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The most successful adoption of Beccarias principles of punishment occurred in Tuscany, under the Grand Duke Leopold. When he ascended the ducal throne, the Tuscans were the most abandoned people of all Italy. Robberies and murders were none the less frequent for all the gallows, wheels, and tortures which were employed to repress them. But Leopold in 1786 resolved to try Beccarias plan, for which purpose he published a code, proportioning punishments to crimes, abolishing mutilation and torture, reducing the number of acts of treason, lessening confiscations, destroying the right of asylum, and above all abolishing capital punishment even for murder. The result was, says a contemporary, that Tuscany, from having been the land of the greatest crimes and villanies, became the best ordered State of Europe.[22] During twenty years only five murders were committed in Tuscany, whilst at Rome, where death continued to be inflicted with great pomp, as[36] many as sixty were committed within the space of three months.[23]

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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.But why does this crime never entail disgrace upon its author, seeing that it is a theft against the prince, and consequently against the nation? I answer, that offences which men do not consider can be committed against themselves do not interest them enough to produce public indignation against their perpetrator. Smuggling is an offence of this character. Men in general, on whom remote consequences make very feeble impressions, do not perceive the harm that smuggling can do them, nay, often they enjoy a present advantage from it. They only perceive the injury done to the sovereign; they are not interested, therefore, in withdrawing their favour from a smuggler as much as they are in doing so from a man who commits a theft in private life, who forges a signature, or brings upon them other evils. The principle is self-evident, that every sensitive being only interests himself in the evils which he knows. This crime arises from the law itself; since the benefit it promises increases with the increase of the import duty, and therefore the temptation and the facility of committing it increases with the circumference of territory to be guarded and the small size of the prohibited wares. The penalty of losing both the prohibited goods, and whatever effects are found with them, is most just; but its efficacy will be greater in proportion as the import duty is lower, because men only incur risks relative to the advantage derivable from the prosperous issue of their undertaking.I speak of probability in connection with crimes, which, to deserve punishment, ought to be proved. But the paradox is only apparent, if one reflects that, strictly speaking, moral certainty is only a probability, but a probability which is called certainty, because every sensible person necessarily assents to it, by a force of habit which arises from the necessity of acting, and which is prior to all speculation. The certainty requisite for certifying that a man is a criminal is, therefore, the same that determines everyone in the most important actions of his life. The proofs of a crime may be divided into perfect and imperfect, the former being of such a[136] nature as exclude the possibility of a mans innocence, and the latter such as fall short of this certainty. Of the first kind one proof alone is sufficient for condemnation; of the second, or imperfect kind, as many are necessary as suffice to make a single perfect proof; that is to say, when, though each proof taken separately does not exclude the possibility of innocence, yet their convergence on the same point makes such innocence impossible. But let it be noted that imperfect proofs, from which an accused has it in his power to justify himself and declines to do so, become perfect. This moral certainty of proofs, however, is easier to feel than to define with exactitude: for which reason I think that the best law is one which attaches to the chief judge assessors, taken by lot, not by selection, there being in this case more safety in the ignorance which judges by sentiment than in the knowledge which judges by opinion. Where the laws are clear and precise, the function of a judge consists solely in the certification of fact. If for searching out the proofs of a crime ability and cleverness are required, and if in the presentation of the result clearness and precision are essential, all that is required to judge of the result is simple and common good sense, a faculty which is less fallacious than the learning of a judge, accustomed as he is to wish to find men guilty and to reduce everything to an artificial system borrowed from his studies. Happy the nation where the[137] laws are not a science! It is a most useful law that everyone shall be judged by his equals, because where a citizens liberty and fortune are at stake those sentiments which inequality inspires should have no voice; that feeling of superiority with which the prosperous man regards the unfortunate one, and that feeling of dislike with which an inferior regards his superior, have no scope in a judgment by ones equals. But when the crime in question is an offence against a person of a different rank from the accused, then one half of the judges should be the equals of the accused, the other half equals of the plaintiff, that so, every private interest being balanced, by which the appearances of things are involuntarily modified, only the voice of the laws and of truth may be heard. It is also in accordance with justice that an accused person should have power up to a certain point of refusing judges whom he may suspect; and if he is allowed the exercise of this power for some time without opposition, he will seem to condemn himself. Verdicts should be public, and the proofs of guilt public, in order that opinionwhich is, perhaps, the only bond of society there ismay place a check on outbursts of force and passion, and that the people may say, We are not slaves without defence: a feeling which both inspires them with courage and is as good as a tribute to a sovereign who understands his real interest. I refrain from pointing out other details and precautions which[138] require similar regulations. I should have said nothing at all, had it been necessary for me to say everything.
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ONE:CHAPTER XXIV. THE MEASURE OF PUNISHMENTS.

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THREE: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.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]

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THREE:To combine the maximum of perspicuity with the maximum of fidelity to the original has been the cardinal principle observed in the translation. But it would, of course, have been no less impossible than contrary to the spirit of the original to have attempted to render perfectly comprehensible what the author purposely wrapped in obscurity. A translation can but follow the lights and shades of the surface it reflects, rendering clear what is clear in the original, and opaque what is opaque.[66]

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THREE:The credibility, therefore, of a witness must diminish in proportion to the hatred, friendship, or close connection between himself and the accused. More than one witness is necessary, because, so long as one affirms and another denies, nothing is proved, and the right which everyone has of being held innocent prevails.[140] The credibility of a witness becomes appreciably less, the greater the atrocity of the crime imputed,[66] or the improbability of the circumstances, as in charges of magic and gratuitously cruel actions. It is more likely, as regards the former accusation, that many men should lie than that such an accusation should be true, because it is easier for many men to be united in an ignorant mistake or in persecuting hatred than for one man to exercise a power which God either has not conferred or has taken away from every created being. The same reasoning holds good also of the second accusation, for man is only cruel in proportion to his interest to be so, to his hatred or[141] to his fear. Properly speaking, there is no superfluous feeling in human nature, every feeling being always in strict accordance with the impressions made upon the senses. In the same way the credibility of a witness may sometimes be lessened by the fact of his being a member of some secret society, whose purposes and principles are either not well understood or differ from those of general acceptance; for such a man has not only his own passions but those of others besides.

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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.

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ONE:Although these instructions were not so much laws as suggestions of laws, it is obvious what their effect must have been when published and diffused throughout Russia. That they were translated into Latin, German, French, and Italian proves the interest that was taken in Europe by this first attempt to apply the maxims of philosophy to practical government.It is not useless to repeat what others have written, namely, that the best method of preventing this crime is to punish the aggressorin other words, the man who gives rise to the dueldeclaring him to be innocent who without his own fault has been constrained to defend that which existing laws do not assure to him, that is, opinion.

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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.The second consequence is, that the sovereign, who represents society itself, can only form general laws, obligatory on all; he cannot judge whether[125] any one in particular has broken the social compact, for in that case the nation would be divided into two parties, one represented by the sovereign, asserting the violation of such contract; the other by the accused, denying the same. Hence the necessity of a third person to judge of the fact; in other words, of a magistrate, whose decisions shall simply consist of affirmations or denials of particular facts, and shall also be subject to no appeal. Lorem ipsum dolor sit amet.
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. Lorem ipsum dolor sit amet.
THREE:In view of these principles it will appear strange (to anyone who does not reflect, that reason has, so to speak, never yet legislated for a nation), that it is just the most atrocious crimes or the most secret and chimerical onesthat is, those of the least probabilitywhich are proved by conjectures or by the weakest and most equivocal proofs: as if it were the interest of the laws and of the judge, not to search for the truth, but to find out the crime; as if the danger of condemning an innocent man were not so much the greater, the greater the probability of his innocence over that of his guilt.Whoever, then, I repeat, will honour me with his criticisms, let him not begin by supposing me to advocate principles destructive of virtue or religion, seeing that I have shown that such are not my principles; and instead of his proving me to be an infidel or a[116] rebel, let him contrive to find me a bad reasoner or a shortsighted politician; but let him not tremble at every proposition on behalf of the interests of humanity; let him convince me either of the inutility or of the possible political mischief of my principles; let him prove to me the advantage of received practices. I have given a public testimony of my religion and of my submission to my sovereign in my reply to the Notes and Observations; to reply to other writings of a similar nature would be superfluous; but whoever will write with that grace which becomes honest men, and with that knowledge which shall relieve me from the proof of first principles, of what character soever, he shall find in me not so much a man who is eager to reply as a peaceable lover of the truth. Lorem ipsum dolor sit amet.
THREE:The greatest effect that any punishment has upon the human mind is not to be measured by its intensity but by its duration, for our sensibility is more easily and permanently affected by very slight but repeated impressions than by a strong but brief shock. Habit holds universal sway over every sentient being, and as we speak and walk and satisfy our needs by its aid, so moral ideas only stamp themselves on our mind by long and repeated impressions. It is not the terrible yet brief sight of a criminals death, but the long and painful example of a man deprived of[172] his liberty, who, having become as it were a beast of burthen, repays with his toil the society he has offended, which is the strongest restraint from crimes. Far more potent than the fear of death, which men ever have before their eyes in the remote distance, is the thought, so efficacious from its constant recurrence: I myself shall be reduced to as long and miserable a condition if I commit similar misdeeds. Lorem ipsum dolor sit amet.
THREE:Yet Lord Ellenborough was one of the best judges known to English history; he was, according to his biographer, a man of gigantic intellect, and one of the best classical scholars of his day; and if he erred, it was with all honesty and goodness of purpose. The same must be said of Lord Chief Justice Tenterdens opposition to any change in the law of forgery. His great merits too as a judge are matter of history, yet when the Commons had passed the bill for the abolition of capital punishment for forgery, Lord Tenterden[65] assured the House of Lords that they could not without great danger take away the punishment of death. When it was recollected how many thousand pounds, and even tens of thousands, might be abstracted from a man by a deep-laid scheme of forgery, he thought that this crime ought to be visited with the utmost extent of punishment which the law then wisely allowed. The House of Lords again paused in submission to judicial authority. Lorem ipsum dolor sit amet.

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ONE: Wise governments suffer not political idleness in the midst of work and industry. I mean by political idleness that existence which contributes nothing to society either by its work or by its wealth; which gains without ever losing; which, stupidly admired and reverenced by the vulgar, is regarded by the wise man with disdain, and with pity for the beings who are its victims; which, being destitute of that stimulus of an active life, the necessity of preserving or increasing[222] the store of worldly goods, leaves to the passions of opinion, not the least strong ones, all their energy. This kind of idleness has been confused by austere declaimers with that of riches, gathered by industry; but it is not for the severe and narrow virtue of some censors, but for the laws, to define what is punishable idleness. He is not guilty of political idleness, who enjoys the fruits of the virtues or vices of his ancestors and sells in exchange for his pleasures bread and existence to the industrious poor, who carry on peacefully the silent war of industry against wealth, instead of by force a war uncertain and sanguinary. The latter kind of idleness is necessary and useful, in proportion as society becomes wider and its government more strict.

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ONE:A childs simple philosophy of punishment therefore is after all the correct one, when it tells you without hesitation that the reason a man is punished for a bad action is simply because he deserves it. The notion of desert in punishment is based entirely on feelings of the justice of resentment. So that the[83] primary aim of legal punishment is precisely the same as may be shown historically to have been its origin, namely, the regulation by society of the wrongs of individuals. In all early laws and societies distinct traces may be seen of the transition of the vendetta, or right of private revenge, from the control of the person or family injured by a crime to that of the community at large. The latter at first decided only the question of guilt, whilst leaving its punishment to the pleasure of the individuals directly concerned by it. Even to this day in Turkey sentences of death for murder run as follows: So-and-so is condemned to death at the demand of the victims heirs; and such sentences are sometimes directed to be carried out in their presence.[45] By degrees the community obtained control of the punishment as well, and thus private might became public right, and the resentment of individual injuries the Retributive Justice of the State.The following letter by Beccaria to the Abb Morellet in acknowledgment of the latters translation of his treatise is perhaps the best introduction to the life and character of the author. The letter in question has been quoted by Villemain in proof of the debt owed by the Italian literature of the last century to that of France, but from the allusions therein contained to Hume and the Spectator it is evident that something also was due to our own. Beccaria had spent eight years of his youth in the college of the Jesuits at Parma, with what sense of gratitude this letter will show. The following is a translation of the greater part of it:

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FORE:
FORE: Whatever improvement our penal laws have undergone in the last hundred years is due primarily to Beccaria, and to an extent that has not always been recognised. Lord Mansfield is said never to have mentioned his name without a sign of respect. Romilly referred to him in the very first speech he delivered in the House of Commons on the subject of law reform. And there is no English writer of that day who, in treating of the criminal law, does not refer to Beccaria.But (he goes on) since it would be an absurd folly to expect this general revolution, this general reconstruction, which could only be effected by very violent means, such as would be at least a very great misfortune for the present generation, and hold out an uncertain prospect of compensation for the next one, every speculative work, like the Dei[20] Delitti e delle Pene, enters into the category of Utopias, of Platonic Republics and other ideal governments; which display, indeed, the wit, the humanity, and the goodness of their authors, but which never have had nor ever will have any influence on human affairs.
FORE:
FORE:
FORE: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]But undoubtedly punishment, although in its origin and present intention vindictive, must exercise a certain preventive force against crime, and this preventive force can scarcely be estimated, for that which is prevented is, of course, not seen. But the efficiency of punishment as a deterrent is proportioned to its certainty, and there is a large element of uncertainty that can never be eliminated. For every malefactor there are two hopes: first, that he may escape detection or apprehension; secondly, that he may escape conviction. That his hopes of impunity are not without reason greater than his fears of punishment the following facts attest.
FORE: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.
FORE:This truth is, in fact, felt, though in a confused way, by the very persons who place themselves farthest from it. For a confession made under torture is of no avail unless it be confirmed by an oath made after it; and yet, should the criminal not confirm his confession, he is tortured afresh. Some doctors of law and some nations only allow this infamous begging of the question to be employed three times; whilst other nations and other doctors leave it to the discretion of the judge.[19]
ONE:

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ONE:The right to ask such a question derives itself from recent experience. In 1853 the country decided to shorten terms of penal servitude as compared with those of the then expiring system of transportation, for which they were to be substituted. Four years later it was resolved to equalise terms of penal servitude with those formerly given of transportation, though transportation for seven years was still to have its equivalent in three of penal servitude. Then came the garrotting year, 1862, in consequence of which the minimum term of penal servitude was raised to five years, whilst no sentence of penal servitude, after a previous conviction of felony, was to be for less than seven years. Now again the tide has turned in favour of shorter sentences, and it is officially proposed to relinquish the latter minimum of servitude as too severe, and as leading in practice to sentences of simple imprisonment, which on the other hand are declared to be too slight.

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FORE:Among other abuses of grammar, which have no slight influence on human affairs, that one is notable which makes the evidence of a condemned criminal null and void. He is dead civilly say gravely the peripatetic lawyers, and a dead man is incapable of any action. In support of this silly metaphor many[139] victims have been sacrificed, and it has very often been disputed with all seriousness whether the truth should not yield to judicial formulas. Provided that the testimony of a condemned criminal does not go to the extent of stopping the course of justice, why should not a fitting period be allowed, even after condemnation, both to the extreme wretchedness of the criminal and to the interests of truth, so that, by his adducing fresh matter to alter the complexion of the fact, he may justify himself or others in a new trial? Forms and ceremonies are necessary in the administration of justice, because they leave nothing to the free will of the administrator; because they give the people an idea of a justice which is not tumultuary and self-interested, but steadfast and regular; and because men, the slaves of habit and imitation, are more influenced by their feelings than by arguments. But such forms can never without fatal danger be so firmly fixed by the laws as to be injurious to truth, which from being either too simple or two complex needs some external pomp to conciliate the ignorant populace.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.
FORE: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.

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I conclude with this reflection, that the scale of punishments should be relative to the condition of a nation. On the hardened minds of a people scarcely emerged from the savage state the impressions made should be stronger and more sensible. One needs a[169] thunderbolt for the destruction of a fierce lion that faces round at the shot of a gun. But in proportion as mens minds become softened in the social state, their sensibility increases, and commensurate with that increase should be the diminution of the force of punishment, if it be desired to maintain any proportion between the object and the sensation that attends it.CHAPTER III. CONSEQUENCES. From the simple consideration of the truths hitherto demonstrated it is evident that the object of punishment is neither to torment and inflict a sensitive creature nor to undo a crime already committed. Can he, whose function it is, so far from acting from passion, to tranquillise the private passions of his fellows, harbour in the body politic such useless cruelty, the instrument either of furious fanatics or of weak tyrants? Shall perchance the shrieks of an unhappy wretch call back from never-receding time actions already executed? The object, therefore, of punishment is simply to prevent the criminal from injuring anew his fellow-citizens, and to deter others from committing similar injuries; and those punishments and that method of inflicting them should be preferred which, duly proportioned to the offence, will produce a more efficacious and lasting impression on the[166] minds of men and inflict the least torture on the body of a criminal.The chief honour of the earliest attempt at law reform belongs to Sir William Meredith, who in 1770 moved for a committee of inquiry into the state of the criminal laws. This committee proposed in its report of the following year the repeal of a few Acts which made certain offences capital; and accordingly the Commons in 1772 agreed, that it should no longer be punishable as high treason to make an attempt on the life of a Privy Councillor, that desertion of officers or soldiers should no longer be capital, nor the belonging to people who called themselves Egyptians. Some other proposals were negatived, such as a repeal of the hard law of James I. against infanticide; but the House of Lords refused their assent even to the slight changes passed by the Commons. It was an innovation, they said, and subversion of the law.[34][53] It is no reproach to Meredith, Burke, and Fox that they ceased to waste their strength against Conservatism such as this. All hope of reform was out of the question; and the most dreadful atrocities were suffered or defended. In 1777 a girl of 14 lay in Newgate under sentence to be burnt alive for false coinage, because some whitewashed farthings, that were to pass for sixpences, were found on her person; and a reprieve only came just as the cart was ready to take her to the stake. Not till 1790 was the law abolished by which women were liable to be burnt publicly for high or petit treason.[35]Others again measure crimes rather by the rank of the person injured than by their importance in regard to the public weal. Were this the true measure of crimes, any act of irreverence towards the Supreme Being should be punished more severely than the assassination of a monarch, whereas the superiority of His nature affords an infinite compensation for the difference of the offence.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.
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