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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for life, with labour and an annual whipping on the place of the crime, was dreaded more than death, which it superseded as a punishment.

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CHAPTER XXXIII. OF THE PUBLIC TRANQUILLITY. Colour Background Image Background
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ONE: 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 mans 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[170] 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.

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ONE: 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 mens 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.
ONE: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 Comdie Fran?aise, 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.
  • THREE: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. THREE: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[44] 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?

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  • THREE: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! 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?

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  • THREE: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[72] of arson by accident undergoes different degrees of banishment and a fixed number of bamboo strokes.[40] THREE: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.

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  • THREE: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[157] 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.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. THREE: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 Madans Thoughts on Executive Justice, in which the author, adopting Beccarias 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.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?

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ONE: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[91] 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] THREE: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]
ONE: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.

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ONE:It is of interest to trace some of the practical results which followed Beccarias treatise during the thirty years that he lived after its publication; that is, from the year 1764 to 1794.
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FORE:CHAPTER XXXVI. CRIMES OF DIFFICULT PROOF.In a period of ten years, from 1867 to 1876, the total number of principal indictable offences committed in the metropolis against propertyand these constitute the great majority of crimeswere 117,345. But the apprehensions for these offences were only 26,426, the convictions only 19,242. In other words,[94] 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]

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FORE: 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 mens 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.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.
ONE: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.
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ONE: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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ONE: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.CHAPTER V. OBSCURITY OF THE LAWS.
FORE: FORE: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.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. FORE: FORE: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[184] 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.
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CHAPTER XXXII. OF DEBTORS.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.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[171] case constituting the second reason for which one may believe capital punishment to be both just and necessary.Lastly, the surest but most difficult means of preventing crimes is to improve educationa 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;[251] 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.
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