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Yet, supposing it were proved to-morrow that punishment fails entirely of the ends imputed to it; that, for example, the greater number of crimes are[80] committed by criminals who have been punished already; that for one chance of a mans reformation during his punishment there are a hundred in favour of his deterioration; and that the deterrent influence of his punishment is altogether removed by his own descriptions of it; shall we suppose for a moment that society would cease to punish, on the ground that punishment attained none of its professed ends? Would it say to the horse-stealer, Keep your horse, for nothing we can do to you can make you any better, nor deter others from trying to get horses in the same way?

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The very severity of a punishment leads men to dare so much the more to escape it, according to the greatness of the evil in prospect; and many crimes are thus committed to avoid the penalty of a single one. Countries and times where punishments have been most severe have ever been those where the bloodiest and most inhuman deeds have been committed, the same spirit of ferocity that guided the hand of the legislator having guided also that of the parricide and assassin; on the throne dictating iron[168] laws for the villanous souls of slaves to obey, and in the obscurity of private life urging to the slaughter of tyrants, only to create fresh ones in their stead.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.
TWO:It would, therefore, be a mistake to ascribe to one, who only discusses social conventions and their consequences, principles contrary either to natural law or to revelation, for the reason that he does not discuss them. It would be a mistake, when he speaks of a state of war as anterior to a state of society, to understand it in the sense of Hobbes, as meaning that no obligation nor duty is prior to the existence of society, instead of understanding it as a fact due to the corruption of human nature and the want of any expressed sanction. It would be a mistake to impute it as a fault to a writer who is considering the results of the social compact[115] that he does not admit them as pre-existent to the formation of the compact itself.

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THREE:The very severity of a punishment leads men to dare so much the more to escape it, according to the greatness of the evil in prospect; and many crimes are thus committed to avoid the penalty of a single one. Countries and times where punishments have been most severe have ever been those where the bloodiest and most inhuman deeds have been committed, the same spirit of ferocity that guided the hand of the legislator having guided also that of the parricide and assassin; on the throne dictating iron[168] laws for the villanous souls of slaves to obey, and in the obscurity of private life urging to the slaughter of tyrants, only to create fresh ones in their stead.
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FORE: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. 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.
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FORE:It was by the advice of Scarlett, Lord Abinger, that he ventured to aim at the repeal of all statutes punishing mere theft with death; but, deeming it hopeless to urge their abolition all at once, he resolved to begin with that famous statute of Elizabeth which made it a capital crime to steal a handkerchief or anything else from the person of another which was of the value of a shilling. His bill to effect this[60] passed both Houses the same year it was introduced (1808), in spite of the strong opposition of the great legal dignitaries in either House. The statute was based, said Judge Burton, on the experience of two and a half centuries. The alternative punishment of transportation for seven years, said the Attorney-General, would be too short; it should be for more years than seven, if not for life. If any change of punishment were necessary, said Lord Ellenborough, it should be transportation for life.

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FORE: We have seen that the true measure of crimes is the injury done to society. This is one of those palpable truths which, however little dependent on quadrants or telescopes for their discovery, and fully within the reach of any ordinary intelligence, are yet, by a marvellous combination of circumstances, only recognised clearly and firmly by some few thinkers, belonging to every nationality and to every age. But Asiatic ideas, and passions clothed with authority and power, have, generally by imperceptible movements, sometimes by violent assaults on the timid credulity of mankind, dissipated those simple notions, which perhaps formed the first philosophy of primitive communities, and to which the enlightenment of this age seems likely to reconduct us, but to do so with that greater sureness, which can be gained from an exact[200] investigation into things, from a thousand unhappy experiences, and from the very obstacles that militate against it.

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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.CHAPTER XXXV. SUICIDE AND ABSENCE. If we would bring to the study of Beccarias treatise the same disposition of mind with which he wrote it, we must enter upon the subject with the freest possible spirit of inquiry, and with a spirit of doubtfulness, undeterred in its research by authority however venerable, by custom however extended, or by time however long. It has been from too great reverence for the wisdom of antiquity that men in all ages have consigned their lives and properties to the limited learning and slight experience of generations which only lived for themselves and had no thought of binding posterity in the rules they thought suitable to their own times. Beccaria sounded the first note of that appeal from custom to reason in the dominion of law which has been, perhaps, the brightest feature in the history of modern times, and is still transforming the institutions of all countries.[66]
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