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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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3. When the proofs are independent of each otherthat is to say, when they do not derive their value one from the otherthen the more numerous the proofs adduced, the greater is the probability of the fact in question, because the falsity of one proof affects in no way the force of another.Is it possible, then, so beforehand to apportion punishments to crimes that when a crime is committed it shall be but necessary to refer to a code and at once detect its appropriate punishment? Or must the law be general in its language, and leave a wide margin to the discretion of the judge? Beccaria would have the judicial function confined solely to the ascertainment of the fact of a crime, its punishment preordained by the law. On the other hand it is said, that it is impossible to anticipate every case that may arise; that no two cases are ever alike; that it is better to leave the nice adjustment of penalties to the wisdom and impartiality of a judge, and only limit his discretion by rules of a most expansive description.
ONE:

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TWO:The country in which the first attempt was made to apply his principles to practice was Russia, where Catharine II. was anxious to establish a uniform[33] penal code, based on the liberal ideas of the time, which then found more favour in St. Petersburg than they did at Paris. For this purpose in 1767 she summoned to Moscow from all the provinces of Russia those 652 deputies who formed the nearest approach in the history of that country to a Russian Parliament. In the instructions that were read to this assembly, as the basis for the proposed codification of the laws, the principles propounded were couched not only in the spirit but often in the very words of the author of the Crimes and Punishments. The following are examples:

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TWO:[32]But ought such a crime to be let go unpunished in the case of a man who has no effects to lose? No: there are kinds of smuggling of so much importance to the revenue (which is so essential and so difficult a part of a good system of laws), that such a crime deserves a considerable punishment, even imprisonment or servitude; but imprisonment and servitude conformable to the nature of the crime itself. For example, the prison of the tobacco-smuggler ought not to be the same as that of the assassin or the thief; and the labours of the former, limited to the work and service of the very treasury he wished to defraud, will be the punishments most conformable to the nature of his crime.

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TWO: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.Another way of preventing crimes is to interest the magistrates who carry out the laws in seeking rather to preserve than to corrupt them. The greater the number of men who compose the magistracy, the less danger will there be of their exercising any undue power over the laws; for venality is more difficult among men who are under the close observation of one another, and their inducement to increase their individual authority diminishes in proportion to the smallness of the share of it that can fall to each of them, especially when they compare it with the risk of the attempt. If the sovereign accustoms his subjects, by formalities and pomp, by severe edicts, and by refusal to hear the grievances, whether just or unjust, of the man who thinks himself oppressed, to fear rather the magistrates than the[250] laws, it will be more to the profit of the magistrates than to the gain of private and public security.

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ONE: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.Paley, of course, defended the thing he found established; nor, considering the system he had to defend, did he state the case for it without ingenuity. He had, indeed, nothing to add to what Blackstone had said regarding punishment, namely, that it was inflicted, not in proportion to the real guilt of an offence, but in proportion to its facility of commission and difficulty of detection. To steal from a shop was not more criminal than to steal from a house, but, as it was more difficult to detect, it was more severely punished. Sheep, horses, and cloth on bleaching-grounds were more exposed to thieves than other kinds of property; therefore their theft required a stronger deterrent penalty.

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ONE:Banishment, it would seem, should be employed[181] in the case of those against whom, when accused of an atrocious crime, there is a great probability but not a certainty of guilt; but for this purpose a statute is required, as little arbitrary and as precise as possible, condemning to banishment any man who shall have placed his country in the fatal dilemma of either fearing him or of injuring him, leaving him, however, the sacred right of proving his innocence. Stronger reasons then should exist to justify the banishment of a native than of a foreigner, of a man criminated for the first time than of one who has been often so situated.

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TWO: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.There are some crimes which are at the same time of common occurrence and of difficult proof. In them the difficulty of proof is equivalent to a probability of innocence; and the harm of their impunity being so much the less to be considered as their frequency depends on principles other than the risk of punishment, the time for inquiry and the period of prescription ought both to be proportionately less. Yet[161] cases of adultery and pederasty, both of difficult proof, are precisely those in which, according to received principles, tyrannical presumptions of quasi-proofs and half-proofs are allowed to prevail (as if a man could be half-innocent or half-guilty, in other words, half-punishable or half-acquittable); in which torture exercises its cruel sway over the person of the accused, over the witnesses, and even over the whole family of an unfortunate wretch, according to the coldly wicked teaching of some doctors of law, who set themselves up as the rule and standard for judges to follow.

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TWO:Torture, again, is inflicted upon an accused man in order to discover his accomplices in crime. But if it is proved that it is not a fitting method for the discovery of truth, how will it serve to disclose accomplices, which is part of the truth to be discovered? As if a man who accuses himself would not more readily accuse others. And is it just to torment men for the crimes of others? Will not the accomplices be disclosed from the examination of the witnesses and of the accused, from the proofs and whole circumstances of the crime; in sum, from all those very means which should serve to convict the accused himself of guilt? Accomplices generally fly immediately after the capture of a companion; the uncertainty[155] of their lot of itself condemns them to exile, and frees the country from the danger of fresh offences from them; whilst the punishment of the criminal who is caught attains its precise object, namely, the averting of other men by terror from a similar crime.

ONE:For since the observance of some regular proportion between crime and punishment, whatever that proportion may be, constitutes the first principle of an[87] equitable code; and since the most important thing in public morality is a fixed penal estimate for every class of crime; it is above all things desirable that the law should always adhere to such proportion and estimate, by concerning itself solely with the crime and not with the criminal. The injury to the public is precisely the same whether a criminal has broken the law for the first time or for the thousandth and first; and to punish a man more severely for his second offence than for his first, because he has been punished before, is to cast aside all regard for that due proportion between crime and punishment which is after all the chief ingredient of retributive justice, and to inflict a penalty often altogether incommensurate with the injury inflicted on the public.CHAPTER XLI. THE PREVENTION OF CRIMESOF KNOWLEDGEMAGISTRATESREWARDSEDUCATION.

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ONE: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.



FORE:The Chinese penal code of 1647 is probably the nearest approach to Beccarias conception, and nothing is more marvellous than the precision with which it apportions punishments to every shade of crime, leaving no conceivable offence, of commission or[86] omission, without its exact number of bamboo strokes, its exact pecuniary penalty, or its exact term or distance of banishment. It is impossible in this code to conceive any discretion or room for doubt left to the judicial officers beyond the discovery of the fact of an alleged crime. But what is practicable in one country is practicable in another; so that the charge so often urged against thus eliminating judicial discretion, that it is fair in theory but impossible in practice, finds itself at direct issue with the facts of actual life.But there was another side to the brightness of this success. In literature as in war no position of honour can be won or held without danger, and of this Beccaria seems to have been conscious when he[15] pleaded against the charge of obscurity, that in writing he had had before his eyes the fear of ecclesiastical persecution. His love for truth, he confessed, stopped short at the risk of martyrdom. He had, indeed, three very clear warnings to justify his fears. Muratori, the historian, had suffered much from accusations of heresy and atheism, and had owed his immunity from worse consequences chiefly to the liberal protection of Pope Benedict XIV. The Marquis Scipio Maffei had also incurred similar charges for his historical handling of the subject of Free-will. But there was even a stronger warning than these, and one not likely to be lost on a man with youth and life before him; that was the fate of the unfortunate Giannone, who, only sixteen years before Beccaria wrote, had ended with his life in the citadel of Turin an imprisonment that had lasted twenty years, for certain observations on the Church of Rome which he had been rash enough to insert in his History of Naples.

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FORE:From this we see how useful is the art of printing, which makes the public, and not a few individuals, the guardians of the sacred laws, and which has scattered that dark spirit of cabal and intrigue, destined to disappear before knowledge and the sciences, which, however apparently despised, are in reality feared by those that follow in their wake. This is the reason that we see in Europe the diminution of those atrocious crimes that afflicted our ancestors and rendered them by turns tyrants or slaves. Whoever knows the history of two or three centuries ago and of our own, can see that from the lap of luxury and effeminacy have sprung the most pleasing of all human virtues, humanity, charity, and the toleration of human errors; he will know what have been the results of that which is so wrongly called old-fashioned simplicity and honesty. Humanity groaning under implacable superstition; the avarice and ambition of a few dyeing with human blood the golden chests and thrones of[132] kings; secret assassinations and public massacres; every noble a tyrant to the people; the ministers of the Gospel truth polluting with blood hands that every day came in contact with the God of mercythese are not the works of this enlightened age, which some, however, call corrupt. 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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FORE:CHAPTER XXXVI. CRIMES OF DIFFICULT PROOF.The Chinese penal code of 1647 is probably the nearest approach to Beccarias conception, and nothing is more marvellous than the precision with which it apportions punishments to every shade of crime, leaving no conceivable offence, of commission or[86] omission, without its exact number of bamboo strokes, its exact pecuniary penalty, or its exact term or distance of banishment. It is impossible in this code to conceive any discretion or room for doubt left to the judicial officers beyond the discovery of the fact of an alleged crime. But what is practicable in one country is practicable in another; so that the charge so often urged against thus eliminating judicial discretion, that it is fair in theory but impossible in practice, finds itself at direct issue with the facts of actual life.

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FORE:

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TWO:

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ONE:CHAPTER VIII. WITNESSES.

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ONE:But whether the international extradition of criminals be useful I would not venture to decide, until laws more in conformity with the needs of humanity, until milder penalties, and until the emancipation of law from the caprice of mere opinion, shall have given[194] security to oppressed innocence and hated virtue; until tyranny shall have been confined, by the force of universal reason which ever more and more unites the interests of kings and subjects, to the vast plains of Asia; however much the conviction of finding nowhere a span of earth where real crimes were pardoned might be the most efficacious way of preventing their occurrence.


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ONE:The third consequence is this: if it were proved that the severity of punishments were simply useless (to say nothing of being directly opposed to the public good and to the very object of preventing crimes), even in that case it would be contrary not only to those beneficent virtues that flow from an enlightened reason, which prefers to rule over happy human beings than over a flock of slaves, the constant victims of timid cruelty, but it would be also contrary to justice and to the nature of the social contract itself.

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ONE:



FORE:Lord Ellenborough, on the last day but one of May 1810, appealed to their lordships to pause, before they passed the Shoplifting Bill and gave their assent to the repeal of a law which had so long been held necessary for the security of the public. No one, he insisted, was more disposed than himself to the exercise of clemency, but there was not the slightest ground for the insinuations of cruelty that had been cast on the administration of the law. If shoplifting did not require the penalty of death, the same rule would have to apply to horse- and sheep-stealing; and, in spite of all that was said in favour of this speculative humanity, they must all agree, that prevention of crime should be the chief object of the law, and that terror alone could prevent the crime in question. Those who were thus speculating in modern legislation urged that punishment should[63] be certain and proportionate; but he could satisfy the House that any attempt to apply a punishment in exact conformity to the offence would be perfectly ludicrous. He had consulted with the other judges, and they were unanimously of opinion that it would not be expedient to remit this part of the severity of the criminal law.[38] He therefore entreated them to pause.
Published Aug 30.
TWO: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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FORE:Persons guilty of lesser crimes are usually either punished in the obscurity of a prison, or transported, as an example to nations who have given no offence, to a distant and therefore almost useless servitude. Since the gravest crimes are not those which men are tempted to commit on the spur of the moment, the public punishment of a great misdeed will be regarded by most men as strange and of impossible occurrence; but the public punishment of lighter crimes, to which mens thoughts more readily incline, will make an impression, which, at the same time that it diverts the mind from them, will restrain it still more from crimes of greater gravity. Punishments should not only be proportioned to one another and to crimes in point of force, but also in the mode of their infliction.
Published Aug 28.
TWO: There is a general theorem which is most useful for calculating the certainty of a fact, as, for instance, the force of the proofs in the case of a given crime:

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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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3. When the proofs are independent of each otherthat is to say, when they do not derive their value one from the otherthen the more numerous the proofs adduced, the greater is the probability of the fact in question, because the falsity of one proof affects in no way the force of another.Is it possible, then, so beforehand to apportion punishments to crimes that when a crime is committed it shall be but necessary to refer to a code and at once detect its appropriate punishment? Or must the law be general in its language, and leave a wide margin to the discretion of the judge? Beccaria would have the judicial function confined solely to the ascertainment of the fact of a crime, its punishment preordained by the law. On the other hand it is said, that it is impossible to anticipate every case that may arise; that no two cases are ever alike; that it is better to leave the nice adjustment of penalties to the wisdom and impartiality of a judge, and only limit his discretion by rules of a most expansive description.

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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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3. When the proofs are independent of each otherthat is to say, when they do not derive their value one from the otherthen the more numerous the proofs adduced, the greater is the probability of the fact in question, because the falsity of one proof affects in no way the force of another.Is it possible, then, so beforehand to apportion punishments to crimes that when a crime is committed it shall be but necessary to refer to a code and at once detect its appropriate punishment? Or must the law be general in its language, and leave a wide margin to the discretion of the judge? Beccaria would have the judicial function confined solely to the ascertainment of the fact of a crime, its punishment preordained by the law. On the other hand it is said, that it is impossible to anticipate every case that may arise; that no two cases are ever alike; that it is better to leave the nice adjustment of penalties to the wisdom and impartiality of a judge, and only limit his discretion by rules of a most expansive description.


THREE:[43]Even when Paris was reached, and Beccaria and Alessandro were warmly welcomed by DAlembert, Morellet, Diderot, and Baron Holbach, the homesickness remained. You would not believe, says Beccaria to his wife, the welcomes, the politeness, the demonstrations of friendship and esteem, which they have shown to me and my companion. Diderot, Baron Holbach, and DAlembert especially enchant us. The latter is a superior man, and most simple at the same time. Diderot displays enthusiasm and good humour in all he does. In short, nothing is wanting to me but yourself. All do their best to please me, and those who do so are the greatest men in Europe. All of them deign to listen to me, and no one shows the slightest air of superiority. Yet[24] Morellet tells us that even on arrival Beccaria was so absorbed in melancholy, that it was difficult to get four consecutive words from his mouth.

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THREE:I know that those general principles which tend to enlighten and improve the human race are not absolutely useless that the enlightenment of nations is not without some effect on their rulers provided that the prerogative of the latter, their power, their security, their authority, their safety, is not touched thereby. I know well that this general enlightenment, so much boasted of, is a beautiful and glorious chimera, with which philosophers love to amuse themselves, but which would soon disappear if they would open history, and see therefrom to what causes improved institutions are due. The nations of antiquity have passed, and those of the present will pass, before philosophy and its influence have reformed a single government.

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THREE:CHAPTER VI. IMPRISONMENT.

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FORE:The object, therefore, of this chapter is chiefly[70] negative, being none other than to raise such mistrust of mere custom, and so strong a sense of doubt, by the contradictions apparent in existing laws and theories, that the difficulties of their solution may tempt to some investigation of the principles on which they rest.
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 if the interest of Beccarias chapter on Torture is now merely historical, an interest that is actual still attaches to his advocacy of the total abolition of capital punishment, this being the cause with which his name is most generally associated, and for which it is likely to be longest remembered. Previous writers, like Montaigne, if they deprecated the excess or severity of the death penalty, never thought of urging that it should be abolished altogether.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.CHAPTER XVIII. INFAMY.The object of examining an accused man is the ascertainment of truth. But if this truth is difficult to discover from a mans air, demeanour, or countenance, even when he is quiet, much more difficult will it be to discover from a man upon whose face all the signs, whereby most men, sometimes in spite of themselves, express the truth, are distorted by pain. Every violent action confuses and causes to disappear those trifling differences between objects, by which one may sometimes distinguish the true from the false.Again, Proportion between crime and punishment seems to be another natural demand of equity. Yet it is evident that it is only approximately possible, and will vary in every age and country according to the prevalent notions of morality. Is imprisonment for a year, or imprisonment for life, or for how long, a fair and proportionate punishment for perjury? Who shall decide? Shall we submit it to the opinion of the judges? But has not Romilly left on record the story of the two men tried by two different judges for stealing some chickens, who were sentenced respectively one to imprisonment for two months, and the other to transportation? Shall we then give up all attempt at proportion and apply the same deterrent as equally efficacious against slight or grave offences? Draco, when asked why he made death the punishment for most offences that were possible, is said to have replied, Small ones deserve it, and I can find no greater for the gravest. The same reasoning was for a long time that of our own law; and in Japan,[78] where every wrong act was one of disobedience to the Emperor, and accordingly of equal value, the same penalty of death for gambling, theft, or murder, obviated all difficulties with regard to a proportion which is easier to imagine than it is to define.
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