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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 peoples 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.

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CHAPTER XVII. BANISHMENT AND CONFISCATIONS.DAlembert, 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[6] 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.
 
JIKAL
ONE:There was not an anomaly in our old criminal practice which was not based on this theorya 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 Edens 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.
ONE: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[9] 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]
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TWO:PREFACE.

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FORE:

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FORE: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.As a matter of fact the law affords a very clear[81] 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.

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FORE:Whoever, therefore, shall wish to honour me with his criticisms, I would have begin with a thorough comprehension of the purpose of my worka purpose which, so far from diminishing legitimate authority, will serve to increase it, if opinion can effect more over mens 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.

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FORE: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.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 mans 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[219] of the public welfare as in the measurement of magnitudes.[68]

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FORE:CHAPTER XXXVIII. FALSE IDEAS OF UTILITY.

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FORE:CHAPTER XX. CERTAINTY OF PUNISHMENTSPARDONS.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.

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THREE: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.Ramsay was so far right, that whether a revolution was the only hope for theories like Beccarias or[21] 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 Beccarias 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 Ramsays fears at the time were more reasonable than the hopes of Beccaria.
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THREE: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 anothers 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[177] 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 mans 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 ones disposal, save in that of necessity alone, which, with its iron sceptre, rules the universe.
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TWO: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.
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The aim of punishment is not to torment sensitive beings.CHAPTER XIII. PROSECUTIONS AND PRESCRIPTIONS.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[178] 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. 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.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[10] 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.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 itselfthis is the political dogma[203] 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.
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