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This honour, then, is one of those complex ideas[210] which are an aggregate not only of simple ideas but of ideas no less complex than themselves, and which in their various presentments to the mind now admit and now omit some of their different component elements, only retaining some few common ideas, just as in algebra several complex quantities admit of a common divisor. To find this common divisor in the different ideas that men form of honour, we must cast a rapid glance over the first formation of communities.

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This honour, then, is one of those complex ideas[210] which are an aggregate not only of simple ideas but of ideas no less complex than themselves, and which in their various presentments to the mind now admit and now omit some of their different component elements, only retaining some few common ideas, just as in algebra several complex quantities admit of a common divisor. To find this common divisor in the different ideas that men form of honour, we must cast a rapid glance over the first formation of communities.Are torture and torments just, and do they attain the end which the law aims at?[34]
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ONE: TWO:CHAPTER IX. SECRET ACCUSATIONS.


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THREE:In order that a punishment may be just, it must contain only such degrees of intensity as suffice to deter men from crimes. But as there is no one who on reflection would choose the total and perpetual loss of his liberty, however great the advantages offered him by a crime, the intensity of the punishment of servitude for life, substituted for capital punishment, has that in it which is sufficient to daunt the most determined courage. I will add that it is even more deterrent than death. Very many men face death calmly and firmly, some from fanaticism, some from vanity, which almost always attends a man to the tomb; others from a last desperate attempt either no longer to live or to escape from their misery; but neither fanaticism nor vanity have any place among fetters and chains, under the stick, under the yoke, in a cage of iron; the wretch thus punished is so far from terminating his miseries that with his punishment he only begins them.

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THREE: An error, not less common than it is contrary to the object of societythat is, to the consciousness of personal securityis leaving a magistrate to be the arbitrary executor of the laws, free at his pleasure to imprison a citizen, to deprive a personal enemy of his liberty on frivolous pretexts, or to leave a friend unpunished in spite of the strongest proofs of his guilt. Imprisonment is a punishment which, unlike every other, must of necessity precede the declaration of guilt; but this distinctive character does not deprive it of the other essential of punishment, namely, that the law alone shall determine the cases under which it shall be merited. It is for the law, therefore, to point out the amount of evidence of a crime which shall justify the detention of the accused, and his subjection to examination and punishment. For such detention there may be sufficient proofs in common[133] report, in a mans flight, in a non-judicial confession, or in the confession of an accomplice; in a mans threats against or constant enmity with the person injured; in all the facts of the crime, and similar indications. But these proofs should be determined by the laws, not by the judges, whose decisions, when they are not particular applications of a general maxim in a public code, are always adverse to political liberty. The more that punishments are mitigated, that misery and hunger are banished from prisons, that pity and mercy are admitted within their iron doors, and are set above the inexorable and hardened ministers of justice, the slighter will be the evidences of guilt requisite for the legal detention of the suspected.

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THREE:

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THREE:The close connection, therefore, of crime and punishment is of the utmost importance, if it be desirable that in rough and common minds there should, together with the seductive idea of an advantageous crime, immediately start up the associated idea of its punishment. Long delay has no other effect than the perpetual separation of these two ideas; and whatever the impression produced by the punishment of a crime, it produces it less as a punishment than as a sight, and only produces it when the horror of the particular crime, which would serve to strengthen the feeling of the punishment, has been weakened in the minds of the spectators.
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THREE:Moreover, if, as was said, our feelings are limited in quantity, the greater respect men may have for things outside the laws, the less will remain to them for the laws themselves. From this principle the wise administrator of the public happiness may draw some useful consequences, the exposition of which would lead me too far from my subject, which is to demonstrate the uselessness of making a prison of the State. A law with such an object is useless, because, unless inaccessible rocks or an unnavigable sea separate a country from all others, how will it be possible to close all the points of its circumference and keep guard over the guardians themselves? A man who transports everything he has with him, when he has done so cannot be punished. Such a crime once committed can no longer be punished, and to punish it beforehand would be to punish mens wills, not their actions, to exercise command over their intention, the freest part of human nature, and altogether independent of the control of human laws. The punishment of an absent man in the property he leaves behind him would ruin all international commerce,[225] to say nothing of the facility of collusion, which would be unavoidable, except by a tyrannical control of contracts. And his punishment on his return, as a criminal, would prevent the reparation of the evil done to society, by making all removals perpetual. The very prohibition to leave a country augments peoples desire to do so, and is a warning to foreigners not to enter it.CHAPTER XXXVI. CRIMES OF DIFFICULT PROOF.
THREE:Romilly also injured his cause by a pamphlet on the criminal law, in which he criticised severely the doctrines of Paley. So strongly was this resented, that in 1810 his bill to abolish capital punishment for stealing forty shillings from a dwelling-house did not even pass the Commons, being generally opposed, as it was by Windham, because the maintenance of Paleys reputation was regarded as a great object of national concern.[37] That is to say, men voted not so much against the bill as against the author of a heresy against Paley.

ONE:Against this general uncertainty of punishment, which no severity in the law can affect or make up for, the only certainty of punishment dependent on the law is in the event of conviction. But even this certainty is of a very qualified nature, for it depends on sentiments of due proportion between a crime and its penalty, which in no two men are the same. Every increase of severity in punishment diminishes its certainty, since it holds out to a criminal fresh hopes of impunity from the clemency of his judges, prosecutors, or jury.

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ONE:The question, therefore, arises, Does crime depend to any appreciable extent on imprisonment at all, or on the length or shortness of sentences?
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TWO:The Translator has abstained from all criticism or comment of the original, less from complete agreement[vi] with all its ideas than from the conviction that annotations are more often vexatious than profitable, and are best left to the reader to make for himself. There is scarcely a sentence in the book on which a commentator might not be prolix.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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The same may be said, though for a different reason, where there are several accomplices of a crime, not all of them its immediate perpetrators. When several men join together in an undertaking, the greater its[163] risk is, the more will they seek to make it equal for all of them; the more difficult it will be, therefore, to find one of them who will be willing to put the deed into execution, if he thereby incurs a greater risk than that incurred by his accomplices. The only exception would be where the perpetrator received a fixed reward, for then, the perpetrator having a compensation for his greater risk, the punishment should be equalised between him and his accomplices. Such reflections may appear too metaphysical to whosoever does not consider that it is of the utmost advantage for the laws to afford as few grounds of agreement as possible between companions in crime.Pederasty, so severely punished by the laws, and so readily subjected to the tortures that triumph over innocence, is founded less on the necessities of man, when living in a state of isolation and freedom, than on his passions when living in a state of society and slavery. It derives its force not so much from satiety of pleasure as from the system of education now in vogue, which, beginning by making men useless to themselves in order to make them useful to others, causes, by its too strict seclusion, a waste of all vigorous development, and accelerates the approach of old age.Laws should only be considered as a means of conducting mankind to the greatest happiness.The following is the kind of reasoning adopted[175] by the thief or the assassin, whose only motives for not breaking the laws are the gallows or the wheel. (I know that the analysis of ones own thoughts is an art only learnt by education, but a thief does not the less act according to certain principles because he is unable to express them). Of what sort, he argues, are these laws that I am bound to observe, that leave so great an interval between myself and the rich man? He denies me the penny I ask of him, and excuses himself by ordering from me a work of which he himself knows nothing. Who has made these laws? Were they not made by rich and powerful men, who have never deigned to visit the wretched hovels of the poor, who have never divided a musty loaf of bread amid the innocent cries of famished children and the tears of a wife? Let us break these bonds, which are fatal to the greater number, and only useful to a few indolent tyrants; let us attack injustice in its source. I will return to my state of natural independence; I will live for some time happy and free on the fruits of my courage and address; and if the day should ever come when I have to suffer and repent for it, the time of suffering will be short, and I shall have one day of misery for many years of liberty and pleasure. As the king of a small band, I will correct the errors of fortune, and see these tyrants pale and tremble before one, whom in their insolent arrogance they rated lower than their[176] horses or their dogs. Then religion hovers before the mind of the criminal, who turns everything to a bad use, and offering him a facile repentance and an almost certain eternity of bliss does much to diminish in his eyes the horror of that last tragedy of all.
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