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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.
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ONE:The result, then, of torture is a matter of temperament, of calculation, which varies with each man according[152] 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.

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THREE: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 countrys sons, it is sufficient merely to consult human nature itself, to perceive the truth of the assertion I have made.

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THREE: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.

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ONE:The following especially is from Beccaria:

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THREE: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] Lorem ipsum dolor sit amet.
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? Lorem ipsum dolor sit amet.
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ONE: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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ONE: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.

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FORE:CHAPTER XXXVII. OF A PARTICULAR KIND OF CRIME.
FORE: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.
FORE: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 DAlembert 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.
FORE: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[85] 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.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 Madans 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.
FORE: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.
FORE: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.CHAPTER IV. THE PROBLEMS OF PENOLOGY.
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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ONE: 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 mens mutual[217] obligations, than to falsify those obligations themselves. But the innocent bankrupthe 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 substancefor 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.

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FORE:The result, then, of torture is a matter of temperament, of calculation, which varies with each man according[152] 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.
FORE: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[42] 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]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[174] 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.

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CHAPTER XIV. CRIMINAL ATTEMPTS, ACCOMPLICES, IMPUNITY.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[106] 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.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[104] 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.
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