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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for life, with labour and an annual whipping on the place of the crime, was dreaded more than death, which it superseded as a punishment.In the third place, there is the discharge from prison; and truly, if the prevention of crime be a main object of society, it is just when a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?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[245] courageous and brave nation, the uncertainty is ultimately destroyed, after many oscillations from liberty to servitude, and from servitude back again to liberty.
ONE: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.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. THREE:[27]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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TWO: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.

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TWO: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[129] 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 despots 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.
FORE:

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FORE: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 menthese 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[119] 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 miserablenamely, uncertainty;these ought to startle those rulers whose function it is to guide the opinion of mens minds.

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FORE: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?CHAPTER IV. THE PROBLEMS OF PENOLOGY.

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FORE:

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TWO: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[5] the original, and your arrangement seems more natural than, and preferable to, my own. You had no need to fear offending the authors 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.
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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.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.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.
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