the severity of our laws was destined to
receive a dead check from the publication in 1784 and 1785 respectively
of two books which deserve historical recollection. The first was
Madan’s ‘Thoughts on Executive Justice,’ in which the author, adopting
Beccaria’s principle of the certainty of punishment as the best check on
crime, advocated an unflinching carrying out of the laws as they stood.
‘It was,’ says Romilly, ‘a strong and vehement censure upon the judges
and the ministers for their mode of administering the law, and for the
frequency of the pardons which they granted. It was very much read, and
certainly was followed by the sacrifice of many lives.’

The year before its publication 51 malefactors were executed in London,
the year after 97, whilst not long afterwards was seen the rare spectacle
of nearly 20 criminals hung at a time. Romilly was so much shocked at
what he considered the folly and inhumanity of Madan’s book that he wrote
a short tract of observations upon it, of which he sent a copy to each
of the judges. But it is characteristic of the feeling of that time that
only a hundred copies of his tract were sold. It was, however, from that
time that Romilly began to make the criminal law his special study, so
that to Madan indirectly our country owes the efforts of Romilly.

The other book was from a man whom above all others our forefathers
delighted to honour. This was Archdeacon Paley, who in 1785 published his
‘Moral and Political Philosophy,’ and dedicated it to the then Bishop of
Carlisle. Nor is this fact of the dedication immaterial, for the said
Bishop was the father of the future Lord Chief Justice Ellenborough, who
enjoys the melancholy fame of having been the inveterate and successful
opponent of nearly every movement made in his time, in favour of the
mitigation of our penal laws. The chapter on Crimes and Punishments
in Paley and the speeches of Lord Ellenborough on the subject in the
House of Lords are, in point of fact, the same thing; so that Paley’s
chapter is of distinct historical importance, as the chief cause of the
obstruction of reform, and as the best expression of the philosophy of
his day. If other countries adopted Beccaria’s principles more quickly
than our own, it was simply that those principles found no opponents
anywhere equal to Archdeacon Paley and his pupil, Lord Ellenborough.

Paley, of course, defended the thing he found established; nor,
considering the system he had to defend, did he state the case for it
without ingenuity. He had, indeed, nothing to add to what Blackstone
had said regarding punishment, namely, that it was inflicted, not in
proportion to the real guilt of an offence, but in proportion to its
facility of commission and difficulty of detection. To steal from a shop
was not more criminal than to steal from a house, but, as it was more
difficult to detect, it was more severely punished. Sheep, horses, and
cloth on bleaching-grounds were more exposed to thieves than other kinds
of property; therefore their theft required a stronger deterrent penalty.

There was only one offence which Paley thought the English law punished
too severely, and that was the offence of privately stealing from the
person. In all other cases he defended the application of the capital
penalty. It was, he thought, the peculiar merit of the English law that
it swept into the net every crime which under any possible circumstance
might merit death, whilst it only singled out a few cases in each class
of crime for actual punishment; so that whilst few really suffered death,
the dread and danger of it hung over the crimes of many. The law was not
cruel, for it was never meant to be indiscriminately executed, but left a
large margin for the exercise of mercy.

Paley agreed with Beccaria that the certainty of punishment was of
more consequence than its severity. For this reason he recommended
‘undeviating impartiality in carrying the laws into execution;’ he blamed
the ‘weak timidity’ of juries, leading them to be over-scrupulous about
the certainty of their evidence, and protested against the maxim that
it was better for ten guilty men to escape than for one innocent man
to perish. A man who fell by a mistaken sentence might, he argued, be
considered as falling for his country, because he was the victim of a
system of laws which maintained the safety of the community.

Such was the reasoning which for nearly half a century governed the
course of English history, and which for all that time it was a heresy to
dispute.

Barbarous spectacles were, Paley thought, justly found fault with, as
tending to demoralise public feeling. ‘But,’ he continued, ‘if a mode
of execution could be devised which would augment the horror of the
punishment, without offending or impairing the public sensibility by
cruel or unseemly exhibitions of death, it might add something to the
efficacy of example; and by being reserved for a few atrocious crimes
might also enlarge the scale of punishment, an addition to which seems
wanting, for as the matter remains at present you hang a malefactor for
a simple robbery, and can do no more to the villain who has poisoned his
father. Something of the sort we have been describing was the proposal,
not long since suggested, of casting murderers into a den of wild beasts,
where they would perish in a manner dreadful to the imagination, yet
concealed from the view.’ It is interesting after this to learn, that
Paley thought torture properly exploded from ‘the mild and cautious
system of penal jurisprudence established in this country,’ and that (to
do him justice) he urged private persons to be tender in prosecuting, out
of regard for the difficulty of prisoners to obtain an honest means of
livelihood after their discharge.

Howard’s book on the Lazarettos of Europe appeared four years after
Paley’s work. Although it did not deal directly with crimes, it
indirectly treated of their connection with punishment. Howard was able
to show that whilst in Middlesex alone 467 persons had been executed in
nine years, only six had been executed in Amsterdam; that for a hundred
years the average number of executions had been one a year at Utrecht
and that for twenty-four years there had not even been one there. The
inference therefore was that the diminution of punishment had a direct
effect in diminishing crime. Howard also advocated the restriction of
capital punishment to cases of murder, arson, and burglary; highwaymen,
footpads, and habitual thieves should, he thought, end their days in a
penitentiary rather than on the gallows. Even this was a bold proposal,
in a state of society yet in bondage to Paley.

Something, however, occurred more fatal to the reform of our penal laws
than even the philosophy of Paley, and that was the French Revolution.
Before 1790 there had been 115 capital offences in France; so that to
alter the criminal law in England was to follow a precedent of unpleasant
auspices. Reform not unnaturally savoured of revolution, and especially
a reform of the penal laws. In 1808 Romilly said he would advise anyone,
who desired to realise the mischievous effects of the French Revolution
in England to attempt some legislative reform on humane and liberal
principles. With bitterness he tells the story of a young nobleman, who,
addressing him insolently at the bar of the House of Commons, informed
him that he for his part was for hanging all criminals. Romilly observed
that he supposed he meant punishments should be certain and the laws
executed, whatever they were. ‘No, no,’ was the reply, ‘it isn’t that.
There is no good done by mercy. They only get worse: I would hang them
all up at once.’ And this represented the prevalent opinion. Windham,
in a speech against the Shoplifting Bill, inquired, ‘Had not the French
Revolution begun with the abolition of capital punishment in every case?…
Was such a system as this was to be set up without consideration against
that of Dr. Paley!’[36]

Romilly’s first idea with respect to the reform of the criminal law was
a sufficiently humble one. It was nothing more than to raise the amount
of the value of the property, the theft of which should expose a man to
death. Twelvepence, as fixed by the statute of Elizabeth, originally
signified a much greater theft than it had come to signify after a lapse
of two centuries. Romilly had at first no idea of removing the death
penalty for theft; his only hope was to get it affixed to a graver theft
than the larceny of a shilling. Yet even so he could not bring himself to
consult with the judges on the subject of his intended bill, for ‘he had
not the least hope they would approve of the measure.’

It was by the advice of Scarlett, Lord Abinger, that he ventured to aim
at the repeal of all statutes punishing mere theft with death; but,
deeming it hopeless to urge their abolition all at once, he resolved
to begin with that famous statute of Elizabeth which made it a capital
crime to steal a handkerchief or anything else from the person of another
which was of the value of a shilling. His bill to effect this passed
both Houses the same year it was introduced (1808), in spite of the
strong opposition of the great legal dignitaries in either House. The
statute was based, said Judge Burton, on the experience of two and a
half centuries. The alternative punishment of transportation for seven
years, said the Attorney-General, would be too short; it should be for
more years than seven, if not for life. If any change of punishment were
necessary, said Lord Ellenborough, it should be transportation for life.

Such was legal opinion generally as expressed by its ablest
representatives with respect to the due punishment for pocket-picking not
a hundred years ago. It is easy now to smile at such errors, and, at the
barren waste of wisdom spent in their defence, but what weight after that
can be attached, on subjects of the general policy of the law, to the
opinion of its chief professors? Can it be too much regretted that Lord
Chief Justice Ellenborough should have sacrificed to his own authority,
whilst alive, the authority of all judges ever destined to succeed him?

The success which attended Romilly’s Privately Stealing Bill and the
failure which attended almost all his other efforts was probably due
to the fact that larceny from the person without violence was, as has
been said, the one single kind of offence which had Paley’s sanction
for ceasing to be capital. But the very success of his first bill was
the chief cause of the failure of his subsequent ones. For, capital
punishment having been removed for mere pilfering, prosecutions became
more frequent, and the opponents of reform were thus able to declare that
an increase of theft had been the direct consequence of the abolition
of the capital penalty. It was in vain to point out, that the apparent
increase of theft was due to the greater readiness of individuals to
prosecute and of juries to convict, when a verdict of guilt no longer
involved death as the consequence.

Romilly also injured his cause by a pamphlet on the criminal law, in
which he criticised severely the doctrines of Paley. So strongly was
this resented, that in 1810 his bill to abolish capital punishment for
stealing forty shillings from a dwelling-house did not even pass the
Commons, being generally opposed, as it was by Windham, because the
maintenance of Paley’s reputation was regarded as a great object of
national concern.[37] That is to say, men voted not so much against the
bill as against the author of a heresy against Paley.

In those days to steal five shillings’ worth of goods from a shop
was a capital offence, and Paley had explained the philosophy of the
punishment. It would be tedious to follow the course of Romilly’s bill
against this law, called the Shoplifting Act, through the details of
its history. Suffice it to say that it passed the Commons in 1810,
1811, 1813, 1816, but was regularly thrown out by the Lords, and only
definitely became law many years later. But though the debates on the
subject no longer possess the vivid interest that once belonged to them,
and are best left to the oblivion that enshrouds them, it is instructive
to take just one sample of the eloquence and arguments, that once
led Lords and Bishops captive and expressed the highest legal wisdom
obtainable in England.

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 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.

Need it be said that the House of Lords paused, as they were entreated to
do, and that they paused and paused again, in a manner more suggestive
of the full stop than the comma, generally out of deference to the
same authority? Romilly was indignant that so many prelates voted
against his bills; but could they have done otherwise, when the best
legal authorities in England urged that it would be fatal to vote for
them?—when they were gravely told that if a certain bill passed, they
would not know whether they stood on their heads or on their feet?

Lord Ellenborough was so hard upon ‘speculative humanity,’ as opposed
to real practical common sense, that the speculative school are never
likely to forget him. But they owe too much to him not to forgive him;
since he is the standing proof, that in matters of the general policy of
the law professional opinion is a less trustworthy guide than popular
sentiment, and that in questions of law reform it is best to neglect the
fossil-wisdom of forgotten judges, and to seek the opinion of Jones round
the corner as readily as that of Jones upon the Bench.

A strong feeling against the pillory was aroused by the sentence passed
against Lord Cochrane in 1814, by which, for supposed complicity in
a plot to raise the price of the Funds, he was condemned to a year’s
imprisonment, to a fine of 1000_l._, and to stand in the pillory. A bill
for the abolition of the pillory accordingly passed the Commons the
very next year, but Lord Ellenborough succeeded again in bringing the
Upper House to a pause: the pillory forsooth was as old as 1269; it was
spoken of by the old historians; it was not confined to this country,
for Du Cange spoke of it on the Continent. For these reasons the pillory
remained a legal punishment down to the first year of the present reign.

Yet Lord Ellenborough was one of the best judges known to English
history; he was, according to his biographer, a man ‘of gigantic
intellect,’ and one of the best classical scholars of his day; and if he
erred, it was with all honesty and goodness of purpose. The same must be
said of Lord Chief Justice Tenterden’s opposition to any change in the
law of forgery. His great merits too as a judge are matter of history,
yet when the Commons had passed the bill for the abolition of capital
punishment for forgery, Lord Tenterden assured the House of Lords
that they could not ‘without great danger take away the punishment of
death.’ ‘When it was recollected how many thousand pounds, and even tens
of thousands, might be abstracted from a man by a deep-laid scheme of
forgery, he thought that this crime ought to be visited with the utmost
extent of punishment which the law then wisely allowed.’ The House of
Lords again paused in submission to judicial authority.

Sir James Mackintosh, who succeeded Romilly as law reformer, in 1820
introduced with success six penal reform bills into the House of Commons;
but the Lords assented to none of them that were of any practical
importance to the country. They agreed, indeed, that it should no longer
be a capital offence for an Egyptian to reside one year in the country,
or for a man to be found disguised in the Mint, or to injure Westminster
Bridge; but they did not agree to remove the capital penalty for such
offences as wounding cattle, destroying trees, breaking down the banks
of rivers, or sending threatening letters. It was feared that if the
punishment were mitigated, the whole of Lincolnshire might be submerged,
whole forests cut down, and whole herds destroyed. As to the Shoplifting
Bill, they would not let death be abolished for stealing in shops
altogether, but only where the value of the theft was under 10_l._ That
seemed the limit of safe concession.

Sir Robert Peel, who was the first Ministerial law reformer, succeeded
in getting the death penalty repealed for several crimes which were
practically obsolete, but forty kinds of forgery alone still remained
capital offences.

So great, however, did the changes appear to be, that Sir James
Mackintosh declared, towards the close of his life, that it was as if he
had lived in two different countries, such was the contrast between the
past and the present. Yet Sir James died in the very year that the first
Reform Bill passed, and it was not till after that event that any really
great progress was made towards ameliorating the penal laws.

It is well known that Lord Tenterden refused ever to sit again in the
House of Lords if the Reform Bill became law, and that he predicted that
that measure would amount to the political extinction of the Upper House.
As regards the history of our criminal law Lord Tenterden was right, for
the period of long pauses had passed away, and rapid changes were made
with but short intervals of breathing-time. From the year the Reform
Bill passed the school of Beccaria and Bentham achieved rapid successes
in England. In 1832 it ceased to be capital to steal a horse or a sheep,
in 1833 to break into a house, in 1834 to return prematurely from
transportation, in 1835 to commit sacrilege or to steal a letter. But
even till 1837 there were still 37 capital offences on the statute-book;
and now there are only two, murder and treason. Hanging in chains was
abolished in 1834; the pillory was wholly abolished in 1837; and the same
year Ewart, after many years’ struggle, obtained for prisoners on trial
for felony the right (still merely a nominal one)[39] of being defended
by counsel.

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. Paley’s 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 Beccaria’s treatise; and the growing demand for
increasing the security of human life by the institution of a penalty,
more effective because more certain, than that at present in force,
points to the still further triumph of Beccaria’s principles, likely
before long to mark the progress of his influence in England.



CHAPTER IV.

THE PROBLEMS OF PENOLOGY.


If we would bring to the study of Beccaria’s treatise the same
disposition of mind with which he wrote it, we must enter upon the
subject with the freest possible spirit of inquiry, and with a spirit of
doubtfulness, undeterred in its research by authority however venerable,
by custom however extended, or by time however long. It has been from too
great reverence for the wisdom of antiquity that men in all ages have
consigned their lives and properties to the limited learning and slight
experience of generations which only lived for themselves and had no
thought of binding posterity in the rules they thought suitable to their
own times. Beccaria sounded the first note of that appeal from custom
to reason in the dominion of law which has been, perhaps, the brightest
feature in the history of modern times, and is still transforming the
institutions of all countries.

The object, therefore, of this chapter is chiefly negative, being none
other than to raise such mistrust of mere custom, and so strong a sense
of doubt, by the contradictions apparent in existing laws and theories,
that the difficulties of their solution may tempt to some investigation
of the principles on which they rest.

That Penology is still only in its experimental stage as a science,
in spite of the progress it has made in recent times, is clear from
the changes that are so constantly being made in every department of
our penal system. We no longer mutilate nor kill our criminals, as
our ancestors did in the plenitude of their wisdom; we have ceased to
transport them, and our only study now is to teach them useful trades
and laborious industry. Yet whether we shall better bring them to love
labour by compulsory idleness or by compulsory work, whether short
imprisonment or long is the most effective discipline, whether seclusion
or association is least likely to demoralise them, these and similar
questions have their answers in a quicksand of uncertainty. This only
may experience be said to have yet definitely proved, that very little
relation exists in any country between the given quantity of crime and
the quantity or severity of punishment directed to its prevention. It has
taken thousands of years to establish this truth, and even yet it is but
partially recognised over the world.

It would appear at first sight that there could be little to say about
crimes and punishments, so obvious and self-evident seem the relations
that exist between them. Many people still believe in an innate sense
of justice in mankind, sufficient always to prevent wide aberrations
from equity. Is it, they might ask, conceivable that men should ever
lose sight of the distinction between the punishment of guilt and the
punishment of innocence?—that they should ever punish one equally with
the other? Yet there is no country in the world which in its past or
present history has not involved the relations of a criminal in the
punishment inflicted on him; and in savage countries generally it is
still common to satisfy justice with vengeance on some blood-relation of
a malefactor who escapes from the punishment due to his crime.

It would also seem to demand no great insight to perceive that a
voluntary intention must be a universal attribute of a criminal action.
No one would think of punishing a man who in his sleep killed another,
although, if the injury to society be the measure of punishment, his
crime is equivalent to intentional homicide. Yet at Athens an involuntary
murderer was banished until he could, give satisfaction to the relatives
of the deceased; and in China, though the penal code generally separates
intentional from accidental crimes, anyone who kills a near relation
by accident or commits certain kinds of arson by accident undergoes
different degrees of banishment and a fixed number of bamboo strokes.[40]

Even inanimate objects or animals it has been thought through many ages
reasonable to punish. In Athens an axe or stone that killed anyone
by accident was cast beyond the border; and the English law was only
repealed in the present reign which made a cartwheel, a tree, or a beast,
that killed a man, forfeit to the State for the benefit of the poor. The
Jewish law condemned an ox that gored anyone to death to be stoned, just
as it condemned the human murderer. And in the middle ages pigs, horses,
or oxen were not only tried judicially like men, with counsel on either
side and witnesses, but they were hung on gallows like men, for the
better deterrence of their kind in future.[41]

These customs had doubtless their defenders, and left the world not
without a struggle. It must have cost some one, whosoever first
questioned the wisdom of hanging animals or murdering a criminal’s
relations, as much ridicule as it cost Beccaria to question the efficacy
of torture or the right of capital punishment. But the boldness of
thought in that unknown reformer was probably lost sight of in the
arrogance of his profanity, and he doubtless paid with his own neck for
his folly in defending the pig’s.

It may be said that all such absurdities are past; that the Jews, the
Athenians, the Chinese, the Europeans of the middle ages can scarcely
be cited as reasonable beings; that they had no rational theory of
punishment, and that their errors have been long since discarded. But at
least their example suggests that even in our own system there may be
inconsistencies and blemishes which custom and authority hide from our
eyes.

Penal laws are the expression of the moral sentiments of mankind, and
either are as variable as the other. In Holland it was once a capital
offence to kill a stork, and in England to cut down a man’s cherry-tree.
For a Roman lady to drink wine was as heinous a sin as adultery, for
either of which she incurred the extreme sentence of the law. In Athens
idleness was for a long time punishable; though to a Spartan an Athenian
fined for idleness seemed to be punished for keeping up his dignity.
In Mexico drunkenness was a graver crime than slander; for whilst the
slanderer lost his ears or lips, the drunken man or woman was clubbed or
stoned to death.

But if penal laws thus express the wide variability of human morality,
they also contribute to make actions moral or immoral according to the
penalties by which they enforce or prevent them. For not only does
whatever is immoral tend to become penal, but anything can be made
immoral by being first made penal; and hence indifferent actions often
remain immoral long after they have ceased to be actually punishable.
Thus the Jews made Sabbath-breaking equally immoral with homicide or
adultery, by affixing to each of them the same capital penalty; and the
former offence, though it no longer forms part of any criminal code,
has still as much moral force against it as many an offence directly
punishable by the law.

But perhaps the best illustrations of the tendency of actions to
retain the infamy, attached to them by a past condition of fanatical
punishments, are the cases of suicide and child-killing. Could a Greek of
the classical period, or a cultivated historian like Plutarch reappear on
earth, nothing would strike him more vividly than the modern conception
or recent treatment of these crimes. According to Plutarch, Lycurgus, the
great Spartan lawgiver, met his death by voluntary starvation, from the
persuasion that even the deaths of lawgivers should be of use to mankind,
and serve them with an example of virtue and greatness; and Seneca held
that it was the part of a wise man not to live as long as he could but
as long as he ought. With what astonishment, then, would not Plutarch or
Seneca read of recent European punishments for suicide—of Lady Hales
losing the estate she was jointly possessed of with her husband, the
Judge, because he drowned himself; of the stake and the cross-roads; of
the English law which still regards suicide as murder, and condemns one
of two men who in a mutual attempt at self-destruction survives the other
to the punishment of the ordinary murderer! Is it possible, he would ask,
that an action which was once regarded as among the noblest a man could
perform, has really come to be looked upon with any other feeling than
one of pity or a sad respect?

The case of infanticide suggests similar thoughts. When we remember that
both Plato and Aristotle commended as a valuable social custom that
which we treat as a crime; when we recall the fact that the life of a
Spartan infant depended on a committee of elders, who decided whether it
should live or perish, we shall better appreciate the distance we have
travelled, or, as some would say, the progress we have made, if we take
up some English daily paper and read of some high-minded English judge
sentencing, at least formally, some wretched woman to death, because, in
order to save her child from starvation or herself from shame, she has
released it from existence. Yet the feeling, of which such a sentence
is the expression, is often extolled as one of the highest triumphs of
civilisation; and the laws, as if there were no difference between adult
and infant life, glory in protecting the weakness of a child by their
merciless disregard for the weakness of its mother.

But at least, it will be thought, we have by this time arrived at some
principles about punishment which correspond with the eternal truths of
equity. Is not Equality, for instance, one of the primary essentials of
punishment? Does it not stand as a penal axiom with almost the sanction
of a moral law that all men should suffer equally for equal crimes? Yet,
if by equality be meant the same punishment, the same kind of labour,
the same term of servitude, the same pecuniary fine—and this is the only
thing it can mean—what more obvious than that the same punishment for
rich and poor, for young and old, for strong and weak, for men and women,
for educated and uneducated, will bring to the constitution of a penal
code the utmost inequality the imagination can conceive? Beccaria insists
that the law can do no more than assign the same extrinsic punishment to
the same crime; that is, the same punishment, regardless of all other
external considerations; and he calls for the infliction of the same
punishment on the nobleman as on the commoner. Let it be so; but the same
punishment is no longer an equal one; and hence from this very demand
for equality springs the demand for its very opposite, for what Bentham
calls the _equability_ of punishment; that is, consideration for the
different circumstances of individual criminals. So that the same nominal
punishment not being the same real one, equality of punishment appears to
be a chimera, and the law, which punishes, say, a distinguished officer
less severely than it punishes a costermonger for the same crime, errs
perhaps really less from actual equality than if it condemned both to
precisely the same punishment.

Again, Proportion between crime and punishment seems to be another
natural demand of equity. Yet it is evident that it is only approximately
possible, and will vary in every age and country according to the
prevalent notions of morality. Is imprisonment for a year, or
imprisonment for life, or for how long, a fair and proportionate
punishment for perjury? Who shall decide? Shall we submit it to the
opinion of the judges? But has not Romilly left on record the story of
the two men tried by two different judges for stealing some chickens, who
were sentenced respectively one to imprisonment for two months, and the
other to transportation? Shall we then give up all attempt at proportion
and apply the same deterrent as equally efficacious against slight or
grave offences? Draco, when asked why he made death the punishment
for most offences that were possible, is said to have replied, ‘Small
ones deserve it, and I can find no greater for the gravest.’ The same
reasoning was for a long time that of our own law; and in Japan, where
every wrong act was one of disobedience to the Emperor, and accordingly
of equal value, the same penalty of death for gambling, theft, or murder,
obviated all difficulties with regard to a proportion which is easier to
imagine than it is to define.

Analogy between crime and punishment is another idea which, except in
the case of death for death, has been relegated from the practice of
most criminal laws. Yet the principle has in its favour the authority of
Moses, the authority of the whole world and of all time, that punishment
should, if possible, resemble the crime it punishes in kind; so that
a man who blinds another should be blinded himself, he who disfigures
another be disfigured himself. Thus in the old-world mythology, Theseus
and Hercules inflict on the evil powers they conquer the same cruelties
their victims were famous for; Termenus having his skull broken because
with his own skull he broke the heads of others; and Busiris, who
sacrificed others, being himself sacrificed in his turn. Both Montesquieu
and Beccaria also advocate analogy in punishment, and so does Bentham
to some degree; there being, indeed, few greater contrasts between the
theories of the great English jurist and modern English practice than
that the former should not have deprecated some suffering by burning as a
penalty analogous to the crime of arson, and that he should have advised
the transfixing of a forger’s hand or of a calumniator’s tongue by an
iron instrument before the public gaze as good and efficient punishments
for forgery and slander.

These are some of the difficulties of the subject, which teach us the
necessity of constant open-mindedness with regard to all ideas or
practices connected with criminal law. But, would we further examine our
established notions, we should consider a statement from Hobbes which
goes to the very root of the theory of punishment.

‘In revenges or punishments,’ says Hobbes, ‘men ought not to look at the
greatness of the evil past, but the greatness of the good to follow,
whereby we are forbidden to inflict punishment with any other design than
for the correction of the offender and the admonition of others.’ And
over and over again the same thing has been said, till it has come to be
a commonplace in the philosophy of law, that the object of punishment is
to reform and deter. As was once said by a great legal authority, ‘We
do not hang you because you stole a horse, but that horses may not be
stolen.’[42] Punishment by this theory is a means to an end, not an end
in itself.

Yet, supposing it were proved to-morrow that punishment fails entirely of
the ends imputed to it; that, for example, the greater number of crimes
are committed by criminals who have been punished already; that for one
chance of a man’s reformation during his punishment there are a hundred
in favour of his deterioration; and that the deterrent influence of his
punishment is altogether removed by his own descriptions of it; shall we
suppose for a moment that society would cease to punish, on the ground
that punishment attained none of its professed ends? Would it say to the
horse-stealer, ‘Keep your horse, for nothing we can do to you can make
you any better, nor deter others from trying to get horses in the same
way?’

Or to take a stronger case. A deserter from the ranks escapes to his
home, breaks into it at night, robs an infirm father of all the savings
he has provided for his old age, and in a struggle for their possession
so injures him that he dies. Must the law disclaim all indignation, all
resentment, in the punishment it inflicts, and say to such a ruffian
that it only deals hard with him in order to warn others by his example,
and with the pious hope of making a good man of him in the future? If
resentment is ever just, is it wrong to give it public expression? If it
is natural and right in private life, why should it be a matter of shame
in public life? If there is such a thing as just anger for a single man,
does it become unjust when distributed among a million?

As a matter of fact the law affords a very clear proof, that its real
purpose is to administer retributive justice and that punishment has no
end beyond itself, by its careful apportionment of punishment to crime,
by its invariable adjustment between the evil a man has done and the evil
it deals out to him in return. For what purpose punish offences according
to a certain scale, for what purpose stay to measure their gravity, if
merely the prevention of crime is the object of punishment? Why punish
a slight theft with a few months’ imprisonment and a burglary with as
many years? The slight theft, as easier to commit, as more tempting
accordingly, should surely have a harder penalty affixed to it than a
crime which, as it is more difficult, is also less probable and less in
need of strong counter-inducements to restrain it. That the law never
reasons in this way is because it weighs offences according to their
different degrees of criminality, or, in other words, because it feels
that the fair _retaliation_ for the burglary is not a fair _retaliation_
for the theft.

If, moreover, the prevention of crime is the chief object of punishment,
why wait till the crime is committed? Why not punish before, as a
certain Turk in Barbary is said to have done, who, whenever he bought
a fresh Christian slave, had him forthwith suspended by his heels and
bastinadoed, that the severe sense of his punishment might prevent him
from committing in future the faults that should merit it?[43] Why
should we ever let a man out of prison who has once entered one? Is he
not then a hundred times more likely to violate the law than he was
before; and is he ever more dangerous to society than when he has once
suffered for the public example, and been released from the discipline
that was intended to reform him? It is still true, as Goldsmith said
long ago, that we send a man to prison for one crime and let him loose
again ready to commit a thousand. And so it is, that of the 74,000 souls
who make up our criminal classes, whilst about 34,000 of them fill our
prisons and reformatories, there is still an army of 40,000 at large in
our midst, whom we class as _known thieves_, _receivers of stolen goods_,
and _suspected persons_.[44]

A child’s simple philosophy of punishment therefore is after all the
correct one, when it tells you without hesitation that the reason a man
is punished for a bad action is simply ‘because he deserves it.’ The
notion of desert in punishment is based entirely on feelings of the
justice of resentment. So that the primary aim of legal punishment is
precisely the same as may be shown historically to have been its origin,
namely, the regulation by society of the wrongs of individuals. In all
early laws and societies distinct traces may be seen of the transition
of the _vendetta_, or right of private revenge, from the control of the
person or family injured by a crime to that of the community at large.
The latter at first decided only the question of guilt, whilst leaving
its punishment to the pleasure of the individuals directly concerned
by it. Even to this day in Turkey sentences of death for murder run as
follows: So-and-so is condemned to death _at the demand of the victim’s
heirs_; and such sentences are sometimes directed to be carried out in
their presence.[45] By degrees the community obtained control of the
punishment as well, and thus private might became public right, and the
resentment of individual injuries the Retributive Justice of the State.

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 at—the 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 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 murder—had she, that is, allowed no
public _vendetta_ of any kind—undoubtedly the _vendetta_ would have
become private again.

By the same rule, in the case of theft, the value of the thing stolen,
with some equivalent for the trouble of its recovery, taken from the
offender or made a lien on his earnings, appears to be all that justice
can demand. Sir Samuel Romilly, himself second to none as a lawyer,
wrote seventy years ago: ‘If the restitution of the property stolen,
and only a few weeks’ or even but a few days’ imprisonment were the
unavoidable consequence of theft, no theft would ever be committed.’
Yet the following sentences are taken at random from authentic English
sources: three months’ imprisonment for stealing a pipe, six months for
stealing a penny, a twelvemonth for stealing an umbrella, five years’
penal servitude for stealing some stamps from a letter, seven years for
stealing twopence. In such cases the principle of vindictiveness exceeds
the limits of necessity, and therefore of justice; whilst the law loses
all its dignity as the expression of unimpassioned resentment.

Is it possible, then, so beforehand to apportion punishments to crimes
that when a crime is committed it shall be but necessary to refer to a
code and at once detect its appropriate punishment? Or must the law be
general in its language, and leave a wide margin to the discretion of the
judge? Beccaria would have the judicial function confined solely to the
ascertainment of the fact of a crime, its punishment preordained by the
law. On the other hand it is said, that it is impossible to anticipate
every case that may arise; that no two cases are ever alike; that it
is better to leave the nice adjustment of penalties to the wisdom and
impartiality of a judge, and only limit his discretion by rules of a most
expansive description.

The Chinese penal code of 1647 is probably the nearest approach to
Beccaria’s conception, and nothing is more marvellous than the precision
with which it apportions punishments to every shade of crime, leaving
no conceivable offence, of commission or omission, without its exact
number of bamboo strokes, its exact pecuniary penalty, or its exact term
or distance of banishment. It is impossible in this code to conceive any
discretion or room for doubt left to the judicial officers beyond the
discovery of the fact of an alleged crime. But what is practicable in
one country is practicable in another; so that the charge so often urged
against thus eliminating judicial discretion, that it is fair in theory
but impossible in practice, finds itself at direct issue with the facts
of actual life.[47]

But although the laws of every country thus recognise in different
degrees the retributive nature of punishment, by their constant attention
to its apportionment to crime, there is another corollary of the
desirability of a just proportion between the two, which has never been,
nor is ever likely to be, accepted: namely, that from the point of view
of the public interest, which in theory is the only legal view, it is no
mitigation of a crime that it is a first offence, nor any aggravation of
one that it is the second.

For since the observance of some regular proportion between crime and
punishment, whatever that proportion may be, constitutes the first
principle of an equitable code; and since the most important thing in
public morality is a fixed penal estimate for every class of crime; it
is above all things desirable that the law should always adhere to such
proportion and estimate, by concerning itself solely with the crime
and not with the criminal. The injury to the public is precisely the
same whether a criminal has broken the law for the first time or for
the thousandth and first; and to punish a man more severely for his
second offence than for his first, because he has been punished before,
is to cast aside all regard for that due proportion between crime and
punishment which is after all the chief ingredient of retributive
justice, and to inflict a penalty often altogether incommensurate with
the injury inflicted on the public.

For instance, the injury to the public is no greater the hundredth time
a man steals a rabbit than it is the first. The public may be interested
in the prevention of poaching, but it is not interested in the person
of the poacher, nor in the number of times he may have broken the law.
The law claims to be impersonal—to treat offences as they affect the
State, not as they affect individuals; to act mechanically, coldly, and
dispassionately. It has, therefore, simply to deal with the amount of
injury done by each specific offence, and to affix to it its specific
penalty, regardless of all matters of moral antecedents. The repetition
of an offence may make its immorality the greater, but its criminality
remains the same, and this only is within the province of the law.

It is the specific crime, not the fact that it is a second or third
felony, which is injurious. Neither a community nor an individual suffer
more from the commission of a crime by a man who commits it for the
second time than from its commission by a man who has never committed it
before. If two brothers are each robbed of a pound apiece on two several
occasions, the one who is robbed each time by the same criminal suffers
no more than the one who is robbed each time by different criminals.
Still less is the public more injured in one case than in the other.
Therefore the former brother is entitled for his second loss to no more
restitution than the other, nor has any more claim on society for the
infliction of a severer punishment on his behalf than that inflicted for
the second loss of his brother.

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.

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 children’s wants he again yielded to
temptation and stole twelve duck’s 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?

Almost any number of the ‘Times’ will illustrate the same thing. Take
the account of the Middlesex Sessions of February 24, 1880. There we
find the case of a man and woman sentenced to seven and five years’
penal servitude respectively. What enormities had they committed? The
man had stolen three-halfpence from somebody; and the woman, who was a
laundress, had stolen two skirts, of the value of six shillings, from a
vendor of sheep’s trotters. The man had incurred previously seven years’
penal servitude for a robbery with violence, and the woman had three
times in her life been sentenced to imprisonment. But is it just that,
because a man has been severely punished once, no rule nor measure shall
be observed with him if he incur punishment again? And might not a vendor
of sheep’s trotters have been satisfied, without a laundress becoming a
burden to the State?

It will be said, of course, that the practice of giving increased
sentences where there have been previous convictions prevails all over
the world and in all states of civilisation. But in that very fact lies
the strength of the argument against it. By the Roman law a third case
of theft, however slight, exposed a man to death.[48] By the laws of St.
Louis the man who stole a thing of trifling value lost an ear the first
time, a foot the second, and was hung the third. By the criminal code
of Sardinia in the fifteenth century, asses were condemned to lose one
ear the first time they trespassed on a field not their master’s, and
their second ear for a second offence. But enough of such instances. The
practice is undoubtedly universal; but so at one time were ordeals and
tortures. May not, then, the practice be, like them, part and parcel of
a crude state of law, such as was unavoidable in its emergence to better
things, but such as it is worth some effort to escape from?

There are, however, certain limitations even to the supposed universality
of the custom. For the Roman jurists did not consider a re-conviction as
a circumstance in itself which justified aggravation of punishment; and
all that can be gathered from some fragments in the Pandects and Code is,
that some particular cases of repeated crimes were punished more severely
than a first offence. But they were crimes _of the same kind_; and a man
whose first crime was a theft and whose second was an assault would
not have incurred an aggravated penalty. It is the same to-day in the
Austrian, Tuscan, and a few other codes: a second crime is only punished
more severely as a second crime when it is of the same kind as the first,
so that it would not suffice to prove simply a previous conviction
for felony irrespective of the particular sort. There is also another
limitation that has sometimes been recognised, for in the Roman law the
rule of an increased penalty fell to the ground, if three years elapsed
without offence between the punishment for one crime and the commission
of a second.[49]

If it be said that a second conviction makes it necessary for society
to protect itself by stronger measures against a member who thus defies
its power, it may be asked whether this is not an application of exactly
the same reasoning to the crimes of individuals, which as applied to
the crimes of all men generally led our ancestors so far astray in the
distribution of their punishments. Nothing could have been more plausible
than their reasoning: ‘The punishment in vogue does not diminish the
crime, therefore increase the punishment.’ But nothing could have been
less satisfactory than the result, for with the increase of punishment
that of crime went hand in hand. The same reasoning is equally plausible
in the case of individuals, with the same perplexing question resulting
in the end: ‘How comes it that, in spite of the threatened greater
punishment, the majority of criminals are yet old offenders?’

It is unhappily no mere theory, that the majority of crimes are
committed precisely by those who risk most in committing them; by
those, that is, who commit them with the aggravated penalty full in
view. By the existing law (of which both the Criminal Code- and the
Penal Servitude-Commissioners have proposed the mitigation) anyone
convicted of felony after a previous conviction for felony is liable to
penal servitude for life, or to imprisonment with hard labour for four
years, with one or more whippings. The minimum punishment for a second
conviction of felony is seven years. Yet, with the knowledge of such
increased punishments before their eyes, with the full consciousness of
their liabilities as old offenders, official statistics show that of both
the male and female convicts in the English convict prisons _considerably
more than half have incurred previous convictions_.[50] Of the male
convicts in 1878, 79 per cent., and of the female 89 per cent., were
cases of reciduous crime. May it not, then, be argued from such a failure
of the system to an error in the principle on which it rests? For is it
not evident that the aggravated penalty does as little to deter as the
original punishment does to reform?

But undoubtedly punishment, although in its origin and present intention
vindictive, must exercise a certain preventive force against crime,
and this preventive force can scarcely be estimated, for that which is
prevented is, of course, not seen. But the efficiency of punishment as a
deterrent is proportioned to its certainty, and there is a large element
of uncertainty that can never be eliminated. For every malefactor there
are two hopes: first, that he may escape detection or apprehension;
secondly, that he may escape conviction. That his hopes of impunity are
not without reason greater than his fears of punishment the following
facts attest.

In a period of ten years, from 1867 to 1876, the total number of
principal indictable offences committed in the metropolis against
property—and these constitute the great majority of crimes—were
117,345. But the apprehensions for these offences were only 26,426,
the convictions only 19,242. In other words, the chances against
apprehension for such crimes as burglary or larceny are four to one in
favour of the criminal, whilst the chances against his conviction and
punishment are fully as high as six to one. When we thus find that only
16 per cent. of such crimes receive any punishment, the remaining 84
per cent. escaping it altogether, and that only 22 per cent. are even
followed by apprehension, we shall the more admire the general efficacy
of our criminal machinery, in which prevention by punishment plays so
small a part.[51]

But punishment bears much the same relation to crime in the country at
large that it does in the metropolis. Let one year be taken as a fair
sample of all. The total number of indictable offences of all kinds
_reported to the police_ in 1877-8 was 54,065. For these offences only
24,062 persons were apprehended. Of these latter only 16,820 were held to
bail or committed for trial; and of these again 12,473 were convicted and
punished.[52] So that, though the proportion of convictions to the number
of prisoners who come to trial is about 75 per cent., the proportion of
convictions, that is, of punishments, to the number of crimes committed
is so low as 23 per cent. Of the 54,065 crimes reported to the police
in one year 41,592 were actually committed with impunity; and thus the
proportion which successful crime of all sorts bears to unsuccessful is
rather more than as four to one.[53] So that there is evident truth in
what a good authority has said: ‘Few offences comparatively are followed
by detection and punishment, and with a moderate degree of cunning an
offender may generally go on for a long time with but feeble checks, if
not complete impunity.’[54]

Against this general uncertainty of punishment, which no severity in the
law can affect or make up for, the only certainty of punishment dependent
on the law is in the event of conviction. But even this certainty is of
a very qualified nature, for it depends on sentiments of due proportion
between a crime and its penalty, which in no two men are the same. Every
increase of severity in punishment diminishes its certainty, since it
holds out to a criminal fresh hopes of impunity from the clemency of his
judges, prosecutors, or jury.

But there is a still further uncertainty of punishment, for it is as well
known in the criminal world as elsewhere that the sentence pronounced in
court is not the real sentence, and that neither penal servitude for
five years nor penal servitude for life mean necessarily anything of
the sort. The humanity of modern legislation insists on a remission of
punishment, dependent on a convict’s life in the public works prisons,
in order that the element of hope may brighten his lot and perchance
reform his character. This remission was at first dependent simply on
his conduct, which was perhaps too generously called good where it was
hard for it to be bad; now it depends on his industry and amount of
work done. Yet the element of hope might be otherwise assured than by
lessening the certainty of punishment, say, by associating industry
or good conduct with such little privileges of diet, letter-writing,
or receiving of visits, as still shed some rays of pleasure over the
monotony of felon-life. It should not be forgotten, that the Commission
of 1863, which so strongly advocated the remissibility of parts of penal
sentences, did so in despite of one of its principal members, against
no less an authority than the Lord Chief Justice, then Sir Alexander
Cockburn.[55] The very fact of the remissibility of a sentence is an
admission of its excessive severity; for to say that a sentence is never
carried out is to say that it need never have been inflicted.

The question, therefore, arises, Does crime depend to any appreciable
extent on imprisonment at all, or on the length or shortness of
sentences?

The right to ask such a question derives itself from recent experience.
In 1853 the country decided to shorten terms of penal servitude as
compared with those of the then expiring system of transportation, for
which they were to be substituted. Four years later it was resolved
to equalise terms of penal servitude with those formerly given of
transportation, though transportation for seven years was still to have
its equivalent in three of penal servitude. Then came the garrotting
year, 1862, in consequence of which the minimum term of penal servitude
was raised to five years, whilst no sentence of penal servitude, after
a previous conviction of felony, was to be for less than seven years.
Now again the tide has turned in favour of shorter sentences, and it is
officially proposed to relinquish the latter minimum of servitude as too
severe, and as leading in practice to sentences of simple imprisonment,
which on the other hand are declared to be too slight.

In such a zigzag path has our penal legislation been feeling, and is
still feeling, its way, with evident misgiving of that principle of
repression, as false as it is old, that an increase of crime can only be
met by an increase of punishment.

There seem to be three principal reasons why, under our present system,
crime still keeps its general level, irrespective of all changes in our
degrees of punishment.

In the first place, our public works prisons, however excellent for
their material results, are so many schools of crime, where for the one
honest trade a man learns by compulsion he acquires a knowledge of three
or four that are dishonest. ‘I have become acquainted,’ says a released
convict, ‘with more of what is bad and evil, together with the schemes
and dodges of professional thieves and swindlers, during the four years
I served the Queen for nothing, than I should have done in fifty years
outside the prison walls.’ ‘The association rooms at Dartmoor are as bad
as it is possible for anything to be … they are really class-rooms in the
college of vice, where all are alike students and professors. The present
system in most instances merely completes the man’s vicious and criminal
education, instead of in the slightest degree reforming him.’[56] It has
been attempted in various ways to obviate this difficulty, by diminishing
opportunities of companionship; but the real demoralisation of prison
life is probably due less to the actual contact of bad men with one
another than to the deadened sense of criminality which they derive
from the feeling of numbers, just as from the same cause the danger of
drowning is forgotten on the ice. Prisoners in gangs lose all shame of
crime, just as men in armies forget their native horror of murder.

In the second place, a large proportion of the habitual criminal class
is formed of weak-minded or imbecile persons, notorious for the repeated
commission of petty thefts, crimes of violence and passion, and confessed
to be ‘not amenable to the ordinary influences of self-interest or
fear of punishment.’[57] It is now proposed to separate this class of
prisoners from others; but is punishment operative on them at all? Is not
their proper place an asylum?

In the third place, there is the discharge from prison; and truly, if the
prevention of crime be a main object of society, it is just when a man
is released from prison that, from a social point of view, there would
seem most reason to send him there. For even if, whilst in prison, he has
learned no dishonest means of livelihood, how shall he, when out of it,
set about obtaining an honest one? If temptation was too strong for him
when all doors were open to him, is it likely to be less strong when most
are closed? Will it not be something like a miracle, if, with two pounds
paid to him on his discharge and his railway fare paid home, he eat for
any considerable time the bread of honesty, and sleep the sleep of the
just?

That these causes do to a great extent defeat the preventive effect of
our penal laws, is proved by the tale of our criminal statistics, which
reveal the fact that most of our crime is committed by those who have
once been punished, and that of general crime about 77 per cent. is
committed with impunity. But if so large a proportion of crimes pass
unpunished altogether, it is evident that society depends much less for
its general security upon its punishments than is commonly supposed.
Might it not, therefore, still further relax such punishments, which
are really a severe tax on the great majority of honest people for the
repression of the very small proportion who constitute the dishonest part
of the community?[58]

For if punishment is weak to prevent crime, it is strong to produce it,
and it is scarcely open to doubt that its productive force is far greater
than its preventive. Our terms of imprisonment compel more persons to
enter a career of crime than they prevent from pursuing one, that being
often the only resource left for those who depend on a criminal’s labour.
Whether in prison or the workhouse, such dependents become a charge
to society; nor does it seem reasonable, that if one man under sore
temptation steals a loaf, a hundred other men who do no such thing must
contribute to keep, not only the prisoner himself, but his family too, in
their daily bread for so long a time as it pleases the law to detain him
from earning his and their necessary subsistence.

Since, therefore, there is more to fear from a punished than from an
unpunished criminal, there is the less reason to regret the general
impunity of crime. There is indeed a large class of crimes for the
prevention of which more would be done, by leaving them to their natural
consequences, and to the strong power against them which the general
interests and moral feelings of mankind will always enforce, than by
actual punishment. It is particularly crimes of dishonesty which are
best punished by the mere fact of their discovery. By the Norwegian law
if an offender holds any official place he is punished, not by fine
or imprisonment, but by the loss of his office and all the privileges
connected with it.[59] And if we imagine a country without any legal
penalty at all for theft or dishonesty, thieves and their tribe would
soon find their proper punishment, by that process of social shifting,
which would drive them to the most deleterious or dangerous occupations
of life even more effectually than it so drives them at present. The less
dependence is placed on the penal sanctions of crime, the stronger do the
moral restraints from it become.

It is against crimes affecting the person that punishments are most
desirable and their vindictive character most justly displayed. Personal
violence calls for personal detention or personal chastisement; and the
principle of analogy in punishment is most appropriate in the case of a
man who maltreats his wife or abuses his strength against any weakness
greater than his own. Punishment in such cases is a demand of natural
justice, whether anyone is affected by the example or not, and whether
or not the man himself is improved by it. Not only is it the best means
of enforcing that personal security which is one of the main functions
of the State, but it is an expression of that sense of moral reprobation
which is so necessary to the good order of society.

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.

That the punishments of long custody by which we now defend our lives
and properties are out of all proportion to the real needs of social
existence is indicated by such a fact as that no increase of crime used
to attend the periodical release of prisoners which was for long, if
it is not still, customary in Russia at the beginning of each reign.
Neither in India, when on the Queen’s assumption of the title of Empress,
a pardon was granted to about one-tenth of the prison population, did
any increase of crime ensue, as, according to all criminal reasoning,
it should have done, if the safety of society depends on the custody
of the criminal class.[60] In Sweden a low rate of crime seems to be a
direct consequence of a low scale of punishment. Of those condemned to
_travaux forcés_, which may vary from a period of two months to a period
for life, 64 per cent. are condemned for one year, and only 3 per cent.
are condemned for seven years;[61] whilst sentences to the latter period
in England form between 50 and 60 per cent. of the sentences to penal
servitude.

But if the custody of the criminal class has been overrated as a
preventive of crime, or regarded as the sole preventive instead of one
amongst many, it does not follow that crime on that account must be left
to itself. It only follows that we should trust to punishment less and to
other agencies more in our war with crime, and that we should seek to
check the latter at its source, not in its full stream, by attending to
the improvement of the general conditions of life. It is quite certain,
for instance, that the spread of education, of which Beccaria wrote in
terms of such despair, means the diminution of crime; and as the majority
of crimes are committed between the ages of twenty and forty, it may be
predicted that from the present year onwards the great Act of 1870 will
bear increasing fruit in lowering our criminal statistics. More too may
be hoped for from the electric light than from any multiplication of
prisons.

There are a few obvious remedies by which the inducements to crime might
be easily diminished. In 1808 Sir Samuel Romilly brought in a bill, to
provide persons tried and acquitted of felony with compensation, at the
discretion of the judge, for the loss they incurred by their detention
and trial. This was objected to, on the ground that the payment of such
compensation out of the county rates would discourage prosecutions; and
the only justice done to men falsely accused from that day to this is the
authorisation given to goal-governors in 1878 to provide prisoners, who
have been brought from another county for trial at the assizes and have
been acquitted, with means of returning to their own homes. Something
more than this is required to save a man so situated from falling into
real crime.

One thing that might be done, which would also serve at the same time to
keep a prisoner’s 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 felon’s property, enabled the Crown to appoint an
administrator of it, for the benefit of the persons injured by the crime
and the felon’s 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 felon’s 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 man’s wages or income for
many minor offences now punished, but not prevented, by imprisonment.

By the present English law a person convicted of more offences than one
may be sentenced for each offence separately, the punishment of each one
in succession taking effect on the expiration of the other. By this law
(which the Criminal Code Commissioners propose to alter) imprisonment
may be spread over the whole of a lifetime. On this point the Chinese
law again offers a model, for it enacts that when two or more offences
are proved against a man, they shall all be estimated together, and
the punishment of all the lesser offences be included in that of the
principal charge, not in addition to it So also if the offences are
charged at different times, and the punishment of one has been already
discharged, there is no further punishment for the other subsequent
charges, unless they be charges of greater criminality, in which case
only the difference between the punishments can be legally incurred.[63]
But this of course presupposes a definite scale of crimes and punishments.

Such are some of the problems connected with penology, which best
illustrate the imperfection of its hitherto attained results. Only one
thing as yet seems to stand out from the mist, which is, that closely
associated as crime and punishment are both in thought and speech, they
are but little associated in reality. The amount of crime in a country
appears to be a given quantity, dependent on quite other causes than
the penal laws directed to its repression. The efficiency of the latter
seems proportioned to their mildness, not to their severity; such
severity being always spoiled by an inevitable moderation in practice.
The conclusion, therefore, would seem to be, that a short simple code,
with every punishment attached to every offence, with every motive for
aggravation of punishment stated, and on so moderate a scale that no
discretion for its mitigation should be necessary, would be the means
best calculated to give to penal laws their utmost value as preventives
of crime, though experience proves that as such preventives their place
is a purely secondary one in a really good system of legislation.



FOOTNOTES

[1] By a Cabinet Order of June 3, 1740. See Carlyle’s _Frederick the
Great_, iii. 7.

[2] Pike, _History of Crime in England_, ii. 283, 346.

[3] Beccaria was born in 1738, and his book appeared in 1764. Therefore
he was only 26. The 28 must refer to the time he wrote the letter.

[4] _Lettre 80._

[5] _I Piaceri della Immaginazione_, in his collected works by Villari,
p. 546.

[6] Villari, _Opere di Beccaria_, 547.

[7] It is published in the Haarlem edition of the _Dei Delitti_, 1766.

[8] The letter is in Diderot’s _Œuvres_, ix. 451-66.

[9] See the two volumes of their _Lettere_ published at Milan by Dr. C.
Casati, 1880.

[10] _Lettere_, ii. 221: ‘Il suo libro d’oro sicuro è chiuso.’

[11] _Lettere_, ii. 150.

[12] Pietro had sent some of his manuscripts to Morellet, perhaps in
the hope that the latter would offer to translate them. Anyhow Beccaria
brought back no compliments to Pietro from Paris, and the key to Pietro’s
feelings lies in the words he wrote to his brother the day after
Beccaria’s return: ‘Non mi ha detto una sillaba che mostri che alcuno
sappia in Parigi, che io sono al mondo.’

[13] _Lettere_, i. 391; ii. 70, 127, 151, 211, 295. It is satisfactory
for this point to be settled, for even so lately as 1862, Sig. Cantù, in
his work on Beccaria, attributes the _Risposta_ to him, saying that all
the intrinsic proofs are in favour of its being his work. P. 58.

[14] _Ibid._ ii. 159.

[15] _Lettere_, ii. 225.

[16] Morellet, _Mémoires_, i. 167: ‘Revenu à Milan il a fait peu de
chose, et sa fin n’a pas répondu à son début, phénomène commun parmi les
gens de lettres d’Italie, qui ont un premier feu bien vif, mais qui, à 25
et 30 ans, se désabusent comme Salomon et reconnaissent que la science
est vanité, sans avoir attendu d’être aussi savant que lui.’

[17] Cantù, Beccaria, 42.

[18] In a book called _Cautio Criminalis_, published in 1718.

[19] Jardine’s _Reading on Torture_.

[20] Tooke’s _Catharine II._, 441-8. Rambaud’s _Russie_, 476. ‘Dans
l’instruction pour la confection du nouveau Code, Catharine II., suivant
sa propre expression, avait _pillé_ les philosophes d’Occident, mais
surtout Montesquieu et Beccaria.’

[21] Morellet, _Mémoires_, i. 165.

[22] _General C. Lee’s Memoirs._

[23] This fact rests on the authority of a gentleman of Pisa, who told
it to Dr. Rush, the so-called ‘American Æsculapius,’ who wrote against
capital punishment towards the end of the last century.

[24] By Gustavus III. It had, however, been discontinued long before, as
Beccaria speaks of it as non-existent when he wrote.

[25] Turnbull’s _Visit to Philadelphia Prison_, 1797.

[26] _Times_, March 1, 1880.

[27] For most of the above facts the writer is indebted to the papers
published by the Howard Association, kindly sent to him by the Secretary,
Mr. Tallack.

[28] Diodorus Siculus, i. 65: ἀντὶ γὰρ τοῦ θανάτου τοὺς καταδικασθέντας
ἠνάγκαζε λειτουργεῖν ταῖς πόλεσι δεδεμένους.

[29] Gibbon, c. 48: ‘During his government of twenty-five years the
penalty of death was abolished in the Roman Empire.’ A.D. 1118-1143.

[30] Beccaria doubtless got the expression from Helvetius, who used it in
his _L’Esprit_, i. 228, 291.

[31] _Vicar of Wakefield_, c. 27; and _Citizen of the World_, letter 79.
Johnson was more outspoken in the _Rambler_, No. 114 (1751), in which he
advocated the restriction of capital punishment to cases of murder.

[32] Lord Kames’ _Historical Law Tracts_. _Criminal Law._ 1776.

[33] _Enquiry into the Late Increase of Robbers_ (1751).

[34] Meredith’s speech of May 13, 1777, in _Parl. Deb._, xix. 239.

[35] Lecky’s _England_, i. 506.

[36] Speech, May 11, 1810.

[37] Romilly’s _Memoirs_, ii. 322.

[38] Hansard, and Campbell’s _Chief Justices_, iii. 233. The arguments
are almost Paley’s word for word.

[39] Stephen’s _English Criminal Law_, 156, 178.

[40] Sir G. Staunton’s _Penal Code of China_, 347, 416.

[41] See several instances in Baring Gould’s _Curiosities of Olden
Times_, in the chapter on Queer Culprits.

[42] So Seneca, _De Ira._, i. 16: ‘Nemo prudens punit quia peccatum
est, sed ne peccetur. Revocari enim præterita non possunt, futura
prohibentur.’ Compare _ibid._, ii. 31, and Plato, _Laws_, xi. 934 A.

[43] The same is the philosophy of the nursery-rhyme book:—

      ‘That’s Jack. Lay a stick on his back.
      What’s he done? I cannot say.
    We’ll find out to-morrow, and beat him to-day.’

So said also a more serious authority, Periander, tyrant of Corinth,
sometimes counted among the Seven Wise Men of Greece: μὴ μόνον τοὺς
ἀμαρτάνοντας άλλὰ καὶ τοὺς μέλλοντας κόλαζε. ‘Punish not only those who
have done wrong, but those who are going to.’

[44] _Judicial Statistics_, 1878, xi.

[45] White’s _Three Years in Constantinople_, ii. 331.

[46] Pierson, _Aus Russland’s Vergangenheit_, 31, 32.

[47] See Sir G. Staunton’s _Penal Code of China_, lxxi. 278-9, 285, 345,
367, 381, 449, for tables apportioning punishment to different crimes
according to an exact mathematical scale. There is no reason to suppose
that this scale was never acted upon, even if it is not observed now,
about which there is no good evidence.

[48] Farinaccius: ‘Potest pro tribus furtis, quamvis minimis, pœna mortis
imponi.’ The philosophy of this was, that to do anything twice was the
same as doing it frequently: ‘Quod bis fit, frequenter fieri dicitur.’

[49] The French have two words, _récidive_ and _récidiver_, to signify a
relapse into crime, the word being applied as a metaphor from medicine,
where it means the recurrence of a disease. In English we might adopt the
word _reciduous_ to express renewed acts of crime after punishment.

[50] The figures for May 1878 are: Men, 8,983; of these only 2,064 had
had no previous conviction of any kind, 4,672 had had sentences short of
penal servitude, and 2,247 penal servitude sentences. Of the 1,226 women,
124 had never been convicted before, 635 had had sentences short of penal
servitude, 567 penal servitude sentences.—(_P.S. Report_, iii. 1170. See
also ii. 206, 296, 364.)

[51] _Penal Servitude Acts Commission_, 1879, vol. iii. 1195-6.

[52] _Judicial Statistics_, 1878, xvi. 45.

[53] The same seems to be also true of France. ‘Quoi de plus important
que ce fait, qu’en moyenne annuelle 30,000 crimes ou délits restent
impunis parce que les auteurs en sont inconnus, et 10,000 environ parce
que les charges portées contre les accusés ou prévenus ont été jugées
insuffisantes.’—LEGOYT, _La France et l’Étranger_, i. 406.

[54] Hill, _Crime_, 28.

[55] _Memorials of Millbank_, ii. 274-5.

[56] The author of _Five Years’ Penal Servitude_. With this testimony
agrees thoroughly that of the Chaplain of Parkhurst Prison (_P.S. Rep._
iii. 707-8), that of the Governor of Portland Prison (ii. 164-5), and
that of the Governor of Spike Island (iii. 814-5).

[57] _Penal Servitude Report_, i. 43.

[58] If we include offences proceeded against summarily with the
indictable offences reported, about 2 per cent. of the population may be
counted as dishonest.

[59] _Strafgesetzbuch_, c. vi. 33.

[60] Wheeler, _Imperial Assemblage at Delhi_, 1877, 124, 127.

[61] _Congrès pénitentiaire international._ Tableau xii.

[62] There is a precedent for such a law in the legislation of Leopold,
Grand Duke of Tuscany: ‘Les malheureux injustement emprisonnés et
reconnus innocents devaient être indemnisés au moyen d’un fonds formé par
les amendes, mésure équitable et profondément humaine.’—LOISELEUR, _Hist.
des Peines_, 336.

[63] Staunton’s _Penal Code of China_, 29.



DEI DELITTI E DELLE PENE.

BY THE

MARQUIS CESARE BECCARIA.

_TRANSLATED._

    ‘In rebus quibuscumque difficilioribus non expectandum ut quis
    simul et serat et metat, sed præparatione opus est, ut per
    gradus maturescant.’—BACON.



_TO THE READER._


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 commentators—these 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 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.

Whoever, therefore, shall wish to honour me with his criticisms, I
would have begin with a thorough comprehension of the purpose of my
work—a purpose which, so far from diminishing legitimate authority,
will serve to increase it, if opinion can effect more over men’s minds
than force, and if the mildness and humanity of the government shall
justify it in the eyes of all men. The ill-conceived criticisms that have
been published against this book are founded on confused notions, and
compel me to interrupt for a moment the arguments I was addressing to my
enlightened readers, in order to close once for all every door against
the misapprehensions of timid bigotry or against the calumnies of malice
and envy.

There are three sources of the moral and political principles which
govern mankind, namely, revelation, natural law, and social conventions.
With regard to their principal object there is no comparison between
the first and the other two, but they all resemble one another in
this, that they all three conduce to the happiness of this present
mortal life. To consider the different relations of social conventions
is not to exclude those of revelation and natural law; rather it is
the thousandfold changes which revelation and natural law, divine and
immutable though they be, have undergone in the depraved mind of man, by
his own fault, owing to false religions and arbitrary notions of virtue
and vice, that make it appear necessary to examine, apart from all other
considerations, the result of purely human conventions, expressed or
implied, for the public need and welfare: this being an idea in which
every sect and every moral system must necessarily agree; and it will
always be a laudable endeavour, which seeks to constrain the headstrong
and unbelieving to conform to the principles that induce men to live
together in society. There are, then, three distinct kinds of virtue and
vice—the religious, the natural, and the political. These three kinds
ought never to conflict, although all the consequences and duties that
flow from any one of them do not necessarily flow from the others. The
natural law does not require all that revelation requires, nor does the
purely social law require all that natural law requires; but it is most
important to distinguish the consequences of the conventional law—that
is, of the express or tacit agreements among men—from the consequences
of the natural law or of revelation, because therein lies the limit of
that power, which can rightly be exercised between man and man without
a special mandate from the Supreme Being. Consequently the idea of
political virtue may, without any slur upon it, be said to be variable;
that of natural virtue would be always clear and manifest, were it not
obscured by the stupidity or the passions of men; whilst the idea of
religious virtue remains ever one and the same, because revealed directly
from God and by Him preserved.

It would, therefore, be a mistake to ascribe to one, who only discusses
social conventions and their consequences, principles contrary either to
natural law or to revelation, for the reason that he does not discuss
them. It would be a mistake, when he speaks of a state of war as anterior
to a state of society, to understand it in the sense of Hobbes, as
meaning that no obligation nor duty is prior to the existence of society,
instead of understanding it as a fact due to the corruption of human
nature and the want of any expressed sanction. It would be a mistake
to impute it as a fault to a writer who is considering the results of
the social compact that he does not admit them as pre-existent to the
formation of the compact itself.

Divine justice and natural justice are in their essence immutable and
constant, because the relation between similar things is always the
same; but human or political justice, being nothing more than a relation
between a given action and a given state of society, may vary according
as such action becomes necessary or useful to society; nor is such
justice easily discernible, save by one who analyses the complex and very
changeable relations of civil combinations. When once these principles,
essentially distinct, become confused, there is no more hope of sound
reasoning about public matters. It appertains to the theologian to fix
the boundaries between the just and the unjust, in so far as regards the
intrinsic goodness or wickedness of an act; to fix the relations between
the politically just and unjust appertains to the publicist; nor can the
one object cause any detriment to the other, when it is obvious how the
virtue that is purely political ought to give place to that immutable
virtue which emanates from God.

Whoever, then, I repeat, will honour me with his criticisms, let him not
begin by supposing me to advocate principles destructive of virtue or
religion, seeing that I have shown that such are not my principles; and
instead of his proving me to be an infidel or a rebel, let him contrive
to find me a bad reasoner or a shortsighted politician; but let him not
tremble at every proposition on behalf of the interests of humanity; let
him convince me either of the inutility or of the possible political
mischief of my principles; let him prove to me the advantage of received
practices. I have given a public testimony of my religion and of my
submission to my sovereign in my reply to the Notes and Observations; to
reply to other writings of a similar nature would be superfluous; but
whoever will write with that grace which becomes honest men, and with
that knowledge which shall relieve me from the proof of first principles,
of what character soever, he shall find in me not so much a man who is
eager to reply as a peaceable lover of the truth.



CHAPTER I.

INTRODUCTION.


Men for the most part leave the regulation of their chief concerns to
the prudence of the moment, or to the discretion of those whose interest
it is to oppose the wisest laws; such laws, namely, as naturally help
to diffuse the benefits of life, and check that tendency they have to
accumulate in the hands of a few, which ranges on one side the extreme
of power and happiness, and on the other all that is weak and wretched.
It is only, therefore, after having passed through a thousand errors in
matters that most nearly touch their lives and liberties, only after
weariness of evils that have been suffered to reach a climax, that men
are induced to seek a remedy for the abuses which oppress them, and to
recognise the clearest truths, which, precisely on account of their
simplicity, escape the notice of ordinary minds, unaccustomed as they
are to analyse things, and apt to receive their impressions anyhow, from
tradition rather than from inquiry.

We shall see, if we open histories, that laws, which are or ought to
be covenants between free men, have generally been nothing but the
instrument of the passions of some few men, or the result of some
accidental and temporary necessity. They have never been dictated by an
unimpassioned student of human nature, able to concentrate the actions
of a multitude of men to a single point of view, and to consider them
from that point alone—_the greatest happiness divided among the greatest
number_. Happy are those few nations which have not waited for the slow
movement of human combinations and changes to cause an approach to better
things, after intolerable evils, but have hastened the intermediate steps
by good laws; and deserving is that philosopher of the gratitude of
mankind, who had the courage, from the obscurity of his despised study,
to scatter abroad among the people the first seeds, so long fruitless, of
useful truths.

The knowledge of the true relations between a sovereign and his subjects,
and of those between different nations; the revival of commerce by the
light of philosophical truths, diffused by printing; and the silent
international war of industry, the most humane and the most worthy of
rational men—these are the fruits which we owe to the enlightenment of
this century. But how few have examined and combated the cruelty of
punishments, and the irregularities of criminal procedures, a part of
legislation so elementary and yet so neglected in almost the whole of
Europe; and how few have sought, by a return to first principles, to
dissipate the mistakes accumulated by many centuries, or to mitigate,
with at least that force which belongs only to ascertained truths, the
excessive caprice of ill-directed power, which has presented up to this
time but one long example of lawful and cold-blooded atrocity! And yet
the groans of the weak, sacrificed to the cruelty of the ignorant or
to the indolence of the rich; the barbarous tortures, multiplied with
a severity as useless as it is prodigal, for crimes either not proved
or quite chimerical; the disgusting horrors of a prison, enhanced
by that which is the cruellest executioner of the miserable—namely,
uncertainty;—these ought to startle those rulers whose function it is to
guide the opinion of men’s minds.

The immortal President, Montesquieu, has treated cursorily of this
matter; and truth, which is indivisible, has forced me to follow the
luminous footsteps of this great man; but thinking men, for whom I write,
will be able to distinguish my steps from his. Happy shall I esteem
myself if, like him, I shall succeed in obtaining the secret gratitude
of the unknown and peaceable followers of reason, and if I shall inspire
them with that pleasing thrill of emotion with which sensitive minds
respond to the advocate of the interests of humanity.

To examine and distinguish all the different sorts of crimes and the
manner of punishing them would now be our natural task, were it not that
their nature, which varies with the different circumstances of times and
places, would compel us to enter upon too vast and wearisome a mass of
detail. But it will suffice to indicate the most general principles and
the most pernicious and common errors, in order to undeceive no less
those who, from a mistaken love of liberty, would introduce anarchy,
than those who would be glad to reduce their fellow-men to the uniform
regularity of a convent.

What will be the penalty suitable for such and such crimes?

Is death a penalty really _useful and necessary_ for the security and
good order of society?

Are torture and torments _just_, and do they attain the _end_ which the
law aims at?

What is the best way of preventing crimes?

Are the same penalties equally useful in all times?

What influence have they on customs?

These problems deserve to be solved with such geometrical precision
as shall suffice to prevail over the clouds of sophistication, over
seductive eloquence, or timid doubt. Had I no other merit than that of
having been the first to make clearer to Italy that which other nations
have dared to write and are beginning to practise, I should deem myself
fortunate; but if, in maintaining the rights of men and of invincible
truth, I should contribute to rescue from the spasms and agonies of death
any unfortunate victim of tyranny or ignorance, both so equally fatal,
the blessings and tears of a single innocent man in the transports of his
joy would console me for the contempt of mankind.



CHAPTER II.

THE ORIGIN OF PUNISHMENTS—THE RIGHT OF PUNISHMENT.


From political morality, unless founded on the immutable sentiments
of mankind, no lasting advantage can be hoped. Whatever law deviates
from these sentiments will encounter a resistance which will ultimately
prevail over it, just in the same way as a force, however slight, if
constantly applied, will prevail over a violent motion applied to any
physical body.

If we consult the human heart we shall therein discover the fundamental
principles of the real right of the sovereign to punish crimes.

No man has gratuitously parted with a portion of his own liberty with a
view to the public good; that is a chimera which only exists in romances.
Each one of us would wish, if it were possible, that the covenants which
bind others should not bind himself. There is no man but makes himself
the central object of all the combinations of the globe.

The multiplication of the human race, slight in the abstract, but far
in excess of the means afforded by nature, barren and deserted as it
originally was, for the satisfaction of men’s ever increasing wants,
caused the first savages to associate together. The first unions
necessarily led to others to oppose them, and so the state of war passed
from individuals to nations.

Laws are the conditions under which men, leading independent and isolated
lives, joined together in society, when tired of living in a perpetual
state of war, and of enjoying a liberty which the uncertainty of its
tenure rendered useless. Of this liberty they voluntarily sacrificed
a part, in order to enjoy the remainder in security and quiet. The
sum-total of all these portions of liberty, sacrificed for the good of
each individually, constitutes the sovereignty of a nation, and the
sovereign is the lawful trustee and administrator of these portions.
But, besides forming this trust-fund, or deposit, it was necessary to
protect it from the encroachments of individuals, whose aim it ever
is not only to recover from the fund their own deposit, but to avail
themselves of that contributed by others. ‘Sensible motives,’ were
therefore wanted to divert the despotic will of the individual from
re-plunging into their primitive chaos the laws of society. Such motives
were found in punishments, established against transgressors of the
laws; and I call them _sensible_ motives, because experience has shown
that the majority of men adopt no fixed rules of conduct, nor avoid that
universal principle of dissolution, observable alike in the moral as in
the physical world, save by reason of motives which directly strike the
senses and constantly present themselves to the mind, counterbalancing
the strong impressions of private passions, opposed as they are to the
general welfare; not eloquence, nor declamations, nor the most sublime
truths have ever sufficed to curb the passions for any length of time,
when excited by the lively force of present objects.

As it, then, was necessity which constrained men to yield a part of
their individual liberty, it is certain that each would only place in
the general deposit the least possible portion—only so much, that is,
as would suffice to induce others to defend it. The aggregate of these
least possible portions constitutes the right of punishment; all that
is beyond this is an abuse and not justice, a fact but not a right.[64]
Punishments which exceed what is necessary to preserve the deposit
of the public safety are in their nature unjust; and the more just
punishments are, the more sacred and inviolable is personal security, and
the greater the liberty that the sovereign preserves for his subjects.



CHAPTER III.

CONSEQUENCES.


The first consequence of these principles is, that the laws alone can
decree punishments for crimes, and this authority can only rest with
the legislator, who represents collective society as united by a social
contract. No magistrate (who is part of society) can justly inflict
punishments upon another member of the same society. But since a
punishment that exceeds the legally fixed limit is the lawful punishment
_plus_ another one, a magistrate can, under no pretext of zeal or the
public good, add to the penalty already decreed against a delinquent
citizen.

The second consequence is, that the sovereign, who represents society
itself, can only form general laws, obligatory on all; he cannot judge
whether any one in particular has broken the social compact, for in
that case the nation would be divided into two parties, one represented
by the sovereign, asserting the violation of such contract; the other by
the accused, denying the same. Hence the necessity of a third person to
judge of the fact; in other words, of a magistrate, whose decisions shall
simply consist of affirmations or denials of particular facts, and shall
also be subject to no appeal.

The third consequence is this: if it were proved that the severity of
punishments were simply useless (to say nothing of being directly opposed
to the public good and to the very object of preventing crimes), even
in that case it would be contrary not only to those beneficent virtues
that flow from an enlightened reason, which prefers to rule over happy
human beings than over a flock of slaves, the constant victims of timid
cruelty, but it would be also contrary to justice and to the nature of
the social contract itself.



CHAPTER IV.

INTERPRETATION OF THE LAWS.


There is also a fourth consequence of the above principles: that the
right to interpret penal laws cannot possibly rest with the criminal
judges, for the very reason that they are not legislators. The judges
have not received the laws from our ancestors as a family tradition, as
a legacy that only left to posterity the duty of obeying them, but they
receive them from living society, or from the sovereign that represents
it and is the lawful trustee of the actual result of men’s collective
wills; they receive them, not as obligations arising from an ancient
oath[65] (null, because it bound wills not then in existence, and
iniquitous, because it reduced men from a state of society to that of
a flock), but as the result of the tacit or expressed oath made to the
sovereign by the united wills of living subjects, as chains necessary for
curbing and regulating the disorders caused by private interests. This is
the natural and real source of the authority of the laws.

Who, then, will be the rightful interpreter of the laws? Will it be the
sovereign, the trustee of the actual wills of all, or the judge, whose
sole function it is to examine whether such and such a man has committed
an illegal act or not?

In every criminal case a judge ought to form a complete syllogistic
deduction, in which the statement of the general law constitutes the
_major premiss_; the conformity or non-conformity of a particular action
with the law, the _minor premiss_; and acquittal or punishment, the
conclusion. When a judge is obliged, or of his own accord wishes, to make
even no more than two syllogisms, the door is opened to uncertainty.

Nothing is more dangerous than that common axiom, ‘We must consult the
spirit of the laws.’ It is like breaking down a dam before the torrent
of opinions. This truth, which seems a paradox to ordinary minds,
more struck as they are by a little present inconvenience than by the
pernicious but remote consequences which flow from a false principle
enrooted among a people, seems to me to be demonstrated. Our knowledge
and all our ideas are reciprocally connected together; and the more
complicated they are, the more numerous are the approaches to them, and
the points of departure. Every man has his own point of view—a different
one at different times; so that ‘the spirit of the laws’ would mean
the result of good or bad logic on the part of a judge, of an easy or
difficult digestion; it would depend now on the violence of his passions,
now on the feebleness of the sufferer, on the relationship between the
judge and the plaintiff, or on all those minute forces which change the
appearances of everything in the fluctuating mind of man. Hence it is
that we see a citizen’s fate change several times in his passage from one
court to another; that we see the lives of wretches at the mercy of the
false reasonings or of the temporary caprice of a judge, who takes as his
rightful canon of interpretation the vague result of all that confused
series of notions which affect his mind. Hence it is that we see the same
crimes punished differently by the same court at different times, owing
to its having consulted, not the constant and fixed voice of the laws,
but their unstable and erring interpretations.

No inconvenience that may arise from a strict observance of the letter
of penal laws is to be compared with the inconveniences of subjecting
them to interpretation. The momentary inconvenience in the former case
involves, indeed, correcting the words of the law which are the cause of
the uncertainty, a task both easy and necessary; but the fatal licence of
arguing, the source of so many arbitrary and venal disputes, is thereby
prevented. When a fixed code of laws, which must be observed to the
letter, leaves to the judge no further trouble than to inquire into the
actions of citizens and to decide on their conformity to the written law;
when the standard of just and unjust, which should equally direct the
actions of the ignorant citizen as of the philosophical one, is not a
matter of controversy but of fact; then are people no longer subject to
the petty tyrannies of many men, which are all the more cruel by reason
of the smaller distance that separates the sufferer from the inflictor of
suffering, and which are more pernicious than the tyrannies of a single
man, inasmuch as the despotism of many is only curable by that of one,
and a despot’s cruelty is proportioned, not to the power he possesses,
but to the obstacles he encounters. Under a fixed code of laws citizens
acquire that consciousness of personal security, which is just, because
it is the object of social existence, and which is useful, because it
enables them to calculate exactly the evil consequences of a misdeed. It
is true they will also acquire a spirit of independence, but not such
a spirit as will seek to shake the laws and prove rebellious against
the chief magistrates, except against such of them as have dared to
apply the sacred name of virtue to a spiritless submission to their own
self-interested and capricious opinions. These principles will displease
those who have assumed the right to transfer to their subordinates the
strokes of tyranny they themselves have suffered from their superiors. I
personally should have everything to fear, if the spirit of tyranny and
the spirit of reading ever went together.



CHAPTER V.

OBSCURITY OF THE LAWS.


If the interpretation of laws is an evil, it is clear that their
obscurity, which necessarily involves interpretation, must be an evil
also, and an evil which will be at its worst where the laws are written
in any other than the vernacular language of a country. For in that case
the people, being unable to judge of themselves how it may fare with
their liberty or their limbs, are made dependent on a small class of men;
and a book, which should be sacred and open to all, becomes, by virtue of
its language, a private and, so to speak, a family manual.

The greater the number of those who understand and have in their hands
the sacred code of the laws, the fewer will be the crimes committed; for
it is beyond all doubt that ignorance and uncertainty of punishments lend
assistance to the eloquence of the passions. Yet what shall we think
of mankind, when we reflect, that such a condition of the laws is the
inveterate custom of a large part of cultivated and enlightened Europe?

One consequence of these last reflections is, that without writing no
society will ever assume a fixed form of government, wherein the power
shall belong to the social whole, and not to its parts, and wherein the
laws, only alterable by the general will, shall not suffer corruption
in their passage through the crowd of private interests. Experience
and reason have taught us, that the probability and certainty of human
traditions diminish in proportion to their distance from their source. So
that if there be no standing memorial of the social contract, how will
laws ever resist the inevitable force of time and passion?

From this we see how useful is the art of printing, which makes the
public, and not a few individuals, the guardians of the sacred laws, and
which has scattered that dark spirit of cabal and intrigue, destined to
disappear before knowledge and the sciences, which, however apparently
despised, are in reality feared by those that follow in their wake. This
is the reason that we see in Europe the diminution of those atrocious
crimes that afflicted our ancestors and rendered them by turns tyrants
or slaves. Whoever knows the history of two or three centuries ago and
of our own, can see that from the lap of luxury and effeminacy have
sprung the most pleasing of all human virtues, humanity, charity, and the
toleration of human errors; he will know what have been the results of
that which is so wrongly called ‘old-fashioned simplicity and honesty.’
Humanity groaning under implacable superstition; the avarice and ambition
of a few dyeing with human blood the golden chests and thrones of kings;
secret assassinations and public massacres; every noble a tyrant to the
people; the ministers of the Gospel truth polluting with blood hands that
every day came in contact with the God of mercy—these are not the works
of this enlightened age, which some, however, call corrupt.



CHAPTER VI.

IMPRISONMENT.


An error, not less common than it is contrary to the object of
society—that is, to the consciousness of personal security—is leaving a
magistrate to be the arbitrary executor of the laws, free at his pleasure
to imprison a citizen, to deprive a personal enemy of his liberty on
frivolous pretexts, or to leave a friend unpunished in spite of the
strongest proofs of his guilt. Imprisonment is a punishment which, unlike
every other, must of necessity precede the declaration of guilt; but
this distinctive character does not deprive it of the other essential
of punishment, namely, that the law alone shall determine the cases
under which it shall be merited. It is for the law, therefore, to point
out the amount of evidence of a crime which shall justify the detention
of the accused, and his subjection to examination and punishment. For
such detention there may be sufficient proofs in common report, in a
man’s flight, in a non-judicial confession, or in the confession of
an accomplice; in a man’s threats against or constant enmity with the
person injured; in all the facts of the crime, and similar indications.
But these proofs should be determined by the laws, not by the judges,
whose decisions, when they are not particular applications of a general
maxim in a public code, are always adverse to political liberty. The
more that punishments are mitigated, that misery and hunger are banished
from prisons, that pity and mercy are admitted within their iron doors,
and are set above the inexorable and hardened ministers of justice, the
slighter will be the evidences of guilt requisite for the legal detention
of the suspected.

A man accused of a crime, imprisoned and acquitted, ought to bear
no mark of disgrace. How many Romans, accused of the gravest crimes
and then found innocent, were reverenced by the people and honoured
with magisterial positions! For what reason, then, is the lot of a
man innocently accused so different in our own times? Because, in the
criminal system now in vogue, the idea of force and might is stronger in
men’s minds than the idea of justice; because accused and convicted are
thrown in confusion into the same dungeon; because imprisonment is rather
a man’s punishment than his mere custody; and because the two forces
which should be united are separated from one another, namely, the
internal force, which protects the laws, and the external force, which
defends the throne and the nation. Were they united, the former, through
the common sanction of the laws, would possess in addition a judicial
capacity, although independent of that possessed by the supreme judicial
power; and the glory that accompanies the pomp and ceremony of a military
body would remove the infamy, which, like all popular sentiments, is more
attached to the manner than the thing, as is proved by the fact that
military prisons are not regarded in public estimation as so disgraceful
as civil ones. There still remain among our people, in their customs and
in their laws (always a hundred years, in point of merit, in arrear of
the actual enlightenment of a nation), there still remain, I say, the
savage impressions and fierce ideas of our ancestors of the North.



CHAPTER VII.

PROOFS AND FORMS OF JUDGMENT.


There is a general theorem which is most useful for calculating the
certainty of a fact, as, for instance, the force of the proofs in the
case of a given crime:—

1. When the proofs of a fact are dependent one on another—that is to say,
when each single proof rests on the weight of some other—then the more
numerous the proofs are, the smaller is the probability of the fact in
question, because the chances of error in the preliminary proofs would
increase the probability of error in the succeeding ones.

2. When the proofs of a fact all depend equally on a single one, their
number neither increases nor diminishes the probability of the fact in
question, because their total value resolves itself into that of the
single one on which they depend.

3. When the proofs are independent of each other—that is to say, when
they do not derive their value one from the other—then the more numerous
the proofs adduced, the greater is the probability of the fact in
question, because the falsity of one proof affects in no way the force of
another.

I speak of probability in connection with crimes, which, to deserve
punishment, ought to be proved. But the paradox is only apparent, if one
reflects that, strictly speaking, moral certainty is only a probability,
but a probability which is called certainty, because every sensible
person necessarily assents to it, by a force of habit which arises
from the necessity of acting, and which is prior to all speculation.
The certainty requisite for certifying that a man is a criminal is,
therefore, the same that determines everyone in the most important
actions of his life. The proofs of a crime may be divided into ‘perfect’
and ‘imperfect,’ the former being of such a nature as exclude the
possibility of a man’s innocence, and the latter such as fall short of
this certainty. Of the first kind one proof alone is sufficient for
condemnation; of the second, or imperfect kind, as many are necessary as
suffice to make a single perfect proof; that is to say, when, though each
proof taken separately does not exclude the possibility of innocence,
yet their convergence on the same point makes such innocence impossible.
But let it be noted that imperfect proofs, from which an accused has it
in his power to justify himself and declines to do so, become perfect.
This moral certainty of proofs, however, is easier to feel than to define
with exactitude: for which reason I think that the best law is one which
attaches to the chief judge assessors, taken by lot, not by selection,
there being in this case more safety in the ignorance which judges by
sentiment than in the knowledge which judges by opinion. Where the laws
are clear and precise, the function of a judge consists solely in the
certification of fact. If for searching out the proofs of a crime ability
and cleverness are required, and if in the presentation of the result
clearness and precision are essential, all that is required to judge
of the result is simple and common good sense, a faculty which is less
fallacious than the learning of a judge, accustomed as he is to wish to
find men guilty and to reduce everything to an artificial system borrowed
from his studies. Happy the nation where the laws are not a science! It
is a most useful law that everyone shall be judged by his equals, because
where a citizen’s liberty and fortune are at stake those sentiments which
inequality inspires should have no voice; that feeling of superiority
with which the prosperous man regards the unfortunate one, and that
feeling of dislike with which an inferior regards his superior, have no
scope in a judgment by one’s equals. But when the crime in question is an
offence against a person of a different rank from the accused, then one
half of the judges should be the equals of the accused, the other half
equals of the plaintiff, that so, every private interest being balanced,
by which the appearances of things are involuntarily modified, only the
voice of the laws and of truth may be heard. It is also in accordance
with justice that an accused person should have power up to a certain
point of refusing judges whom he may suspect; and if he is allowed the
exercise of this power for some time without opposition, he will seem
to condemn himself. Verdicts should be public, and the proofs of guilt
public, in order that opinion—which is, perhaps, the only bond of society
there is—may place a check on outbursts of force and passion, and that
the people may say, ‘We are not slaves without defence’: a feeling
which both inspires them with courage and is as good as a tribute to a
sovereign who understands his real interest. I refrain from pointing
out other details and precautions which require similar regulations.
I should have said nothing at all, had it been necessary for me to say
everything.



CHAPTER VIII.

WITNESSES.


It is a great point in every good system of laws to determine exactly
the credibility of witnesses and the proofs of guilt Every reasonable
man—that is, every man with a certain connection between his ideas and
with feelings like those of other men—is capable of bearing witness. The
true measure of his credibility is only the interest he has in speaking
or in not speaking the truth; so that nothing can be more frivolous than
to reject the evidence of women on the pretext of their feebleness,
nothing more childish than to apply the results of real death to civil
death as regards the testimony of the condemned, nothing more unmeaning
than to insist on the mark of infamy in the infamous when they have no
interest in lying.

Among other abuses of grammar, which have no slight influence on human
affairs, that one is notable which makes the evidence of a condemned
criminal null and void. ‘He is _dead civilly_’ say gravely the
peripatetic lawyers, ‘and a _dead man_ is incapable of any action.’ In
support of this silly metaphor many victims have been sacrificed, and
it has very often been disputed with all seriousness whether the truth
should not yield to judicial formulas. Provided that the testimony of
a condemned criminal does not go to the extent of stopping the course
of justice, why should not a fitting period be allowed, even after
condemnation, both to the extreme wretchedness of the criminal and to the
interests of truth, so that, by his adducing fresh matter to alter the
complexion of the fact, he may justify himself or others in a new trial?
Forms and ceremonies are necessary in the administration of justice,
because they leave nothing to the free will of the administrator; because
they give the people an idea of a justice which is not tumultuary and
self-interested, but steadfast and regular; and because men, the slaves
of habit and imitation, are more influenced by their feelings than by
arguments. But such forms can never without fatal danger be so firmly
fixed by the laws as to be injurious to truth, which from being either
too simple or two complex needs some external pomp to conciliate the
ignorant populace.

The credibility, therefore, of a witness must diminish in proportion
to the hatred, friendship, or close connection between himself and the
accused. More than one witness is necessary, because, so long as one
affirms and another denies, nothing is proved, and the right which
everyone has of being held innocent prevails. The credibility of a
witness becomes appreciably less, the greater the atrocity of the
crime imputed,[66] or the improbability of the circumstances, as in
charges of magic and gratuitously cruel actions. It is more likely, as
regards the former accusation, that many men should lie than that such
an accusation should be true, because it is easier for many men to be
united in an ignorant mistake or in persecuting hatred than for one man
to exercise a power which God either has not conferred or has taken away
from every created being. The same reasoning holds good also of the
second accusation, for man is only cruel in proportion to his interest
to be so, to his hatred or to his fear. Properly speaking, there is no
superfluous feeling in human nature, every feeling being always in strict
accordance with the impressions made upon the senses. In the same way the
credibility of a witness may sometimes be lessened by the fact of his
being a member of some secret society, whose purposes and principles are
either not well understood or differ from those of general acceptance;
for such a man has not only his own passions but those of others besides.

Lastly, a witness’s evidence is almost null when spoken words are
construed into a crime. For the tone, the gesture, all that precedes or
follows the different ideas attached by men to the same words, so alter
and modify a man’s utterances, that it is almost impossible to repeat
them exactly as they were spoken. Moreover, actions of a violent and
unusual character, such as real crimes are, leave their traces in the
numberless circumstances and effects that flow from them; and of such
actions the greater the number of the circumstances adduced in proof, the
more numerous are the chances for the accused to clear himself. But words
only remain in the memory of their hearers, and memory is for the most
part unfaithful and often deceitful. It is on that account ever so much
more easy to fix a calumny upon a man’s words than upon his actions.



CHAPTER IX.

SECRET ACCUSATIONS.


Palpable but consecrated abuses, which in many nations are the necessary
results of a weak political constitution, are Secret Accusations. For
they render men false and reserved, and whoever may suspect that he sees
in his neighbour an informer will see in him an enemy. Men then come to
mask their real feelings, and by the habit of hiding them from others
they at last get to hide them from themselves. Unhappy they who have come
to that; who, without clear and fixed principles to guide them, wander
lost and confused in the vast sea of opinions, ever busied in saving
themselves from the horrors that oppress them, with the present moment
ever embittered by the uncertainty of the future, and without the lasting
pleasures of quiet and security, devouring in unseemly haste those few
pleasures, which occur at rare intervals in their melancholy lives and
scarcely console them for the fact of having lived! Is it of such men we
can hope to make intrepid soldiers, defenders of their country and crown?
Is it among such men we shall find incorrupt magistrates, able with their
free and patriotic eloquence to sustain and develop the true interests
of their sovereign, ready, with the tribute they bear, to carry to the
throne the love and blessings of all classes of men, and thence to bring
back to palaces and cottages alike peace and security, and that active
hope of ameliorating their lot which is so useful a leaven, nay, which is
the life of States?

Who can protect himself from calumny, when it is armed by the strongest
shield of tyranny, secrecy? What sort of government can that ever be
where in every subject a ruler suspects an enemy, and is obliged for the
sake of the general tranquillity to rob each individual of its possession?

What are the pretexts by which secret accusations and punishments are
justified? Are they the public welfare, the security and maintenance of
the form of government? But how strange a constitution is that, where
he who has force on his side, and opinion, which is even stronger than
force, is afraid of every citizen! Is then the indemnity of the accuser
the excuse? In that case the laws do not sufficiently defend him; and
shall there be subjects stronger than their sovereign? Or is it to save
the informer from infamy? What! secret calumny be fair and lawful, and an
open one deserving of punishment! Is it, then, the nature of the crime?
If indifferent actions, or even useful actions, are called crimes, then
of course accusations and trials can never be secret enough. But how
can there be crimes, that is, public injuries, unless the publicity of
this example, by a public trial, be at the same time the interest of
all men? I respect every government, and speak of none in particular.
Circumstances are sometimes such that to remove an evil may seem utter
ruin when it is inherent in a national system. But had I to dictate new
laws in any forgotten corner of the universe, my hand would tremble and
all posterity would rise before my eyes before I would authorise such a
custom as that of secret accusations.

It has already been remarked by Montesquieu that public accusations are
more suited to republics, where the public good ought to be the citizens’
first passion, than to monarchies, where such a sentiment is very feeble,
owing to the nature of the government itself, and where the appointment
of officers to accuse transgressors of the law in the name of the public
is a most excellent institution. But every government, be it republican
or monarchical, ought to inflict upon a false accuser the same punishment
which, had the accusation been true, would have fallen upon the accused.



CHAPTER X.

SUGGESTIVE INTERROGATIONS—DEPOSITIONS.


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, 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.

Finally, a man who, when examined, persists in an obstinate refusal to
answer, deserves a punishment 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.’



CHAPTER XI.

OATHS.


A contradiction between the laws and the natural feelings of mankind
arises from the oaths which are required of an accused, to the effect
that he will be a truthful man when it is his greatest interest to
be false; as if a man could really swear to contribute to his own
destruction, or as if religion would not be silent with most men when
their interest spoke on the other side. The experience of all ages has
shown that men have abused religion more than any other of the precious
gifts of heaven; and for what reason should criminals respect it, when
men esteemed as the wisest have often violated it? Too weak, because too
far removed from the senses, are for the mass of people the motives
which religion opposes to the tumult of fear and the love of life.
The affairs of heaven are conducted by laws absolutely different from
those which govern human affairs; so why compromise those by these?
Why place men in the terrible dilemma of either sinning against God or
concurring in their own ruin? The law, in fact, which enforces such an
oath commands a man either to be a bad Christian or to be a martyr. The
oath becomes gradually a mere formality, thus destroying the force of
religious feelings, which for the majority of men are the only pledge of
their honesty. How useless oaths are has been shown by experience, for
every judge will bear me out when I say that no oath has ever yet made
any criminal speak the truth; and the same thing is shown by reason,
which declares all laws to be useless, and consequently injurious, which
are opposed to the natural sentiments of man. Such laws incur the same
fate as dams placed directly in the main stream of a river: either they
are immediately thrown down and overwhelmed, or a whirlpool formed by
themselves corrodes and undermines them imperceptibly.



CHAPTER XII.

TORTURE.


A cruelty consecrated among most nations by custom is the torture of the
accused during his trial, on the pretext of compelling him to confess his
crime, of clearing up contradictions in his statements, of discovering
his accomplices, of purging him in some metaphysical and incomprehensible
way from infamy, or finally of finding out other crimes of which he may
possibly be guilty, but of which he is not accused.

A man cannot be called _guilty_ before sentence has been passed on him by
a judge, nor can society deprive him of its protection till it has been
decided that he has broken the condition on which it was granted. What,
then, is that right but one of mere might by which a judge is empowered
to inflict a punishment on a citizen whilst his guilt or innocence are
still undetermined? The following dilemma is no new one: either the crime
is certain or uncertain; if certain, no other punishment is suitable for
it than that affixed to it by law; and torture is useless, for the same
reason that the criminal’s confession is useless. If it is uncertain, it
is wrong to torture an innocent person, such as the law adjudges him to
be, whose crimes are not yet proved.

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.

But I say in addition: it is to seek to confound all the relations of
things to require a man to be at the same time accuser and accused, to
make pain the crucible of truth, as if the test of it lay in the muscles
and sinews of an unfortunate wretch. The law which ordains the use of
torture is a law which says to men: ‘Resist pain; and if Nature has
created in you an inextinguishable self-love, if she has given you an
inalienable right of self-defence, I create in you a totally contrary
affection, namely, an heroic self-hatred, and I command you to accuse
yourselves, and to speak the truth between the laceration of your muscles
and the dislocation of your bones.’

This infamous crucible of truth is a still-existing monument of that
primitive and savage legal system, which called trials by fire and
boiling water, or the accidental decisions of combat, _judgments of
God_, as if the rings of the eternal chain in the control of the First
Cause must at every moment be disarranged and put out for the petty
institutions of mankind. The only difference between torture and the
trial by fire and water is, that the result of the former seems to depend
on the will of the accused, and that of the other two on a fact which is
purely physical and extrinsic to the sufferer; but the difference is only
apparent, not real. The avowal of truth under tortures and agonies is as
little free as was in those times the prevention without fraud of the
usual effects of fire and boiling water. Every act of our will is ever
proportioned to the force of the sensible impression which causes it, and
the sensibility of every man is limited. Hence the impression produced by
pain may be so intense as to occupy a man’s entire sensibility and leave
him no other liberty than the choice of the shortest way of escape, for
the present moment, from his penalty. Under such circumstances the answer
of the accused is as inevitable as the impressions produced by fire
and water; and the innocent man who is sensitive will declare himself
guilty, when by so doing he hopes to bring his agonies to an end. All
the difference between guilt and innocence is lost by virtue of the very
means which they profess to employ for its discovery.

Torture is a certain method for the acquittal of robust villains and for
the condemnation of innocent but feeble men. See the fatal drawbacks of
this pretended test of truth—a test, indeed, that is worthy of cannibals;
a test which the Romans, barbarous as they too were in many respects,
reserved for slaves alone, the victims of their fierce and too highly
lauded virtue. Of two men, equally innocent or equally guilty, the
robust and courageous will be acquitted, the weak and the timid will be
condemned, by virtue of the following exact train of reasoning on the
part of the judge: ‘I as judge had to find you guilty of such and such
a crime; you, A B, have by your physical strength been able to resist
pain, and therefore I acquit you; you, C D, in your weakness have yielded
to it; therefore I condemn you. I feel that a confession extorted amid
torments can have no force, but I will torture you afresh unless you
corroborate what you have now confessed.’

The result, then, of torture is a matter of temperament, of calculation,
which varies with each man according to his strength and sensibility;
so that by this method a mathematician might solve better than a judge
this problem: ‘Given the muscular force and the nervous sensibility of an
innocent man, to find the degree of pain which will cause him to plead
guilty to a given crime.’

The object of examining an accused man is the ascertainment of truth.
But if this truth is difficult to discover from a man’s air, demeanour,
or countenance, even when he is quiet, much more difficult will it be
to discover from a man upon whose face all the signs, whereby most men,
sometimes in spite of themselves, express the truth, are distorted
by pain. Every violent action confuses and causes to disappear those
trifling differences between objects, by which one may sometimes
distinguish the true from the false.

A strange consequence that flows naturally from the use of torture is,
that an innocent man is thereby placed in a worse condition than a guilty
one, because if both are tortured the former has every alternative
against him. For either he confesses the crime and is condemned, or he
is declared innocent, having suffered an undeserved punishment. But the
guilty man has one chance in his favour, since, if he resist the torture
firmly, and is acquitted in consequence, he has exchanged a greater
penalty for a smaller one. Therefore the innocent man can only lose, the
guilty may gain, by torture.

This truth is, in fact, felt, though in a confused way, by the very
persons who place themselves farthest from it. For a confession made
under torture is of no avail unless it be confirmed by an oath made
after it; and yet, should the criminal not confirm his confession, he is
tortured afresh. Some doctors of law and some nations only allow this
infamous begging of the question to be employed three times; whilst other
nations and other doctors leave it to the discretion of the judge.

It were superfluous to enlighten the matter more thoroughly by mentioning
the numberless instances of innocent persons who have confessed
themselves guilty from the agonies of torture; no nation, no age, but
can mention its own; but men neither change their natures nor draw
conclusions. There is no man who has ever raised his ideas beyond the
common needs of life but runs occasionally towards Nature, who with
secret and confused voice calls him to herself; but custom, that tyrant
of human minds, draws him back and frightens him.

The second pretext for torture is its application to supposed criminals
who contradict themselves under examination, as if the fear of the
punishment, the uncertainty of the sentence, the legal pageantry, the
majesty of the judge, the state of ignorance that is common alike to
innocent and guilty, were not enough to plunge into self-contradiction
both the innocent man who is afraid, and the guilty man who seeks to
shield himself; as if contradictions, common enough when men are at their
ease, were not likely to be multiplied, when the mind is perturbed and
wholly absorbed in the thought of seeking safety from imminent peril.

Torture, again, is employed to discover if a criminal is guilty of other
crimes besides those with which he is charged. It is as if this argument
were employed: ‘Because you are guilty of one crime you may be guilty of
a hundred others. This doubt weighs upon me: I wish to ascertain about it
by my test of truth: the laws torture you because you are guilty, because
you may be guilty, because I mean you to be guilty.’

Torture, again, is inflicted upon an accused man in order to discover
his accomplices in crime. But if it is proved that it is not a fitting
method for the discovery of truth, how will it serve to disclose
accomplices, which is part of the truth to be discovered? As if a man
who accuses himself would not more readily accuse others. And is it just
to torment men for the crimes of others? Will not the accomplices be
disclosed from the examination of the witnesses and of the accused, from
the proofs and whole circumstances of the crime; in sum, from all those
very means which should serve to convict the accused himself of guilt?
Accomplices generally fly immediately after the capture of a companion;
the uncertainty of their lot of itself condemns them to exile, and
frees the country from the danger of fresh offences from them; whilst
the punishment of the criminal who is caught attains its precise object,
namely, the averting of other men by terror from a similar crime.

Another ridiculous reason for torture is the purgation from infamy; that
is to say, a man judged infamous by the laws must confirm his testimony
by the dislocation of his bones. This abuse ought not to be tolerated in
the eighteenth century. It is believed that pain, which is a physical
sensation, purges from infamy, which is merely a moral condition. Is
pain, then, a crucible, and infamy a mixed impure substance? But infamy
is a sentiment, subject neither to laws nor to reason, but to common
opinion. Torture itself causes real infamy to the victim of it. So the
result is, that by this method infamy will be taken away by the very fact
of its infliction!

It is not difficult to go back to the origin of this ridiculous law,
because the absurdities themselves that a whole nation adopts have always
some connection with other common ideas which the same nation respects.
The custom seems to have been derived from religious and spiritual ideas,
which have so great an influence on the thoughts of men, on nations,
and on generations. An infallible dogma assures us, that the stains
contracted by human weakness and undeserving of the eternal anger of
the Supreme Being must be purged by an incomprehensible fire. Now,
infamy is a civil stain; and as pain and fire take away spiritual and
incorporeal stains, why should not the agonies of torture take away the
civil stain of infamy? I believe that the confession of a criminal, which
some courts insist on as an essential requisite for condemnation, has
a similar origin;—because in the mysterious tribunal of repentance the
confession of sins is an essential part of the sacrament. This is the way
men abuse the surest lights of revelation; and as these are the only ones
which exist in times of ignorance, it is to them on all occasions that
docile humanity turns, making of them the most absurd and far-fetched
applications.

These truths were recognised by the Roman legislators, for they inflicted
torture only upon slaves, who in law had no personality. They have
been adopted by England, a nation, the glory of whose literature, the
superiority of whose commerce and wealth, and consequently of whose
power, and the examples of whose virtue and courage leave us no doubt as
to the goodness of her laws. Torture has also been abolished in Sweden;
it has been abolished by one of the wisest monarchs of Europe, who,
taking philosophy with him to the throne, has made himself the friend
and legislator of his subjects, rendering them equal and free in their
dependence on the laws, the sole kind of equality and liberty that
reasonable men can ask for in the present condition of things. Nor has
torture been deemed necessary in the laws which regulate armies, composed
though they are for the most part of the dregs of different countries,
and for that reason more than any other class of men the more likely
to require it. A strange thing, for whoever forgets the power of the
tyranny exercised by custom, that pacific laws should be obliged to learn
from minds hardened to massacre and bloodshed the most humane method of
conducting trials.



CHAPTER XIII.

PROSECUTIONS AND PRESCRIPTIONS.


As soon as the proofs of a crime and its reality are fully certified,
the criminal must be allowed time and opportunity for his defence;
but the time allowed must be so short as not to interfere with the
speediness of his punishment, which, as we have seen, is one of the
principal restraints from crime. A false philanthropy seems opposed to
this shortness of time; but all doubt will vanish, on reflection that the
more defective any system of law is, the greater are the dangers to which
innocence is exposed.

But the laws should fix a certain space of time both for the defence of
the accused and for the discovery of proofs against him. It would place
the judge in the position of a legislator were it his duty to fix the
time necessary for the latter. In the same way those atrocious crimes,
whose memory tarries long in men’s minds, deserve, when once proved, no
prescription in favour of a criminal who has fled from his country; but
lesser and obscure crimes should be allowed a certain prescription, which
may remove a man’s uncertainty concerning his fate, because the obscurity
in which for a long time his crimes have been involved deducts from the
bad example of his impunity, and the possibility of reform meantime
remains to him. It is enough to indicate these principles, because I
cannot fix a precise limit of time, except for a given system of laws and
in given social circumstances. I will only add that, the advantage of
moderate penalties in a nation being proved, the laws which shorten or
lengthen, according to the gravity of crimes, the term of prescription
or of proofs, thus making of prison itself or of voluntary exile a part
of the punishment, will supply an easy classification of a few mild
punishments for a very large number of crimes.

But these periods of time will not be lengthened in exact proportion to
the atrocity of crimes, since the probability of a crime is in inverse
ratio to its atrocity. It will, then, be necessary to shorten the period
for inquiry and to increase that of prescription; which may appear to
contradict what I said before, namely, that it is possible to inflict
equal penalties on unequal crimes, by counting as a penalty that period
of imprisonment or of prescription which precedes the verdict. To explain
to the reader my idea: I distinguish two kinds of crimes—the first,
atrocious crimes, beginning with homicide and including all the excessive
forms of wickedness; the second comprising less considerable crimes. This
distinction is founded in human nature. Personal security is a natural
right, the security of property a social one. The number of motives
which impel men to violate their natural affections is far smaller than
those which impel them, by their natural longing for happiness, to
violate a right which they do not find written in their hearts but only
in the conventions of society. The very great difference between the
probability of these two kinds of crime respectively makes it necessary
that they should be ruled by different principles. In cases of the more
atrocious crimes, because they are more uncommon, the time for inquiry
ought to be so much the less as the probability of the innocence of the
accused is greater; and the time of prescription ought to be longer,
as on an ultimate definite sentence of guilt or innocence depends the
destruction of the hope of impunity, the harm of which is proportioned
to the atrocity of the crime. But in cases of lesser criminality, where
the presumption in favour of a man’s innocence is less, the time for
inquiry should be longer; and as the harm of impunity is less, the
time of prescription should be shorter. But such a division of crimes
ought, indeed, not to be admitted, if the danger of impunity decreased
exactly in proportion to the greater probability of the crime. One should
remember that an accused man, whose guilt or innocence is uncertain, may,
though acquitted for lack of proofs, be subjected for the same crime to
a fresh imprisonment and inquiry, in the event of fresh legal proofs
rising up against him, so long as the time of prescription accorded by
the laws has not been past. Such at least is the compromise that I think
best fitted to preserve both the liberty and the security of the subject,
it being only too easy so to favour the one at the expense of the other,
that these two blessings, the inalienable and equal patrimony of every
citizen, are left unprotected and undefended, the one from declared or
veiled despotism, the other from the turbulence of civil anarchy.

There are some crimes which are at the same time of common occurrence
and of difficult proof. In them the difficulty of proof is equivalent
to a probability of innocence; and the harm of their impunity being so
much the less to be considered as their frequency depends on principles
other than the risk of punishment, the time for inquiry and the period
of prescription ought both to be proportionately less. Yet cases of
adultery and pederasty, both of difficult proof, are precisely those
in which, according to received principles, tyrannical presumptions
of _quasi-proofs_ and _half-proofs_ are allowed to prevail (as if
a man could be _half-innocent_ or _half-guilty_, in other words,
_half-punishable_ or _half-acquittable_); in which torture exercises its
cruel sway over the person of the accused, over the witnesses, and even
over the whole family of an unfortunate wretch, according to the coldly
wicked teaching of some doctors of law, who set themselves up as the rule
and standard for judges to follow.

In view of these principles it will appear strange (to anyone who does
not reflect, that reason has, so to speak, never yet legislated for a
nation), that it is just the most atrocious crimes or the most secret and
chimerical ones—that is, those of the least probability—which are proved
by conjectures or by the weakest and most equivocal proofs: as if it were
the interest of the laws and of the judge, not to search for the truth,
but to find out the crime; as if the danger of condemning an innocent
man were not so much the greater, the greater the probability of his
innocence over that of his guilt.

The majority of mankind lack that vigour which is equally necessary for
the greatest crimes as for the greatest virtues; whence it would appear,
that both extremes are contemporaneous phenomena in nations which depend
rather on the energy of their government and of the passions that tend to
the public good, than on their size and the constant goodness of their
laws. In the latter the weakened passions seem more adapted to maintain
than to improve the form of government. From which flows an important
consequence, namely, that great crimes in a nation do not always prove
its decline.



CHAPTER XIV.

CRIMINAL ATTEMPTS, ACCOMPLICES, IMPUNITY.


It does not follow, because the laws do not punish intentions, that
therefore a crime begun by some action, significative of the will to
complete it, is undeserving of punishment, although it deserves less than
a crime actually committed. The importance of preventing an attempt at a
crime justifies a punishment; but, as there may be an interval between
the attempt and the execution, the reservation of a greater punishment
for a consummated crime may present a motive for its non-completion.

The same may be said, though for a different reason, where there
are several accomplices of a crime, not all of them its immediate
perpetrators. When several men join together in an undertaking, the
greater its risk is, the more will they seek to make it equal for all
of them; the more difficult it will be, therefore, to find one of them
who will be willing to put the deed into execution, if he thereby incurs
a greater risk than that incurred by his accomplices. The only exception
would be where the perpetrator received a fixed reward, for then, the
perpetrator having a compensation for his greater risk, the punishment
should be equalised between him and his accomplices. Such reflections may
appear too metaphysical to whosoever does not consider that it is of the
utmost advantage for the laws to afford as few grounds of agreement as
possible between companions in crime.

Some courts promise impunity to an accomplice in a serious crime who will
expose his companions, an expedient that has its drawbacks as well as its
advantages. Among the former must be counted the national authorisation
of treachery, a practice which even criminals detest; for crimes of
courage are less pernicious to a people than crimes of cowardice, courage
being no ordinary quality, and needing only a beneficent directing force
to make it conduce to the public welfare, whilst cowardice is more
common and contagious, and always more self-concentrated than the other.
Besides, a tribunal which calls for the aid of the law-breaker proclaims
its own uncertainty and the weakness of the laws themselves. On the other
hand, the advantages of the practice are, the prevention of crimes and
the intimidation of the people, owing to the fact that the results are
visible whilst the authors remain hidden; moreover, it helps to show that
a man who breaks his faith to the laws, that is, to the public, is likely
also to break it in private life. I think that a general law promising
impunity to an accomplice who exposes a crime would be preferable to
a special declaration in a particular case, because in this way the
mutual fear which each accomplice would have of his own risk would tend
to prevent their association; the tribunal would not make criminals
audacious by showing that their aid was called for in a particular case.
Such a law, however, should accompany impunity with the banishment of
the informer.… But to no purpose do I torment myself to dissipate the
remorse I feel in authorising the inviolable laws, the monument of
public confidence, the basis of human morality, to resort to treachery
and dissimulation. What an example to the nation it would be, were the
promised impunity not observed, and were the man who had responded to
the invitation of the laws dragged by learned quibbles to punishment, in
spite of the public troth pledged to him! Such examples are not rare in
different countries; neither, therefore, is the number small, of those
who consider a nation in no other light than in that of a complicated
machine, whose springs the cleverest and the strongest move at their
will. Cold and insensible to all that forms the delight of tender and
sensitive minds, they arouse, with imperturbable sagacity, either the
softest feelings or the strongest passions, as soon as they see them of
service to the object they have in view, handling men’s minds just as
musicians do their instruments.



CHAPTER XV.

THE MILDNESS OF PUNISHMENTS.


From the simple consideration of the truths hitherto demonstrated it is
evident that the object of punishment is neither to torment and inflict
a sensitive creature nor to undo a crime already committed. Can he,
whose function it is, so far from acting from passion, to tranquillise
the private passions of his fellows, harbour in the body politic such
useless cruelty, the instrument either of furious fanatics or of weak
tyrants? Shall perchance the shrieks of an unhappy wretch call back from
never-receding time actions already executed? The object, therefore,
of punishment is simply to prevent the criminal from injuring anew his
fellow-citizens, and to deter others from committing similar injuries;
and those punishments and that method of inflicting them should be
preferred which, duly proportioned to the offence, will produce a more
efficacious and lasting impression on the minds of men and inflict the
least torture on the body of a criminal.

Who can read history without being horror-struck at the barbarous and
useless torments which men, who were called wise, in cold blood devised
and executed? Who is there but must feel his blood boil, when he regards
the thousands of wretches whom misery, either intended or tolerated by
the laws (which have always favoured the few and outraged the many),
has driven to a desperate return to the original state of nature; when
he sees them either accused by men endowed with the same senses, and
consequently with the same passions as themselves, of impossible crimes,
the fiction of timid ignorance, or guilty of nothing but fidelity to
their own principles; and when he sees them lacerated by slow tortures,
subject to well-contrived formalities, an agreeable sight for a fanatical
multitude?

In order that a punishment may attain its object, it is enough if the
evil of the punishment exceeds the advantage of the crime, and in this
excess of evil the certainty of punishment and the loss of the possible
advantage from the crime ought to be considered as part; all beyond this
is superfluous and consequently tyrannical. Men regulate their conduct by
the reiterated impression of evils they know, not by reason of evils they
ignore. Given two nations, in one of which, in the scale of punishments
proportioned to the scale of crimes, the severest penalty is perpetual
servitude, and in the other the wheel; I say that the former will have as
great a dread of its severest punishment as the latter will have; and if
there be any reason for transporting to the former country the greater
penalties of the other, the same reasoning will serve for increasing
still more the penalties of this latter country, passing imperceptibly
from the wheel to the slowest and most elaborate tortures, nay, even to
the last refinements of that science which tyrants understand only too
well.

The more cruel punishments become, the more human minds harden, adjusting
themselves, like fluids, to the level of objects around them; and the
ever living force of the passions brings it about, that after a hundred
years of cruel punishments, the wheel frightens men only just as much as
at first did the punishment of prison.

The very severity of a punishment leads men to dare so much the more to
escape it, according to the greatness of the evil in prospect; and many
crimes are thus committed to avoid the penalty of a single one. Countries
and times where punishments have been most severe have ever been those
where the bloodiest and most inhuman deeds have been committed, the same
spirit of ferocity that guided the hand of the legislator having guided
also that of the parricide and assassin; on the throne dictating iron
laws for the villanous souls of slaves to obey, and in the obscurity of
private life urging to the slaughter of tyrants, only to create fresh
ones in their stead.

Two other fatal consequences flow from the cruelty of punishments,
and are contrary to their very purpose, the prevention of crimes. The
first is, that it is not so easy to preserve the essential proportion
between crime and punishment, because, however much a studied cruelty
may diversify its forms, none of them can go beyond the extreme limit of
endurance which is a condition of the human organisation and sensibility.
When once this extreme limit is attained, it would be impossible to
invent such a corresponding increase of punishment for still more
injurious and atrocious crimes as would be necessary to prevent them.
The other consequence is, that impunity itself arises from the severity
of punishments. Men are restrained within limits both in good and evil;
and a sight too atrocious for humanity can only be a passing rage, not a
constant system, such as the laws ought to be; if the latter are really
cruel, either they are changed, or themselves give rise to a fatal
impunity.

I conclude with this reflection, that the scale of punishments should be
relative to the condition of a nation. On the hardened minds of a people
scarcely emerged from the savage state the impressions made should be
stronger and more sensible. One needs a thunderbolt for the destruction
of a fierce lion that faces round at the shot of a gun. But in proportion
as men’s minds become softened in the social state, their sensibility
increases, and commensurate with that increase should be the diminution
of the force of punishment, if it be desired to maintain any proportion
between the object and the sensation that attends it.



CHAPTER XVI.

CAPITAL PUNISHMENT.


This useless prodigality of punishments, by which men have never been
made any better, has driven me to examine whether the punishment
of death be really useful and just in a well organised government.
What kind of right can that be which men claim for the slaughter of
their fellow-beings? Certainly not that right which is the source of
sovereignty and of laws. For these are nothing but the sum-total of
the smallest portions of individual liberty, and represent the general
will, that is, the aggregate of individual wills. But who ever wished to
leave to other men the option of killing him? How in the least possible
sacrifice of each man’s liberty can there be a sacrifice of the greatest
of all goods, namely, of life? And if there could be that sacrifice, how
would such a principle accord with the other, that a man is not the
master of his own life? Yet he must have been so, could he have given to
himself or to society as a body this right of killing him.

The death penalty therefore is not a right; I have proved that it cannot
be so; but it is a war of a nation against one of its members, because
his annihilation is deemed necessary and expedient. But if I can show
that his death is neither necessary nor expedient, I shall have won the
cause of humanity.

The death of a citizen can only be deemed necessary for two reasons.
The first is when, though deprived of his personal freedom, he has
still such connections and power as threaten the national security;
when his existence is capable of producing a dangerous revolution in
the established form of government. The death of a citizen becomes
then necessary when the nation is recovering or losing its liberty, or
in a time of anarchy, when confusion takes the place of laws; but in
times when the laws hold undisturbed sway, when the form of government
corresponds with the wishes of a united nation, and is defended
internally and externally by force, and by opinion which is perhaps even
stronger than force, where the supreme power rests only with the real
sovereign, and riches serve to purchase pleasures but not places, I see
no necessity for destroying a citizen, except when his death might be the
real and only restraint for diverting others from committing crimes; this
latter case constituting the second reason for which one may believe
capital punishment to be both just and necessary.

Since mankind generally, suspicious always of the language of reason, but
ready to bow to that of authority, remain unpersuaded by the experience
of all ages, in which the supreme punishment has never diverted resolute
men from committing offences against society; since also they are equally
unmoved by the example of the Romans and by twenty years of the reign
of the Empress Elizabeth of Russia, during which she presented this
illustrious example to the fathers of their people, an example which
is at least equivalent to many conquests bought by the blood of her
country’s sons, it is sufficient merely to consult human nature itself,
to perceive the truth of the assertion I have made.

The greatest effect that any punishment has upon the human mind is not
to be measured by its intensity but by its duration, for our sensibility
is more easily and permanently affected by very slight but repeated
impressions than by a strong but brief shock. Habit holds universal sway
over every sentient being, and as we speak and walk and satisfy our
needs by its aid, so moral ideas only stamp themselves on our mind by
long and repeated impressions. It is not the terrible yet brief sight of
a criminal’s death, but the long and painful example of a man deprived
of his liberty, who, having become as it were a beast of burthen,
repays with his toil the society he has offended, which is the strongest
restraint from crimes. Far more potent than the fear of death, which men
ever have before their eyes in the remote distance, is the thought, so
efficacious from its constant recurrence: ‘I myself shall be reduced to
as long and miserable a condition if I commit similar misdeeds.’

Capital punishment makes an impression in prospect which, with all
its force, does not fully meet that ready spirit of forgetfulness, so
natural to man even in his most important concerns, and so liable to
be accelerated by his passions. As a general rule, men are startled
by the sight of violent sufferings, but not for long, and therefore
such impressions are wont so to transform them as to make of ordinary
men either Persians or Spartans; but in a free and settled government
impressions should rather be frequent than strong.

Capital punishment becomes a spectacle for the majority of mankind, and
a subject for compassion and abhorrence for others; the minds of the
spectators are more filled with these feelings than with the wholesome
terror the law pretends to inspire. But in moderate and continuing
penalties the latter is the predominant feeling, because it is the only
one. The limit, which the legislator should affix to the severity of
penalties, appears to lie in the first signs of a feeling of compassion
becoming uppermost in the minds of the spectators, when they look upon
the punishment rather as their own than as that of the criminal.

In order that a punishment may be just, it must contain only such
degrees of intensity as suffice to deter men from crimes. But as there
is no one who on reflection would choose the total and perpetual loss
of his liberty, however great the advantages offered him by a crime,
the intensity of the punishment of servitude for life, substituted for
capital punishment, has that in it which is sufficient to daunt the most
determined courage. I will add that it is even more deterrent than death.
Very many men face death calmly and firmly, some from fanaticism, some
from vanity, which almost always attends a man to the tomb; others from a
last desperate attempt either no longer to live or to escape from their
misery; but neither fanaticism nor vanity have any place among fetters
and chains, under the stick, under the yoke, in a cage of iron; the
wretch thus punished is so far from terminating his miseries that with
his punishment he only begins them.

The mind of man offers more resistance to violence and to extreme but
brief pains than it does to time and to incessant weariness; for whilst
it can, so to speak, gather itself together for a moment to repel the
former, its vigorous elasticity is insufficient to resist the long and
repeated action of the latter. In the case of capital punishment, each
example presented of it is all that a single crime affords; in penal
servitude for life, a single crime serves to present numerous and lasting
warnings. And if it be important that the power of the laws should often
be witnessed, there ought to be no long intervals between the examples
of the death penalty; but this would presuppose the frequency of crimes,
so that, to render the punishment effective, it must not make on men
all the impression that it ought to make, in other words, it must be
useful and not useful at the same time. And should it be objected that
perpetual servitude is as painful as death, and therefore equally cruel,
I will reply, that, taking into consideration all the unhappy moments of
servitude, it will perhaps be even more painful than death; but whilst
these moments are spread over the whole of a lifetime, death exercises
all its force in a single moment. There is also this advantage in penal
servitude, that it has more terrors for him who sees it than for him
who suffers it, for the former thinks of the whole sum-total of unhappy
moments, whilst the latter, by the unhappiness of the present moment, has
his thoughts diverted from that which is to come. All evils are magnified
in imagination, and every sufferer finds resources and consolations
unknown to and unbelieved in by spectators, who substitute their own
sensibility for the hardened soul of a criminal.

The following is the kind of reasoning adopted by the thief or the
assassin, whose only motives for not breaking the laws are the gallows
or the wheel. (I know that the analysis of one’s own thoughts is an art
only learnt by education, but a thief does not the less act according to
certain principles because he is unable to express them). ‘Of what sort,’
he argues, ‘are these laws that I am bound to observe, that leave so
great an interval between myself and the rich man? He denies me the penny
I ask of him, and excuses himself by ordering from me a work of which
he himself knows nothing. Who has made these laws? Were they not made
by rich and powerful men, who have never deigned to visit the wretched
hovels of the poor, who have never divided a musty loaf of bread amid
the innocent cries of famished children and the tears of a wife? Let
us break these bonds, which are fatal to the greater number, and only
useful to a few indolent tyrants; let us attack injustice in its source.
I will return to my state of natural independence; I will live for some
time happy and free on the fruits of my courage and address; and if
the day should ever come when I have to suffer and repent for it, the
time of suffering will be short, and I shall have one day of misery for
many years of liberty and pleasure. As the king of a small band, I will
correct the errors of fortune, and see these tyrants pale and tremble
before one, whom in their insolent arrogance they rated lower than their
horses or their dogs.’ Then religion hovers before the mind of the
criminal, who turns everything to a bad use, and offering him a facile
repentance and an almost certain eternity of bliss does much to diminish
in his eyes the horror of that last tragedy of all.

But the man who sees in prospect a great number of years, or perhaps the
whole of his life, to be passed in servitude and suffering before the
eyes of fellow-citizens with whom he is living in freedom and friendship,
the slave of those laws which had once protected him, makes a useful
comparison of all these circumstances with the uncertain result of his
crimes and with the shortness of the time for which he would enjoy their
fruits. The ever present example of those whom he actually sees the
victims of their own imprudence, impresses him much more strongly than
the sight of a punishment which hardens rather than corrects him.

Capital punishment is injurious by the example of barbarity it presents.
If human passions, or the necessities of war, have taught men to shed
one another’s blood, the laws, which are intended to moderate human
conduct, ought not to extend the savage example, which in the case of a
legal execution is all the more baneful in that it is carried out with
studied formalities. To me it seems an absurdity, that the laws, which
are the expression of the public will, which abhor and which punish
murder, should themselves commit one; and that, to deter citizens from
private assassination, they should themselves order a public murder. What
are the true and the most useful laws? Are they not those covenants and
conditions which all would wish observed and proposed, when the incessant
voice of private interest is hushed or is united with the interest of the
public? What are every man’s feelings about capital punishment? Let us
read them in the gestures of indignation and scorn with which everyone
looks upon the executioner, who is, after all, an innocent administrator
of the public will, a good citizen contributory to the public welfare,
an instrument as necessary for the internal security of a State as
brave soldiers are for its external. What, then, is the source of this
contradiction; and why is this feeling, in spite of reason, ineradicable
in mankind? Because men in their most secret hearts, that part of them
which more than any other still preserves the original form of their
first nature, have ever believed that their lives lie at no one’s
disposal, save in that of necessity alone, which, with its iron sceptre,
rules the universe.

What should men think when they see wise magistrates and grave priests
of justice with calm indifference causing a criminal to be dragged
by their slow procedure to death; or when they see a judge, whilst a
miserable wretch in the convulsions of his last agonies is awaiting the
fatal blow, pass away coldly and unfeelingly, perhaps even with a secret
satisfaction in his authority, to enjoy the comforts and pleasures of
life? ‘Ah’ they will say, ‘these laws are but the pretexts of force,
and the studied cruel formalities of justice are but a conventional
language, used for the purpose of immolating us with greater safety, like
victims destined in sacrifice to the insatiable idol of tyranny. That
assassination which they preach to us as so terrible a misdeed we see
nevertheless employed by them without either scruple or passion. Let us
profit by the example. A violent death seemed to us a terrible thing in
the descriptions of it that were made to us, but we see it is a matter of
a moment. How much less terrible will it be for a man who, not expecting
it, is spared all that there is of painful in it.’

Such are the fatal arguments employed, if not clearly, at least vaguely,
by men disposed to crimes, among whom, as we have seen, the abuse of
religion is more potent than religion itself.

If I am confronted with the example of almost all ages and almost all
nations who have inflicted the punishment of death upon some crimes, I
will reply, that the example avails nothing before truth, against which
there is no prescription of time; and that the history of mankind conveys
to us the idea of an immense sea of errors, among which a few truths,
confusedly and at long intervals, float on the surface. Human sacrifices
were once common to almost all nations, yet who for that reason will dare
defend them? That some few states, and for a short time only, should
have abstained from inflicting death, rather favours my argument than
otherwise, because such a fact is in keeping with the lot of all great
truths, whose duration is but as of a lightning flash in comparison with
the long and darksome night that envelops mankind. That happy time has
not yet arrived when truth, as error has hitherto done, shall belong to
the majority of men; and from this universal law of the reign of error
those truths alone have hitherto been exempt, which supreme wisdom has
seen fit to distinguish from others, by making them the subject of a
special revelation.

The voice of a philosopher is too feeble against the noise and cries
of so many followers of blind custom, but the few wise men scattered
over the face of the earth will respond to me from their inmost hearts;
and, amid the many obstacles that keep it from a monarch, should truth
perchance arrive in spite of him at his throne, let him know that it
comes there attended by the secret wishes of all men; let him know that
before his praises the bloody fame of conquerors will be silenced, and
that posterity, which is just, will assign him the foremost place among
the pacific triumphs of a Titus, an Antonine, or a Trajan.

Happy were humanity, if laws were now dictated to it for the first
time, when we see on the thrones of Europe beneficent monarchs, men
who encourage the virtues of peace, the sciences and the arts, who are
fathers to their people, who are crowned citizens, and the increase of
whose authority forms the happiness of their subjects, because it removes
that intermediate despotism, more cruel because less secure, by which the
people’s wishes, always sincere, and always attended to when they can
reach the throne, have been usually intercepted and suppressed. If they,
I say, suffer the ancient laws to exist, it is owing to the infinite
difficulties of removing from errors the revered rust of many ages; which
is a reason for enlightened citizens to desire with all the greater
ardour the continual increase of their authority.



CHAPTER XVII.

BANISHMENT AND CONFISCATIONS.


Whosoever disturbs the public peace, or obeys not the laws, that is, the
conditions under which men bear with and defend one another, ought to be
excluded from society, that is, to be banished from it.

Banishment, it would seem, should be employed in the case of those
against whom, when accused of an atrocious crime, there is a great
probability but not a certainty of guilt; but for this purpose a statute
is required, as little arbitrary and as precise as possible, condemning
to banishment any man who shall have placed his country in the fatal
dilemma of either fearing him or of injuring him, leaving him, however,
the sacred right of proving his innocence. Stronger reasons then should
exist to justify the banishment of a native than of a foreigner, of a man
criminated for the first time than of one who has been often so situated.

But should a man who is banished and excluded for ever from the society
of which he was a member be also deprived of his property? Such a
question may be regarded from different points of view. The loss of
property is a greater punishment than banishment; there ought, therefore,
to be some cases in which, according to his crime, a man should lose
the whole, or part, or none of his property. The confiscation of the
whole will occur, when the legal sentence of banishment is of a kind to
annihilate all the ties that exist between society and its offending
member; for in such a case the citizen dies, and only the man remains;
and with regard to the political body civil death should produce the
same effect as natural death. It would seem then that the confiscated
property should pass to a man’s lawful heirs rather than to the head
of the State, since death and banishment in its extreme form are the
same with regard to the body politic. But it is not by this subtlety
that I dare to disapprove of confiscations of property. If some have
maintained that confiscations have acted as checks on acts of revenge
and on the great power of individuals, it is from neglecting to consider
that, however much good punishments may effect, they are not for that
reason always just, because to be just they must be necessary; and
an expedient injustice can be tolerated by no legislator, who wishes
to close all doors against watchful tyranny, ever ready to hold out
flattering hopes, by temporary advantages and by the prosperity of a few
persons of celebrity, in disregard of future ruin and of the tears of
numberless persons of obscurity. Confiscations place a price on the heads
of the feeble, cause the innocent to suffer the punishment of the guilty,
and make the commission of crimes a desperate necessity even for the
innocent. What sadder sight can there be than that of a family dragged
down to infamy and misery by the crimes of its head, unable to prevent
them by the submission imposed on it by the laws, even supposing such
prevention to have been within its power!



CHAPTER XVIII.

INFAMY.


Infamy is a sign of public disapprobation, depriving a criminal of the
good-will of his countrymen, of their confidence, and of that feeling
almost of fraternity that a common life inspires. It does not depend upon
the laws. Hence the infamy which the laws inflict should be the same
as that which arises from the natural relations of things, the same as
that taught by universal morality, or by that particular morality, which
depends on particular systems, and sets the law for ordinary opinions
or for this and that nation. If the one kind of infamy is different
from the other, either the law loses in public esteem, or the ideas of
morality and honesty disappear, in spite of declamations, which are never
efficacious against facts. Whoever declares actions to be infamous which
are in themselves indifferent, detracts from the infamy of actions that
are really in themselves infamous.

Corporal and painful punishments should not be inflicted for those
crimes which have their foundation in pride, and draw from pain itself
their glory and nutriment. For such crimes ridicule and infamy are more
fitted, these being penalties which curb the pride of fanatics by the
pride of the beholders, and only let truth itself escape their tenacity
by slow and obstinate efforts. By such an opposition of forces against
forces, and of opinions against opinions, the wise legislator destroys
that admiration and astonishment among a people, which a false principle
causes, whose original absurdity is usually hidden from view by the
plausible conclusions deduced from it.

Penalties of infamy ought neither to be too common, nor to fall upon too
many persons at a time; not too common, because the real and too frequent
effects of matters of opinion weaken the force of opinion itself; not too
general, because the disgrace of many persons resolves itself into the
disgrace of none of them.

This, then, is the way to avoid confounding the relations and invariable
nature of things, which, being unlimited by time and in ceaseless
operation, confounds and overturns all narrow regulations that depart
from it. It is not only the arts of taste and pleasure which have for
their universal principle the faithful imitation of nature; but the art
of politics itself, at least that which is true and permanent, is subject
to this general maxim, since it consists in nothing else than the art
of directing in the best way and to the same purposes the immutable
sentiments of mankind.



CHAPTER XIX.

THE PROMPTNESS OF PUNISHMENTS.


The more speedily and the more nearly in connection with the crime
committed punishment shall follow, the more just and useful it will be.
I say more just, because a criminal is thereby spared those useless and
fierce torments of suspense which are all the greater in a person of
vigorous imagination and fully conscious of his own weakness; more just
also, because the privation of liberty, in itself a punishment, can only
precede the sentence by the shortest possible interval compatible with
the requirements of necessity. Imprisonment, therefore, is simply the
safe custody of a citizen pending the verdict of his guilt; and this
custody, being essentially disagreeable, ought to be as brief and easy
as possible. The shortness of the time should be measured both by the
necessary length of the preparations for the trial and by the seniority
of claim to a judgment. The strictness of confinement should be no more
than is necessary either for the prevention of escape or for guarding
against the concealment of the proof of crimes. The trial itself should
be finished in the shortest time possible. What contrast more cruel
than that between a judge’s ease and a defendant’s anguish? between
the comforts and pleasures of an unfeeling magistrate on the one hand,
and the tears and wretchedness of a prisoner on the other? In general,
the weight of a punishment and the consequence of a crime should be as
efficacious as possible for the restraint of other men and as little hard
as possible for the individual who is punished; for one cannot call that
a proper form of society, where it is not an infallible principle, that
its members intended, in constituting it, to subject themselves to as few
evils as possible.

I said that the promptness of punishment is more useful, because the
shorter the interval of time between the punishment and the misdeed,
the stronger and the more lasting in the human mind is the association
of these ideas, crime and punishment, so that insensibly they come to
be considered, the one as the cause and the other as its necessary and
inevitable consequence. It is a proved fact that the association of
ideas is the cement of the whole fabric of the human intellect, and
that without it pleasure and pain would be isolated and ineffective
feelings. The further removed men are from general ideas and universal
principles, that is, the more commonplace they are, the more they act
by their immediate and nearest associations, to the neglect of remoter
and more complex ones, the latter being of service only to men strongly
impassioned for a given object of pursuit, inasmuch as the light of
attention illuminates a single object, whilst it leaves the others
obscure. They are also of service to minds of a higher quality, because,
having acquired the habit of running rapidly over many subjects at a
time, they possess facility in placing in contrast with one another many
partial feelings, so that the result of their thoughts, in other words,
their action, is less perilous and uncertain.

The close connection, therefore, of crime and punishment is of the
utmost importance, if it be desirable that in rough and common minds
there should, together with the seductive idea of an advantageous crime,
immediately start up the associated idea of its punishment. Long delay
has no other effect than the perpetual separation of these two ideas;
and whatever the impression produced by the punishment of a crime, it
produces it less as a punishment than as a sight, and only produces it
when the horror of the particular crime, which would serve to strengthen
the feeling of the punishment, has been weakened in the minds of the
spectators.

Another principle would serve admirably to draw still closer the
important connection between a misdeed and its punishment, and that is,
that the latter should as far as possible conform to the nature of the
crime. This analogy facilitates marvellously the contrast that ought to
exist between the impulse to the crime and the counter-influence of the
punishment, the one, that is, diverting the mind and guiding it to an end
quite different from that to which the seductive idea of transgressing
the law endeavours to lead it.

Persons guilty of lesser crimes are usually either punished in the
obscurity of a prison, or transported, as an example to nations who have
given no offence, to a distant and therefore almost useless servitude.
Since the gravest crimes are not those which men are tempted to commit
on the spur of the moment, the public punishment of a great misdeed will
be regarded by most men as strange and of impossible occurrence; but the
public punishment of lighter crimes, to which men’s thoughts more readily
incline, will make an impression, which, at the same time that it diverts
the mind from them, will restrain it still more from crimes of greater
gravity. Punishments should not only be proportioned to one another and
to crimes in point of force, but also in the mode of their infliction.



CHAPTER XX.

CERTAINTY OF PUNISHMENTS—PARDONS.


One of the greatest preventives of crimes is, not the cruelty of the
punishments attached to them, but their infallibility, and consequently
that watchfulness on the part of the magistrates and that inexorable
severity on the part of the judge which, to be a useful virtue, must
coincide with a mild system of laws. The certainty of a punishment,
moderate though it be, will ever make a stronger impression than the
fear of another, more terrible, perhaps, but associated with the hope
of impunity; for even the least evils when certain always terrify men’s
minds, and hope, that gift of heaven, which often makes up to us for
everything, always throws into the distance the idea of greater evils,
especially when its force is increased by impunity, which avarice and
weakness so often grant.

It is sometimes the custom to release a man from the punishment of a
slight crime when the injured person pardons him: an act, indeed, which
is in accordance with mercy and humanity but contrary to public policy;
as if a private citizen could by his remission do away with the necessity
of the example in the same way that he can excuse the reparation due for
the offence. The right of punishing does not rest with an individual,
but with the community as a whole, or the sovereign. An individual can
only renounce his particular portion of that right, not annul that of all
the rest.

In proportion as punishments become milder, clemency and pardon become
less necessary. Happy the nation in which their exercise should be
baneful! Clemency, therefore, that virtue, which has sometimes made up
in a sovereign for failings in all the other duties of the throne, ought
to be excluded in a perfect system of legislation, where punishments
are mild and the method of trial regular and expeditious. This truth
will appear a hard one to anybody living in the present chaotic state
of the criminal law, where the necessity of pardon and favours accords
with the absurdity of the laws and with the severity of sentences of
punishment. This right of pardon is indeed the fairest prerogative of
the throne, the most desirable attribute of sovereignty; it is, however,
the tacit mark of disapproval that the beneficent dispensers of the
public happiness exhibit towards a code, which with all its imperfections
claims in its favour the prejudice of ages, the voluminous and imposing
array of innumerable commentators, the weighty apparatus of unending
formalities, and the adhesion of those persons of half-learning who,
though less feared than real philosophers, are really more dangerous.
But let it be remembered that clemency is the virtue of the maker, not
of the executor, of the laws; that it should be conspicuous in the code
of laws rather than in particular judgments; that the showing to men,
that crimes may be pardoned and that punishment is not their necessary
consequence, encourages the hope of impunity, and creates the belief
that sentences of condemnation, which might be remitted and are not, are
rather violent exhibitions of force than emanations of justice. What
shall be said then when the sovereign grants a pardon, that is, public
immunity to an individual, and when a private act of unenlightened
kindness constitutes a public decree of impunity? Let the laws therefore
be inexorable and their administrators in particular cases inexorable,
but let the law-maker be mild, merciful, and humane. Let him found his
edifice, as a wise architect, on the basis of self-love; let the general
interest be the sum of the interests of each, and he will no longer be
constrained, by partial laws and violent remedies to separate at every
moment the public welfare from that of individuals, and to raise the
appearance of public security on fear and mistrust. As a profound and
feeling philosopher let him allow men, that is, his brethren, to enjoy in
peace that small share of happiness which is given them to enjoy in this
corner of the universe, in that immense system established by the First
Cause, by Him Who Is.



CHAPTER XXI.

ASYLUMS OF REFUGE.


There remain two questions for me to examine: the first, whether asylums
of refuge are just, and whether international agreements of extradition
are expedient or not. There should be no spot within the boundaries of
any country independent of the laws. Every citizen should be followed
by their power, as every substance is followed by its shadow. There is
only a difference of degree between impunity and the right of asylum;
and as the effective influence of punishment consists more in its
inevitability than in its violence, asylums do more to invite to crimes
than punishments do to deter from them. The multiplication of asylums is
the formation of so many petty sovereignties; for where there are no laws
to command, there it is easy for new laws, opposed to the general laws of
a country, to be formed, and consequently for a spirit opposed to that of
the whole collective social body to arise. All history shows that from
asylums have issued great revolutions in States and in the opinions of
mankind.

Some persons have maintained that a crime, that is, an action contrary
to the laws, is punishable wherever committed, as if the character of
subject were indelible, or, in other words, synonymous with, nay, worse
than, the character of slave; as if a man could be the subject of one
kingdom and the resident of another, or as if his actions could without
contradiction be subordinate to two sovereign powers and to two legal
systems often contradictory. So some think that a cruel action done, say,
at Constantinople is punishable at Paris, for the abstract reason that
he who offends humanity deserves to have collective humanity for his
enemy, and merits universal execration; as if judges were the avengers
of human sensibility in general, and not rather of the covenants that
bind men together. The place of punishment is the place of the crime,
because there, and there only, is it a compulsory duty to injure an
individual, to prevent an injury to the public. A villain, but one who
has not broken the covenants of the society of which he was not a member,
may be an object of fear, and for that reason be expelled and exiled by
the superior power of that society; but he cannot be legally and formally
punished, since it is for the laws to avenge, not the intrinsic malice of
particular actions, but the violation of compacts.

But whether the international extradition of criminals be useful I would
not venture to decide, until laws more in conformity with the needs of
humanity, until milder penalties, and until the emancipation of law from
the caprice of mere opinion, shall have given security to oppressed
innocence and hated virtue; until tyranny shall have been confined,
by the force of universal reason which ever more and more unites the
interests of kings and subjects, to the vast plains of Asia; however much
the conviction of finding nowhere a span of earth where real crimes were
pardoned might be the most efficacious way of preventing their occurrence.



CHAPTER XXII.

OF PROSCRIPTION.


The second question is, whether it is expedient to place a reward on the
head of a known criminal, and to make of every citizen an executioner
by arming him against the offender. Either the criminal has fled from
his country or he is still within it. In the first case the sovereign
encourages the commission of a crime and exposes its author to a
punishment, being thereby guilty of an injury and of an usurpation of
authority in the dominions of another, and authorising other nations
to do the same by himself. In the second case the sovereign displays
his own weakness, for he who has the power wherewith to defend himself
seeks not to purchase it. Moreover, such an edict upsets all ideas of
morality and virtue, which are ever ready to vanish from the human
mind at the very slightest breath. Now the laws invite to treachery,
and anon they punish it; with one hand the legislator tightens the
bonds of the family, of kindred, and of friendship, whilst with the
other he rewards whosoever violates and despises them; always in
self-contradiction, he at one moment invites to confidence the suspicious
natures of men, and at another scatters mistrust broadcast among them.
Instead of preventing one crime, he causes a hundred. These are the
resources of weak nations, whose laws are but the temporary repairs of
a ruined building that totters throughout. In proportion as a nation
becomes enlightened, good faith and mutual confidence become necessary,
and tend ever more to identify themselves with true policy. Tricks,
intrigues, dark and indirect paths, are for the most part foreseen, and
the general quickness of all men collectively over-reaches and blunts
that of single individuals. The very ages of ignorance, in which public
morality inclines men to obey the dictates of private morality, serve
as instruction and experience for the ages of enlightenment. But laws
which reward treachery and stir up clandestine hostility by spreading
mutual suspicion among citizens, are opposed to this union of private and
public morality, a union which is so necessary, and to the observance of
which individuals might owe their happiness, nations their peace, and
the universe a somewhat longer period of quiet and repose from the evils
which at present pervade it.



CHAPTER XXIII.

PROPORTION BETWEEN CRIMES AND PUNISHMENTS.


Not only is it the general interest that crimes should not be committed,
but that they should be rare in proportion to the evils they cause
to society. The more opposed therefore that crimes are to the public
welfare, and the more numerous the incentives to them, the stronger
should be the repellent obstacles. This principle accordingly establishes
the necessity of a certain proportion between crimes and punishments.

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.
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.

It is impossible to prevent all the disorders that may arise in the
universal conflict of human passions. Their increase depends on that of
population and on the crossings of private interests, which cannot be
directed with geometrical exactness to the public welfare. In political
arithmetic the calculation of probabilities must be substituted for
mathematical exactness. Glance at the history of the world, and you
will see disorders increase with the increase of the bounds of empire;
thus national feeling being to the same extent diminished, the general
inducement to crime increases with the greater interest of each
individual in such disorders, and on this account the necessity for
aggravating penalties ever continues to increase.

That force, similar to the force of gravitation, which constrains us
to seek our own well-being, only admits of counteraction in proportion
to the obstacles opposed to it. The effects of this force make up the
confused series of human actions; if these clash together and impede one
another, punishments, which I would call _political obstacles_, prevent
bad effects from resulting, without destroying the impelling cause, which
lies in the sensibility inseparable from humanity; and the legislator, in
enacting them, acts the part of a clever architect, whose function it is
to counteract the tendency of gravitation to cause a building to fall,
and to bring to bear all the lines which contribute to its strength.

Given the necessity of the aggregation of mankind, and given the
covenants which necessarily result from the very opposition of private
interests, a scale of offences may be traced, beginning with those which
tend directly to the destruction of society, and ending with acts of
the smallest possible injustice committed against individual members
of it. Between these extremes are comprised all the actions opposed to
the public welfare which are called crimes, and which by imperceptible
degrees decrease in enormity from the highest to the lowest. If
the infinite and obscure combinations of human actions admitted of
mathematical treatment, there ought to be a corresponding scale of
punishments, varying from the severest to the slightest penalty. If there
were an exact and universal scale of crimes and punishments, we should
have an approximate and general test by which to gauge the degrees of
tyranny and liberty in different governments, the relative state of the
humanity or wickedness of different nations. But the wise legislator will
rest satisfied with marking out the principal divisions in such a scale,
so as not to invert their order, nor to affix to crimes of the first
degree punishments due to those of the last.



CHAPTER XXIV.

THE MEASURE OF PUNISHMENTS.


We have seen that the true measure of crimes is the injury done to
society. This is one of those palpable truths which, however little
dependent on quadrants or telescopes for their discovery, and fully
within the reach of any ordinary intelligence, are yet, by a marvellous
combination of circumstances, only recognised clearly and firmly by
some few thinkers, belonging to every nationality and to every age. But
Asiatic ideas, and passions clothed with authority and power, have,
generally by imperceptible movements, sometimes by violent assaults on
the timid credulity of mankind, dissipated those simple notions, which
perhaps formed the first philosophy of primitive communities, and to
which the enlightenment of this age seems likely to reconduct us, but
to do so with that greater sureness, which can be gained from an exact
investigation into things, from a thousand unhappy experiences, and from
the very obstacles that militate against it.

They who have thought that the criminal’s intention was the true measure
of crimes were in the wrong. For the intention depends on the actual
impression of things upon a man, and on his precedent mental disposition,
things which vary in all men and in each man, according to the very
rapid succession of his ideas, his passions, and his circumstances. It
would, therefore, be necessary to form not only a particular code for
each citizen, but a fresh law for every crime. Sometimes with the best
intentions men do the greatest evil to society; and sometimes with the
very worst they do it the greatest good.

Others again measure crimes rather by the rank of the person injured
than by their importance in regard to the public weal. Were this the
true measure of crimes, any act of irreverence towards the Supreme Being
should be punished more severely than the assassination of a monarch,
whereas the superiority of His nature affords an infinite compensation
for the difference of the offence.

Lastly, some have thought that the gravity of an act’s sinfulness should
be an element in the measure of crimes. But an impartial observer of the
true relations between man and man, and between man and God, will easily
perceive the fallacy of this opinion. For the former relationship is one
of equality; necessity alone, from the clash of passions and opposing
interests, having given rise to the idea of the _public utility_, the
basis of human justice. But the other relationship is one of dependence
on a perfect Being and Creator, who has reserved to Himself alone the
right of being at the same time legislator and judge, and can alone
unite the two functions without bad effects. If He has decreed eternal
punishments to those who disobey His omnipotence, what insect shall
dare to take the place of Divine justice, or shall wish to avenge that
Being, who is all-sufficient to Himself, who can receive from things no
impression of pleasure nor of pain, and who alone of all beings acts
without reaction? The degree of sinfulness in an action depends on the
unsearchable wickedness of the heart, which cannot be known by finite
beings without a revelation. How, then, found thereon a standard for the
punishment of crimes? In such a case men might punish when God pardons,
and pardon when God punishes. If men can act contrary to the Almighty by
offending Him, they may also do so in the punishments they inflict.



CHAPTER XXV.

THE DIVISION OF PUNISHMENTS.


Some crimes tend directly to the destruction of society or to the
sovereign who represents it; others affect individual citizens, by
imperilling their life, their property, or their honour; whilst others,
again, are actions contrary to the positive or negative obligations which
bind every individual to the public weal.

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.

The opinion that each citizen should have liberty to do whatsoever is
not contrary to the laws, without fear of any other inconvenience than
such as may arise from the action itself—this is the political dogma
that should be believed by the people and promulgated by the chief
magistrates, a dogma as sacred as that of the incorrupt guardianship
of the laws, without which there can be no legitimate society; a just
compensation to mankind for their sacrifice of that entire liberty of
action which belongs to every sensitive being, and is only limited by the
extent of its force. This it is that forms liberal and vigorous souls,
and enlightened minds; that makes men virtuous with that virtue which can
resist fear, and not with that flexible kind of prudence which is only
worthy of a man who can put up with a precarious and uncertain existence.

Whosoever will read with a philosophical eye the codes and annals of
different nations will find almost always that the names of _virtue_ and
_vice_, of _good citizen_ and _criminal_, are changed in the course of
ages, not in accordance with the changes that occur in the circumstances
of a country, and consequently in conformity with the general interest,
but in accordance with the passions and errors that have swayed different
legislators in succession. He will observe full often, that the passions
of one age form the basis of the morality of later ones; that strong
passions, the offspring of fanaticism and enthusiasm, weakened and, so
to speak, gnawed away by time (which reduces to a level all physical and
moral phenomena) become little by little the prudence of the age, and a
useful instrument in the hand of the strong man and the clever. In this
way the vaguest notions of honour and virtue have been produced; for they
change with the changes of time, which causes names to survive things; as
also with the changes of rivers and mountains, which form frequently the
boundaries of moral no less than of physical geography.



CHAPTER XXVI.

CRIMES OF HIGH TREASON.


The first class of crimes—that is, the worst, because they are the most
injurious to society—are those known as crimes of high treason. Only
tyranny and ignorance, which confound words and ideas of the clearest
meaning, can apply this name, and consequently the heaviest punishment,
to different kinds of crimes, thus rendering men, as in a thousand other
cases, the victims of a word. Every crime, be it ever so private, injures
society; but every crime does not aim at its immediate destruction.
Moral, like physical actions, have their limited sphere of activity, and
are differently circumscribed, like all the movements of nature, by time
and space; and therefore only a sophistical interpretation, which is
generally the philosophy of slavery, can confound what eternal truth has
distinguished by immutable differences.



CHAPTER XXVII.

CRIMES AGAINST PERSONAL SECURITY—ACTS OF VIOLENCE—PUNISHMENTS OF NOBLES.


After crimes of high treason come crimes opposed to the personal security
of individuals. This security being the primary end of every properly
constituted society, it is impossible not to affix to the violation of
any citizen’s right of personal security one of the severest punishments
that the laws allow.

Some crimes are injuries to a man’s person, others to his property, and
the former should certainly be punished by corporal punishments.

Offences, therefore, against personal security and liberty are among the
greatest of crimes. Under this head fall not only the assassinations and
thefts of the common people, but those also committed by the nobles and
magistrates, whose influence, acting with greater force and to a greater
distance, destroys in those subject to them all ideas of justice and
duty, and gives strength to those ideas of the right of the strongest,
which are equally perilous ultimately to him who exercises no less than
to him who endures it.

Neither the noble nor the rich man ought to be able to pay a price for
injuries committed against the feeble and the poor; else riches, which,
under the protection of the laws, are the prize of industry, become the
nourishment of tyranny. Whenever the laws suffer a man in certain cases
to cease to be a _person_ and to become a _thing_, there is no liberty;
for then you will see the man of power devoting all his industry to
gather from the numberless combinations of civil life those which the law
grants in his favour. This discovery is the magic secret that changes
citizens into beasts of burden, and in the hand of the strong man forms
the chain wherewith to fetter the actions of the imprudent and the weak.
This is the reason why in some governments, that have all the semblance
of liberty, tyranny lies hidden or insinuates itself unforeseen, in some
corner neglected by the legislator, where insensibly it gains force and
grows.

Men oppose the strongest barriers against open tyranny, but they see
not the imperceptible insect, which gnaws them away, and makes for the
invading stream an opening that is all the more sure by very reason of
its concealment from view.

Of what kind, then, will be the punishments due to the crimes of nobles,
whose privileges form so great a part of the laws of different countries?
I will not here inquire whether this traditional distinction between
nobles and commons be advantageous in a government, or necessary in a
monarchy; nor whether it be true that a nobility forms an intermediate
power in restraint of the excesses of the two extremes, and not
rather a caste which, in slavery to itself and to others, confines all
circulation of merit and hope to a very narrow circle, like those fertile
and pleasant oases scattered among the vast sand-deserts of Arabia; nor
whether, supposing it to be true that inequality is inevitable and useful
in society, it be also true that such inequality should subsist between
classes rather than individuals, and should remain with one part of the
body politic rather than circulate through the whole; whether it should
rather perpetuate itself than be subject to constant self-destruction and
renovation. I will confine myself to the punishments proper for nobles,
affirming that they should be the same for the greatest citizen as for
the least. Every distinction of honour or of riches presupposes, to be
legitimate, a prior state of equality, founded on the laws, which regard
all subjects as equally dependent on themselves. One must suppose the
men, who renounced their natural state of despotic independence, to have
said: ‘Let him who is more industrious than his fellows have greater
honours, and let his fame be greater among his successors; let him who
is more prosperous and honoured hope even to become more so, but let him
fear no less than other men to break those conditions by virtue of which
he is raised above them.’ True it is that such decrees did not emanate in
a convocation of the human race, but such decrees exist in the eternal
relations of things; they do not destroy the supposed advantages of a
nobility, though they prevent its abuses; and they make laws feared,
by closing every admission to impunity. And if any one shall say that
the same punishment inflicted upon a noble and upon a commoner is not
really the same, by reason of the diversity of their education, and of
the disgrace spread over an illustrious family, I will reply, that the
sensibility of the criminal is not the measure of punishment, but the
public injury, and that this is all the greater when committed by the
more highly favoured man; that equality of punishment can only be so when
considered extrinsically, being really different in each individual; and
that the disgrace of a family can be removed by public proofs of kindness
on the part of the sovereign towards the innocent family of the criminal.
And who is there but knows that formalities which strike the senses serve
as reasonings with the credulous and admiring populace?



CHAPTER XXVIII.

OF INJURIES AND OF HONOUR.


Injuries that are personal and affect a man’s honour—that is, the fair
share of favour that he has a right to expect from others—should be
punished with disgrace.

There is a remarkable contradiction between the civil laws, which set
so jealous and supreme a guard upon individual life and property, and
the laws of so-called _honour_, which set opinion above everything. This
word _honour_ is one of those that have served as the basis for long
and brilliant argumentations, without any fixed or permanent idea being
attached to it. How miserable is the condition of human minds, more
distinctly cognisant of the remotest and least important ideas about
the movements of the heavenly bodies, than of those near and important
moral notions, which are ever fluctuating and confused, according as the
winds of passion impel them and a well-guided ignorance receives and
transmits them! But the seeming paradox will vanish, if one considers,
that, as objects become confused when too near the eyes, so the too great
propinquity of moral ideas easily causes the numerous simple ideas which
compose them to become blended together, to the confusion of those clear
lines of demarcation demanded by the geometrical spirit, which would
fain measure exactly the phenomena of human sensibility. And the wonder
will vanish altogether from the impartial student of human affairs, who
will suspect that so great a moral machinery and so many restraints are
perchance not needed, in order to render men happy and secure.

This _honour_, then, is one of those complex ideas which are an
aggregate not only of simple ideas but of ideas no less complex than
themselves, and which in their various presentments to the mind now admit
and now omit some of their different component elements, only retaining
some few common ideas, just as in algebra several complex quantities
admit of a common divisor. To find this common divisor in the different
ideas that men form of _honour_, we must cast a rapid glance over the
first formation of communities.

The necessity of remedying the disorders caused by the physical despotism
of each man singly produced the first laws and the first magistrates;
this was the end and object of the institution of societies, and this
end has always been maintained, either in reality or appearance, at the
head of all codes, even of those that operated otherwise. But the closer
contact of men with one another and the progress of their knowledge
brought about an endless series of mutual actions and needs, which
ever lay beyond the foresight of the laws and below the actual power
of individuals. From this epoch began the despotism of opinion, which
afforded the only means for obtaining from others those benefits and
averting those evils, for which the laws failed to provide. It is this
opinion that is the trouble equally of the wise man and the fool; that
has raised the semblance of virtue to higher credit than virtue itself;
that even makes the rascal turn missionary, because he finds his own
interest therein. Hence the favour of men became not only useful but
necessary, if a man would not fall below the general level. Hence, not
only does the ambitious man seek after such favour as useful to himself,
and the vain man go begging for it as a proof of his merit, but the man
of honour also may be seen to require it as a necessity. This _honour_ is
a condition that very many men attach to their own existence. Born after
the formation of society, it could not be placed in the general deposit;
it is rather a momentary return to the state of nature, a momentary
withdrawal of one’s self from the dominion of those laws which, under the
circumstances, fail to afford the sufficient defence required of them.

Hence both in the state of extreme political liberty and in that of
extreme political subjection the ideas of honour disappear or get
perfectly confused with others. For in the former the despotism of the
laws renders the pursuit of the favour of others of no avail; and in
the latter state the despotism of men, by destroying civil existence,
reduces everybody to a precarious and temporary personality. Honour,
therefore, is one of the fundamental principles of those monarchies that
are a mitigated form of despotism, being to them what revolutions are to
despotic States, namely, a momentary return to the state of nature, and a
reminder to the chief ruler of the condition of primitive equality.



CHAPTER XXIX.

DUELS.


From this necessity of the favour of other people arose private duels,
which sprang up precisely in an anarchical state of the laws. It is said
they were unknown to antiquity, perhaps because the ancients did not
meet suspiciously armed in the temples, the theatres, or with friends;
perhaps because the duel was an ordinary and common sight, presented to
the people by gladiators, who were slaves or low people, and freemen
disdained to be thought and called private gladiators. In vain has it
been sought to extirpate the custom by edicts of death against any man
accepting a challenge, for it is founded on that which some men fear
more than death; since without the favour of his fellows the man of
honour foresees himself exposed either to become a merely solitary being,
a condition insufferable to a sociable man, or to become the butt of
insults and disgrace which, from their constant operation, prevail over
the fear of punishment. Why is it that the lower orders do not for the
most part fight duels like the great? Not only because they are disarmed,
but because the need of the favour of others is less general among the
people than among those who, in higher ranks, regard themselves with
greater suspicion and jealousy.

It is not useless to repeat what others have written, namely, that the
best method of preventing this crime is to punish the aggressor—in other
words, the man who gives rise to the duel—declaring him to be innocent
who without his own fault has been constrained to defend that which
existing laws do not assure to him, that is, opinion.



CHAPTER XXX.

THEFTS.


Thefts without violence should be punished by fine. He who enriches
himself at another’s expense ought to suffer at his own. But, as theft is
generally only the crime of wretchedness and despair, the crime of that
unhappy portion of mankind to whom the right of property (a terrible,
and perhaps not necessary right[67]) has left but a bare subsistence;
and as pecuniary penalties increase the number of criminals above the
number of crimes, depriving the innocent of their bread in order to give
it to the wicked, the fittest punishment will be that kind of servitude
which alone can be called just, namely, the temporary servitude of a
man’s labour and person for the compensation of society, the personal
and absolute dependence due from a man who has essayed to exercise
an unjust superiority over the social compact. But when the theft is
accompanied with violence, the punishment also should be a combination
of corporal and servile punishment. Some previous writers have shown the
evident abuse that arises from not distinguishing punishments for thefts
of violence from those for thefts of cunning, thus making an absurd
equation between a large sum of money and the life of a man. For they
are crimes of a different nature; and in politics, as in mathematics,
this axiom is most certain, that between heterogeneous quantities the
terms of difference are infinite; but it is never superfluous to repeat
what has hardly ever been put into practice. Political machinery more
than anything else retains the motion originally given to it, and is the
slowest to adapt itself to a fresh one.



CHAPTER XXXI.

SMUGGLING.


Smuggling is a real crime against the sovereign and the nation; but its
punishment should not be one of disgrace, because its commission incurs
no disgrace in public opinion.

But why does this crime never entail disgrace upon its author, seeing
that it is a theft against the prince, and consequently against the
nation? I answer, that offences which men do not consider can be
committed against themselves do not interest them enough to produce
public indignation against their perpetrator. Smuggling is an offence
of this character. Men in general, on whom remote consequences make
very feeble impressions, do not perceive the harm that smuggling can
do them, nay, often they enjoy a present advantage from it. They only
perceive the injury done to the sovereign; they are not interested,
therefore, in withdrawing their favour from a smuggler as much as they
are in doing so from a man who commits a theft in private life, who
forges a signature, or brings upon them other evils. The principle is
self-evident, that every sensitive being only interests himself in the
evils which he knows. This crime arises from the law itself; since the
benefit it promises increases with the increase of the import duty, and
therefore the temptation and the facility of committing it increases with
the circumference of territory to be guarded and the small size of the
prohibited wares. The penalty of losing both the prohibited goods, and
whatever effects are found with them, is most just; but its efficacy will
be greater in proportion as the import duty is lower, because men only
incur risks relative to the advantage derivable from the prosperous issue
of their undertaking.

But ought such a crime to be let go unpunished in the case of a man who
has no effects to lose? No: there are kinds of smuggling of so much
importance to the revenue (which is so essential and so difficult a part
of a good system of laws), that such a crime deserves a considerable
punishment, even imprisonment or servitude; but imprisonment and
servitude conformable to the nature of the crime itself. For example,
the prison of the tobacco-smuggler ought not to be the same as that of
the assassin or the thief; and the labours of the former, limited to the
work and service of the very treasury he wished to defraud, will be the
punishments most conformable to the nature of his crime.



CHAPTER XXXII.

OF DEBTORS.


The good faith of contracts and the security of commerce compel the
legislator to assure to creditors the persons of insolvent debtors. But
I think it important to distinguish the fraudulent from the innocent
bankrupt, the former of whom should receive the same punishment as that
assigned to false coiners, since it is no greater crime to falsify a
piece of coined money, the pledge of men’s mutual obligations, than
to falsify those obligations themselves. But the innocent bankrupt—he
who, after a searching inquiry, has proved before his judges that
the wickedness or misfortune of some one else, or the inevitable
vicissitudes of human prudence, have despoiled him of his substance—for
what barbarous reason ought such an one to be thrown into prison, and
deprived of the only poor benefit that remains to him, a barren liberty,
in order to suffer the agonies of the really guilty, and, in despair at
his ruined honesty, to repent perhaps of that innocence, by which he
lived peacefully under the protection of those laws that it was not in
his power not to offend against? Laws, too, dictated by the powerful
by reason of their rapacity, and endured by the feeble by reason of
that hope, which generally glimmers in the human heart, and leads us
to believe that unfavourable contingencies are reserved for others,
favourable ones for ourselves! Men left to their natural feelings love
cruel laws, however much, as subject to them themselves, it might be for
their individual interest that they should be mitigated; because their
fear of being injured by others is greater than their desire to inflict
injuries themselves.

To return to the innocent bankrupt. Granting that his obligation should
not be extinguishable by anything short of total payment; granting that
he should not be suffered to withdraw from it without the consent of the
parties interested, nor to transfer under the dominion of other laws his
industry, which should perforce be employed, under penalties, to enable
him to satisfy his creditors in proportion to his profits; what fair
pretext, I ask, can there be, such as the security of commerce or the
sacred right of property, to justify the deprivation of his liberty? Such
a deprivation is only of use, when it is sought to discover the secrets
of a supposed innocent bankrupt by the evils of servitude, a most unusual
circumstance where a rigorous inquiry is instituted. I believe it to be a
maxim in legislation, that the amount of political inconveniences varies
directly in proportion to the injury they do the public, and inversely in
proportion to the difficulty of their proof.

It would be possible to distinguish a case of fraud from a grave fault, a
grave fault from a light one, and this again from perfect innocence; then
to affix to the first the penalties due for crimes of falsification; to
the second lesser penalties, but with the loss of personal liberty; and,
reserving for the last degree the free choice of the means of recovery,
to deprive the third degree of such liberty, whilst leaving it to a man’s
creditors. But the distinction between grave and light should be fixed by
the blind impartiality of the laws, not by the dangerous and arbitrary
wisdom of a judge. The fixings of limits are as necessary in politics as
in mathematics, equally in the measurement of the public welfare as in
the measurement of magnitudes.[68]

How easily might the farseeing legislator hinder a large part of culpable
bankruptcy, and relieve the misfortunes of the industrious and innocent!
The public and open registration of all contracts; freedom to every
citizen to consult them in well-kept documents; a public bank formed by
wisely-apportioned taxes upon prosperous commerce, and intended for the
timely relief of any unfortunate and innocent member of the company;—such
measures would have no real drawback and might produce numberless
advantages. But easy, simple, and great laws, which await but the signal
of the legislator, in order to scatter riches and strength through a
nation—laws which would be celebrated from generation to generation in
hymns of gratitude—are either the least thought of or the least desired
of all. An uneasy and petty spirit, the timid prudence of the present
moment, and a circumspect stiffness against innovations, master the
feelings of those who govern the complex actions of mankind.



CHAPTER XXXIII.

OF THE PUBLIC TRANQUILLITY.


Lastly, among the crimes of the third kind are especially those which
disturb the public peace and civic tranquillity; such as noises and riots
in the public streets, which were made for the convenience of men and
traffic, or fanatical sermons that excite the easily roused passions of
the curious multitude. For their passions gather force from the number
of hearers, and more from a certain obscure and mysterious enthusiasm,
than from clear and quiet reasoning, which never has any influence over a
large mass of men.

The lighting of a city by night at the public expense; the distribution
of guards in the different quarters; simple moral discourses on
religion, but only in the silent and holy quiet of churches, protected
by public authority; speeches on behalf of private and public interests
in national assemblies, parliaments, or wherever else the majesty of
sovereignty resides—all these are efficacious means for preventing the
dangerous condensation of popular passions. These means are a principal
branch of that magisterial vigilance which the French call _police_;
but if this is exercised by arbitrary laws, not laid down in a code of
general circulation, a door is opened to tyranny, which ever surrounds
all the boundaries of political liberty. I find no exception to this
general axiom, that ‘Every citizen ought to know when his actions
are guilty or innocent.’ If censors, and arbitrary magistrates in
general, are necessary in any government, it is due to the weakness
of its constitution, and is foreign to the nature of a well organised
government. More victims have been sacrificed to obscure tyranny by the
uncertainty of their lot than by public and formal cruelty, for the
latter revolts men’s minds more than it abases them. The true tyrant
always begins by mastering opinion, the precursor of courage; for the
latter can only show itself in the clear light of truth, in the fire of
passion, or in ignorance of danger.



CHAPTER XXXIV.

OF POLITICAL IDLENESS.


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 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.



CHAPTER XXXV.

SUICIDE AND ABSENCE.


Suicide is a crime to which a punishment properly so called seems
inadmissible, since it can only fall upon the innocent or else upon a
cold and insensible body. If the latter mode of punishing the crime
makes no more impression on the living than would be made by inflicting
violence on a statue, the other mode is unjust and tyrannical, inasmuch
as political freedom necessarily presupposes the purely personal
nature of punishment. Men love life only too much, and everything
that surrounds them confirms them in this love. The seductive image of
pleasure, and hope, that sweetest illusion of mortals, for the sake of
which they swallow large draughts of evil mixed with a few drops of
contentment, are too attractive, for one ever to fear, that the necessary
impunity of such a crime should exercise any general influence. He who
fears pain, obeys the laws; but death puts an end in the body to all the
sources of pain. What, then, will be the motive which shall restrain the
desperate hand of the suicide?

Whoever kills himself does a lesser evil to society than he who for
ever leaves the boundaries of his country, for whilst the former leaves
therein all his substance, the latter transports himself together
with part of his property. Nay, if the power of a community consists
in the number of its members, the man who withdraws himself to join
a neighbouring nation does twice as great an injury as he who simply
by death deprives society of his existence. The question, therefore,
reduces itself to this: whether the leaving to each member of a nation
a perpetual liberty to absent himself from it be advantageous or
detrimental.

No law ought to be promulgated that has not force to back it, or that the
nature of things deprives of validity; and as minds are ruled by opinion,
which itself follows the slow and indirect impressions of legislation,
whilst it resists those that are direct and violent, the most salutary
laws become infected with the contempt felt for useless laws, and are
regarded rather as obstacles to be surmounted than as the deposit of the
public welfare.

Moreover, if, as was said, our feelings are limited in quantity, the
greater respect men may have for things outside the laws, the less will
remain to them for the laws themselves. From this principle the wise
administrator of the public happiness may draw some useful consequences,
the exposition of which would lead me too far from my subject, which is
to demonstrate the uselessness of making a prison of the State. A law
with such an object is useless, because, unless inaccessible rocks or
an unnavigable sea separate a country from all others, how will it be
possible to close all the points of its circumference and keep guard over
the guardians themselves? A man who transports everything he has with
him, when he has done so cannot be punished. Such a crime once committed
can no longer be punished, and to punish it beforehand would be to punish
men’s wills, not their actions, to exercise command over their intention,
the freest part of human nature, and altogether independent of the
control of human laws. The punishment of an absent man in the property he
leaves behind him would ruin all international commerce, to say nothing
of the facility of collusion, which would be unavoidable, except by a
tyrannical control of contracts. And his punishment on his return, as a
criminal, would prevent the reparation of the evil done to society, by
making all removals perpetual. The very prohibition to leave a country
augments people’s desire to do so, and is a warning to foreigners not to
enter it.

What should we think of a government that has no other means than fear
for keeping men in a country, to which they are naturally attached from
the earliest impressions of their infancy? The surest way of keeping them
in their country is to augment the relative welfare of each of them. As
every effort should be employed to turn the balance of commerce in our
own favour, so it is the greatest interest of a sovereign and a nation,
that the sum of happiness, compared with that of neighbouring nations,
should be greater at home than elsewhere. The pleasures of luxury are
not the principal elements in this happiness, however much they may be
a necessary remedy to that inequality which increases with a country’s
progress, and a check upon the tendency of wealth to accumulate in the
hands of a single ruler.[69]

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.

It is, then, proved that the law which imprisons subjects in their own
country is useless and unjust. The punishment, therefore, of suicide is
equally so; and consequently, although it is a fault punishable by God,
for He alone can punish after death, it is not a crime in the eyes of
men, for the punishment they inflict, instead of falling on the criminal
himself, falls on his family. If anyone objects, that such a punishment
can nevertheless draw a man back from his determination to kill himself,
I reply, that he who calmly renounces the advantages of life, who hates
his existence here below to such an extent as to prefer to it an eternity
of misery, is not likely to be moved by the less efficacious and more
remote consideration of his children or his relations.



CHAPTER XXXVI.

CRIMES OF DIFFICULT PROOF.


There are some crimes which, are at the same time frequent in society and
yet difficult to prove, as adultery, pederasty, infanticide.

Adultery is a crime which, politically considered, derives its force and
direction from two causes, namely, from the variable laws in force among
mankind, and from that strongest of all attractions which draws one sex
towards the other.[70]

Had I to address nations still destitute of the light of religion, I
would say that there is yet another considerable difference between
adultery and other crimes. For it springs from the abuse of a constant
and universal human impulse, an impulse anterior to, nay, the cause of
the institution of society; whereas other crimes, destructive of society,
derive their origin rather from momentary passions than from a natural
impulse. To anyone cognisant of history and his kind, such an impulse
will seem to be equivalent in the same climate to a constant quantity;
and if this be so, those laws and customs which seek to diminish the
sum-total will be useless or dangerous, because their effect will be to
burthen one half of humanity with its own needs and those of others;
but those laws, on the contrary, will be the wisest, which following,
so to speak, the gentle inclination of the plain, divide the total
amount, causing it to ramify into so many equal and small portions,
that aridity or overflowing are equally prevented everywhere. Conjugal
fidelity is always proportioned to the number and to the freedom of
marriages. Where marriages are governed by hereditary prejudices, or
bound or loosened by parental power, there the chains are broken by
secret intrigue, in despite of ordinary morality, which, whilst conniving
at the causes of the offence, makes it its duty to declaim against the
results. But there is no need of such reflections for the man who,
living in the light of true religion, has higher motives to correct the
force of natural effects. Such a crime is of so instantaneous and secret
commission, so concealed by the very veil the laws have drawn round it
(a veil necessary, indeed, but fragile, and one that enhances, instead
of diminishing, the value of the desired object), the occasions for it
are so easy, and the consequences so doubtful, that the legislator has
it more in his power to prevent than to punish it. As a general rule,
in every crime which by its nature must most frequently go unpunished,
the penalty attached to it becomes an incentive. It is a quality of our
imagination, that difficulties, if they are not insurmountable nor too
difficult, relatively to the mental energy of the particular person,
excite the imagination more vividly, and place the object desired in
larger perspective; for they serve as it were as so many barriers to
prevent an erratic and flighty fancy from quitting hold of its object;
and, while they compel the imagination to consider the latter in all its
bearings, it attaches itself more closely to the pleasant side, to which
our mind most naturally inclines, than to the painful side, which it
places at a distance.

Pederasty, so severely punished by the laws, and so readily subjected
to the tortures that triumph over innocence, is founded less on the
necessities of man, when living in a state of isolation and freedom,
than on his passions when living in a state of society and slavery. It
derives its force not so much from satiety of pleasure as from the system
of education now in vogue, which, beginning by making men useless to
themselves in order to make them useful to others, causes, by its too
strict seclusion, a waste of all vigorous development, and accelerates
the approach of old age.

Infanticide equally is the result of the unavoidable dilemma in which
a woman is placed who from weakness or by violence has fallen. Finding
herself placed between the alternative of infamy on the one side, and
the death of a being insentient of its pains on the other, how can she
fail to prefer the latter to the infallible misery awaiting both herself
and her unhappy offspring? The best way to prevent this crime would be
to give efficient legal protection to weakness against tyranny, which
exaggerates those vices that cannot be hidden by the cloak of virtue.

I do not pretend to diminish the just wrath these crimes deserve; but, in
indicating their sources, I think myself justified in drawing one general
conclusion, and that is, that no punishment for a crime can be called
exactly just—that is, necessary—so long as the law has not adopted the
best possible means, in the circumstances of a country, to prevent the
crimes it punishes.



CHAPTER XXXVII.

OF A PARTICULAR KIND OF CRIME.


The reader of this treatise will perceive that I have omitted all
reference to a certain class of crime, which has deluged Europe with
human blood; a crime which raised those fatal piles, where living human
bodies served as food for the flames, and where the blind multitude
sought a pleasant spectacle and a sweet harmony from the low dull groans,
emitted by wretched sufferers from volumes of black smoke, the smoke
of human limbs, whilst their bones and still palpitating entrails were
scorched and consumed by the flames. But reasonable men will see that
the place, the age, and the subject suffer me not to inquire into the
nature of such a crime. It would be too long and remote from my subject
to show, how a perfect uniformity of thought ought, contrary to the
practice of many countries, to be a necessity in a State; how opinions,
which only differ by the most subtle and imperceptible degrees, and are
altogether beyond the reach of human intelligence, can yet convulse
society, when one of them is not legally authorised in preference to the
others; and how the nature of opinions is such, that, whilst some become
clearer by virtue of their conflict and opposition, (those that are true
floating and surviving, but those that are false sinking to oblivion,)
others again, with no inherent self-support, require to be clothed with
authority and power. Too long would it be to prove, that howsoever
hateful may seem the government of force over human minds, with no other
triumphs to boast of but dissimulation and debasement, and howsoever
contrary it may seem to the spirit of gentleness and fraternity,
commanded alike by reason and the authority we most venerate, it is yet
necessary and indispensable. All this should be taken as clearly proved
and conformable to the true interests of humanity, if there be anyone
who, with recognised authority, acts accordingly. I speak only of crimes
that spring from the nature of humanity and the social compact; not of
sins, of which even the temporal punishments should be regulated by other
principles than those of a narrow philosophy.



CHAPTER XXXVIII.

FALSE IDEAS OF UTILITY.


False ideas of utility entertained by legislators are one source of
errors and injustice. It is a false idea of utility which thinks more of
the inconvenience of individuals than of the general inconvenience; which
tyrannises over men’s feelings, instead of arousing them into action;
which says to Reason, ‘Be thou subject.’ It is a false idea of utility
which sacrifices a thousand real advantages for one imaginary or trifling
drawback; which would deprive men of the use of fire because it burns
or of water because it drowns; and whose only remedy for evils is the
entire destruction of their causes. Of such a kind are laws prohibiting
the wearing of arms, for they only disarm those who are not inclined nor
resolved to commit crimes, whilst those who have the courage to violate
the most sacred laws of humanity, the most important in the law-code,
are little likely to be induced to respect those lesser and purely
arbitrary laws, which are easier to contravene with impunity; and the
strict observance of which would imply the destruction of all personal
liberty, (that liberty dearest to the enlightened legislator and to men
generally,) subjecting the innocent to vexations which only the guilty
deserve. These laws, whilst they make still worse the position of the
assailed, improve that of their assailants; they increase rather than
diminish the number of homicides, owing to the greater confidence with
which an unarmed man may be attacked than an armed one. They are not so
much preventive of crimes as fearful of them, due as they are to the
excitement roused by particular facts, not to any reasoned consideration
of the advantages or disadvantages of a general decree. Again, it is
a false idea of utility, which would seek to impart to a multitude of
intelligent beings the same symmetry and order that brute and inanimate
matter admits of; which neglects present motives, the only constantly
powerful influences with the generality of men, to give force to remote
and future ones, the impression of which is very brief and feeble,
unless a force of imagination beyond what is usual makes up, by its
magnifying power, for the object’s remoteness. Lastly, it is a false idea
of utility, which, sacrificing the thing to the name, distinguishes the
public good from that of every individual member of the public. There is
this difference between the state of society and the state of nature,
that in the latter a savage only commits injuries against others with a
view to benefit himself, whilst in the former state men are sometimes
moved by bad laws to injure others without any corresponding benefit
to themselves. The tyrant casts fear and dread into the minds of his
slaves, but they return by repercussion with all the greater force to
torment his own breast. The more confined fear is in its range, so much
the less dangerous is it to him who makes it the instrument of his
happiness; but the more public it is and the larger the number of people
it agitates, so much the more likely is it that there will be some rash,
some desperate, or some clever and bold man who will try to make use of
others for his own purpose, by raising in them hopes, that are all the
more pleasant and seductive as the risk incurred in them is spread over
a greater number, and as the value attached by the wretched to their
existence diminishes in proportion to their misery. This is the reason
why offences ever give rise to fresh ones: that hatred is a feeling much
more durable than love, inasmuch as it derives its force from the very
cause that weakens the latter, namely, from the continuance of the acts
that produce it.



CHAPTER XXXIX.

OF FAMILY SPIRIT.


Such fatal and legalised iniquities as have been referred to have been
approved of by even the wisest men and practised by even the freest
republics, owing to their having regarded society rather as an aggregate
of families than as one of individuals. Suppose there to be 100,000
individuals, or 20,000 families, of five persons each, including its
representative head: if the association is constituted by families, it
will consist of 20,000 men and 80,000 slaves; if it be an association
of individuals, it will consist of 100,000 citizens, and not a single
slave. In the first case there will be a republic, formed of 20,000
little sovereignties; in the second the republican spirit will breathe,
not only in the market-places and meetings of the people, but also within
the domestic walls, wherein lies so great a part of human happiness or
misery. In the first case, also, as laws and customs are the result
of the habitual sentiments of the members of the republic—that is, of
the heads of families—the monarchical spirit will gradually introduce
itself, and its effects will only be checked by the conflicting interests
of individuals, not by a feeling that breathes liberty and equality.
Family spirit is a spirit of detail and confined to facts of trifling
importance. But the spirit which regulates communities is master of
general principles, overlooks the totality of facts, and combines them
into kinds and classes, of importance to the welfare of the greater
number. In the community of families sons remain in the power of the
head of the family so long as he lives, and are obliged to look forward
to his death for an existence dependent on the laws alone. Accustomed
to submission and fear in the freshest and most vigorous time of life,
when their feelings are less modified by that timidity, arising from
experience, which men call moderation, how shall they withstand those
obstacles in the way of virtue which vice ever opposes, in that feeble
and failing period of life when despair of living to see the fruit of
their labours hinders them from making vigorous changes?

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 sons—that is, the largest
and most useful part of a nation—are 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.

Such contradictions between the laws of a family and the fundamental
laws of a State are a fertile source of other contradictions between
public and private morality, giving rise consequently to a perpetual
conflict in every individual mind. For whilst private morality inspires
fear and subjection, public morality teaches courage and freedom; whilst
the former inculcates the restriction of well-doing to a small number
of persons indiscriminately, the latter inculcates its extension to all
classes of men; and whilst the one enjoins the constant sacrifice of self
to a vain idol, called ‘the good of the family’ (which is frequently not
the good of any single member that composes it), the other teaches men to
benefit themselves, provided they break not the laws, and incites them,
by the reward of enthusiasm, which is the precursor of their action, to
sacrifice themselves to the good of their country. Such contradictions
make men scorn to follow virtue, which they find so complicated and
confused, and at that distance from them, which objects, both moral
and physical, derive from their obscurity. How often it happens that
a man, in reflecting on his past actions, is astonished at finding
himself dishonest. The larger society grows, the smaller fraction of the
whole does each member of it become, and the more is the feeling of the
commonwealth diminished, unless care be taken by the laws to reinforce
it. Societies, like human bodies, have their circumscribed limits,
extension beyond which involves inevitably a disturbance of their
economy. The size of a State ought apparently to vary inversely with the
sensibility of its component parts; otherwise, if both increase together,
good laws will find, in the very benefit they have effected, an obstacle
to the prevention of crimes. Too large a republic can only save itself
from despotism by a process of subdivision, and a union of the parts into
so many federative republics. But how effect this, save by a despotic
dictator with the courage of Sylla and as much genius for construction
as he had for destruction? If such a man be ambitious, the glory of all
the ages awaits him; and if he be a philosopher, the blessings of his
fellow-citizens will console him for the loss of his authority, even
should he not become indifferent to their ingratitude. In proportion as
the feelings which unite us to our own nation are weakened, do those for
the objects immediately around us gain in strength; and it is for this
reason that under the severest despotism the strongest friendships are to
be found, and that the family virtues, ever of an exalted character, are
either the most common or the only ones. It is evident, therefore, how
limited have been the views of the great majority of legislators.



CHAPTER XL.

OF THE TREASURY.


There was a time when nearly all penalties were pecuniary. Men’s crimes
were the prince’s 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 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 criminal’s
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 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 man’s
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_ one—that 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 cases—is 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.



CHAPTER XLI.

THE PREVENTION OF CRIMES—OF KNOWLEDGE—MAGISTRATES—REWARDS—EDUCATION.


It is better to prevent crimes than to punish them. This is the chief
aim of every good system of legislation, which is the art of leading men
to the greatest possible happiness or to the least possible misery,
according to calculation of all the goods and evils of life. But the
means hitherto employed for this end are for the most part false and
contrary to the end proposed. It is impossible to reduce the turbulent
activity of men to a geometrical harmony without any irregularity
or confusion. As the constant and most simple laws of nature do not
prevent aberrations in the movements of the planets, so, in the infinite
and contradictory attractions of pleasure and pain, disturbances and
disorder cannot be prevented by human laws. Yet this is the chimera
that narrow-minded men pursue, when they have power in their hands. To
prohibit a number of indifferent acts is not to prevent the crimes that
may arise from them, but it is to create new ones from them; it is to
give capricious definitions of virtue and vice which are proclaimed as
eternal and immutable in their nature. To what should we be reduced if
everything had to be forbidden us which might tempt us to a crime? It
would be necessary to deprive a man of the use of his senses. For one
motive that drives men to commit a real crime there are a thousand that
drive them to the commission of those indifferent acts which are called
crimes by bad laws; and if the likelihood of crimes is proportioned to
the number of motives to commit them, an increase of the field of crimes
is an increase of the likelihood of their commission. The majority
of laws are nothing but privileges, or a tribute paid by all to the
convenience of some few.

Would you prevent crimes, then cause the laws to be clear and simple,
bring the whole force of a nation to bear on their defence, and suffer no
part of it to be busied in overthrowing them. Make the laws to favour not
so much classes of men as men themselves. Cause men to fear the laws and
the laws alone. Salutary is the fear of the law, but fatal and fertile in
crime is the fear of one man of another. Men as slaves are more sensual,
more immoral, more cruel than free men; and, whilst the latter give their
minds to the sciences or to the interests of their country, setting
great objects before them as their model, the former, contented with the
passing day, seek in the excitement of libertinage a distraction from
the nothingness of their existence, and, accustomed to an uncertainty
of result in everything, they look upon the result of their crimes
as uncertain too, and so decide in favour of the passion that tempts
them. If uncertainty of the laws affects a nation, rendered indolent
by its climate, its indolence and stupidity is thereby maintained and
increased; if it affects a nation, which though fond of pleasure is
also full of energy, it wastes that energy in a number of petty cabals
and intrigues, which spread distrust in every heart, and make treachery
and dissimulation the foundation of prudence; if, again, it affects a
courageous and brave nation, the uncertainty is ultimately destroyed,
after many oscillations from liberty to servitude, and from servitude
back again to liberty.

Would you prevent crimes, then see that enlightenment accompanies
liberty. The evils that flow from knowledge are in inverse ratio to its
diffusion; the benefits directly proportioned to it. A bold impostor, who
is never a commonplace man, is adored by an ignorant people, despised
by an enlightened one. Knowledge, by facilitating comparisons between
objects and multiplying men’s points of view, brings many different
notions into contrast, causing them to modify one another, all the
more easily as the same views and the same difficulties are observed
in others. In the face of a widely diffused national enlightenment the
calumnies of ignorance are silent, and authority, disarmed of pretexts
for its manifestation, trembles; whilst the rigorous force of the laws
remains unshaken, no one of education having any dislike to the clear and
useful public compacts which secure the common safety, when he compares
the trifling and useless liberty sacrificed by himself with the sum-total
of all the liberties sacrificed by others, who without the laws might
have been hostile to himself. Whoever has a sensitive soul, when he
contemplates a code of well-made laws, and finds that he has only lost
the pernicious liberty of injuring others, will feel himself constrained
to bless the throne and the monarch that sits upon it.

It is not true that the sciences have always been injurious to mankind;
when they were so, it was an inevitable evil. The multiplication of
the human race over the face of the earth introduced war, the ruder
arts, and the first laws, mere temporary agreements which perished with
the necessity that gave rise to them. This was mankind’s primitive
philosophy, the few elements of which were just, because the indolence
and slight wisdom of their framers preserved them from error. But with
the multiplication of men there went ever a multiplication of their
wants. Stronger and more lasting impressions were, therefore, needed,
in order to turn them back from repeated lapses to that primitive state
of disunion which each return to it rendered worse. Those primitive
delusions, therefore, which peopled the earth with false divinities and
created an invisible universe that governed our own, conferred a great
benefit—I mean a great political benefit—upon humanity. Those men were
benefactors of their kind, who dared to deceive them and drag them,
docile and ignorant, to worship at the altars. By presenting to them
objects that lay beyond the scope of sense and fled from their grasp
the nearer they seemed to approach them—never despised, because never
well understood—they concentrated their divided passions upon a single
object of supreme interest to them. These were the first steps of all
the nations that formed themselves out of savage tribes; this was the
epoch when larger communities were formed, and such was their necessary
and perhaps their only bond. I say nothing of that chosen people of God,
for whom the most extraordinary miracles and the most signal favours were
a substitute for human policy. But as it is the quality of error to fall
into infinite subdivisions, so the sciences that grew out of it made
of mankind a blind fanatical multitude, which, shut up within a close
labyrinth, collides together in such confusion, that some sensitive and
philosophical minds have regretted to this day the ancient savage state.
That is the first epoch in which the sciences or rather opinions are
injurious.

The second epoch of history consists in the hard and terrible transition
from errors to truth, from the darkness of ignorance to the light. The
great clash between the errors which are serviceable to a few men of
power and the truths which are serviceable to the weak and the many, and
the contact and fermentation of the passions at such a period aroused,
are a source of infinite evils to unhappy humanity. Whoever ponders on
the different histories of the world, which after certain intervals
of time are so much alike in their principal episodes, will therein
frequently observe the sacrifice of a whole generation to the welfare
of succeeding ones, in the painful but necessary transition from the
darkness of ignorance to the light of philosophy, and from despotism to
freedom, which result from the sacrifice. But when truth, whose progress
at first is slow and afterwards rapid (after men’s minds have calmed down
and the fire is quenched that purged a nation of the evils it suffered),
sits as the companion of kings upon the throne, and is reverenced and
worshipped in the parliaments of free governments, who will ever dare
assert that the light which enlightens the people is more injurious than
darkness, and that acknowledging the true and simple relations of things
is pernicious to mankind?

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 men’s 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 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.

Another way of preventing crimes is to interest the magistrates who carry
out the laws in seeking rather to preserve than to corrupt them. The
greater the number of men who compose the magistracy, the less danger
will there be of their exercising any undue power over the laws; for
venality is more difficult among men who are under the close observation
of one another, and their inducement to increase their individual
authority diminishes in proportion to the smallness of the share of it
that can fall to each of them, especially when they compare it with
the risk of the attempt. If the sovereign accustoms his subjects, by
formalities and pomp, by severe edicts, and by refusal to hear the
grievances, whether just or unjust, of the man who thinks himself
oppressed, to fear rather the magistrates than the laws, it will be more
to the profit of the magistrates than to the gain of private and public
security.

Another way to prevent crimes is to reward virtue. On this head I notice
a general silence in the laws of all nations to this day. If prizes
offered by academies to the discoverers of useful truths have caused the
multiplication of knowledge and of good books, why should not virtuous
actions also be multiplied, by prizes distributed from the munificence of
the sovereign? The money of honour ever remains unexhausted and fruitful
in the hands of the legislator who wisely distributes it.

Lastly, the surest but most difficult means of preventing crimes is
to improve education—a subject too vast for present discussion, and
lying beyond the limits of my treatise; a subject, I will also say,
too intimately connected with the nature of government for it ever to
be aught but a barren field, only cultivated here and there by a few
philosophers, down to the remotest ages of public prosperity. A great
man, who enlightens the humanity that persecutes him, has shown in detail
the chief educational maxims of real utility to mankind; namely, that it
consists less in a barren multiplicity of subjects than in their choice
selection; in substituting originals for copies in the moral as in the
physical phenomena presented by chance or intention to the fresh minds of
youth; in inclining them to virtue by the easy path of feeling; and in
deterring them from evil by the sure path of necessity and disadvantage,
not by the uncertain method of command, which never obtains more than a
simulated and transitory obedience.



CHAPTER XLII.

CONCLUSION.


From all that has gone before a general theorem may be deduced, of great
utility, though little comformable to custom, that common lawgiver of
nations. The theorem is this: ‘In order that every punishment may not
be an act of violence, committed by one man or by many against a single
individual, it ought to be above all things public, speedy, necessary,
the least possible in the given circumstances, proportioned to its crime,
dictated by the laws.’



FOOTNOTES


[64] Note that the word Right is not opposed to the word Force; but the
former is rather a modification of the latter; that is, the modification
most advantageous to the greater number. And by justice I mean nothing
else than the chain which is necessary for holding together private
interests and preventing their breaking away into the original state of
insociability.

One must be careful not to attach to this word Justice the idea of
anything real, as of a physical force or an independent entity; it is
only a human mode of thinking, a mode that has unbounded influence over
each one’s happiness. Still less do I mean that other kind of justice
that has emanated from God, and has its immediate connection with the
penalties and rewards of a future life.

[65] If every individual is bound to society, society is no less bound to
every individual by a contract which is necessarily obligatory on both
sides. This obligation, which descends from the throne to the cabin,
which binds equally the greatest and most miserable of men, means nothing
but that it is the interest of all men that covenants advantageous to the
greater number should be observed.

The word ‘obligation’ is one of those which are much more frequent in
ethics than in any other science, and which are the abbreviated symbol
of a train of reasoning rather than of a single idea. Seek for an idea
corresponding to the word ‘obligation’ and you will seek in vain; reason
about it, and you will both understand yourself and be understood by
others.

[66] According to the criminalists the greater the atrocity of the
crime the greater the credibility of the witness. Look at the iron
maxim dictated by the most cruel stupidity: _In atrocissimis leviores
conjecture sufficiunt, et licet judici jura transgredi._ Translate this
into common language, and Europeans will see one of the very many and
equally senseless rules to which almost without knowing it they are
subject: _In the most atrocious crimes_ (that is, in the least probable)
_the slightest conjectures are enough, and the judge may legitimately
exceed the law_. Absurd legal practices are often the result of fear,
which is the principal source of all human contradictions. Legislators
(who are really only lawyers, authorised by chance to decide about
everything, and to become from interested and venal writers arbiters
and legislators about the fortunes of men), alarmed by the condemnation
of some innocent person, have loaded jurisprudence with superfluous
formalities and exceptions, the exact observance of which would cause
anarchy to sit with impunity on the throne of justice. In their fright at
some crimes of an atrocious nature and difficult to prove, they thought
themselves under the necessity of getting over the very formalities
established by themselves; and so, now with despotic impatience, now with
feminine timidity, they have transformed grave trials into a kind of
play, in which hazard and subterfuge act the principal part.

[67] In the original manuscript and the first edition there was no _not_.
It is unknown how it got in, or whether Beccaria was aware of it. Cantù,
_Beccaria_, 127.

[68] Commerce and property are not themselves an end of the social
compact, but they may be a means to reach that end. To expose all
the members of society to evils, for the production of which so many
circumstances work together, would be to subordinate ends to means—a
paralogism of all the sciences, but especially of political science,
and one into which I fell in the first editions, where I said that the
innocent bankrupt ought to be kept guarded in pledge of his debts or
employed as a slave to labour for his creditors. I am ashamed of having
so written. I have been accused of irreligion without deserving to be,
and I have been accused of sedition without deserving to be. I offended
the rights of humanity, and no one reproached me for it!

[69] Where a country’s boundaries increase at a greater rate than its
population, there luxury favours despotism, firstly, because scarcity of
men means less industry, and less industry means a greater dependence
of poverty upon wealth, and greater difficulty and less dread of a
combination of the oppressed against their oppressors; secondly, because
the flatteries, the services, the distinctions, the submission, which
cause the difference between the strong man and the feeble to be all the
more felt, are more easily obtained from few men than from many, since
men are more independent the less subject they are to observation, and
are the less subject to observation the more numerous they are. But
where the population increases at a faster rate than the boundaries are
enlarged, luxury is opposed to despotism, because it gives life to men’s
industry and activity, and the necessity of the poor man offers too
many pleasures and comforts to the rich man for the pleasures of pure
ostentation, which increase the idea of dependence, to have the greater
place. Hence it is observable that in large, weak, and depopulated
States, unless there are counteracting causes, the luxury of ostentation
prevails over the luxury of comfort; but in populous rather than large
States the luxury of comfort always causes the diminution of that of
ostentation.

[70] This attraction resembles in many points that of gravitation, which
moves the universe, because, like it, it diminishes with distance; and if
the one force controls all the movements of physical bodies, the other
controls those of the mind during the continuance of its sway. But they
differ in this, that, whilst gravitation is counterbalanced by obstacles,
the other for the most part gains force and strength from the increase of
the very obstacles opposed to it.

    LONDON: PRINTED BY
    SPOTTISWOODE AND CO., NEW-STREET SQUARE
    AND PARLIAMENT STREET





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