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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:

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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 Paleys 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.
  • ONE:CHAPTER XIX. THE PROMPTNESS OF PUNISHMENTS.CHAPTER XXX. THEFTS. TWO: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.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.

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  • ONE:There is an apparent discrepancy in Beccarias 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[39] 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. TWO: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[7] this America, and we are their disciples because we are the disciples of reason, &c.

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  • ONE: TWO:CHAPTER IX. SECRET ACCUSATIONS.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.

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  • ONE:Some crimes are injuries to a mans person, others to his property, and the former should certainly be punished by corporal punishments. TWO:If pleasure and pain are the motors of sensitive beings, if the invisible lawgiver of humanity has decreed rewards and punishments as one of the motives to impel men to even their noblest endeavours, the inexact distribution of these motives will give rise to that contradiction, as little noticed as it is of common occurrence, namely, that the laws punish crimes which are entirely of their own creation. If an equal penalty is attached to two crimes of unequal injury to society, the greater crime of the two, if it promise a greater advantage than the other, will have no stronger motive in restraint of its perpetration.[197] Whoever, for example, sees the same punishment of death decreed for the man who kills a pheasant and the man who slays his fellow or falsifies an important document, will draw no distinction between such crimes; and thus moral sentiments, the product only of many ages and of much bloodshed, the slowest and most difficult attainment of the human mind, dependent, it has been thought, on the aid of the most sublime motives and on a parade of the gravest formalities, will be destroyed and lost.

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THREE: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?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 mankinds 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 benefitI mean a great political benefitupon 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 themnever despised, because never well understoodthey concentrated their divided passions upon a single object[247] 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.
FORE:

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FORE: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 Voltaires commentary; but just as Morellets 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.

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FORE:Some crimes are injuries to a mans person, others to his property, and the former should certainly be punished by corporal punishments.

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THREE: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[80] committed by criminals who have been punished already; that for one chance of a mans 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?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.

THREE: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 worlds 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[28] 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.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[211] 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 ones self from the dominion of those laws which, under the circumstances, fail to afford the sufficient defence required of them.
FORE:
FORE: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.,[93] 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?CHAPTER V. OBSCURITY OF THE LAWS.
FORE: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[56] 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.
THREE: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.

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THREE: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[74] 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.
FORE: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,[64] 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.

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FORE: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[115] that he does not admit them as pre-existent to the formation of the compact itself.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[131] 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?

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FORE: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 criminals 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 discretionthat is, on the capriceof the magistrate.

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THREE: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 Bacons 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.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[164] 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[165] 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 mens minds just as musicians do their instruments.

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THREE: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 Beccarias work appeared, the Republic of Venice was occupied in a violent contest touching the Inquisitorial Council of Ten; and imagining that Beccarias remarks about secret accusations had been directed against the procedure of their famous[16] 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.

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THREE: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[38] 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.

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THREE: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.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 countrys progress, and a check upon the tendency of wealth to accumulate in the hands of a single ruler.[69]

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PREFACE.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. 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. 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.
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