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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.Are the same penalties equally useful in all times?
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  • ONE:CHAPTER XVII. BANISHMENT AND CONFISCATIONS.Sir James Mackintosh, who succeeded Romilly as law reformer, in 1820 introduced with success six penal reform bills into the House of Commons; but the Lords assented to none of them that were of any practical importance to the country. They agreed, indeed, that it should no longer be a capital offence for an Egyptian to reside one year in the country, or for a man to be found disguised in the Mint, or to injure Westminster Bridge; but they did not agree to remove the capital penalty for such offences as wounding cattle, destroying trees, breaking down the banks of rivers, or sending threatening letters. It was feared that if the punishment were mitigated, the whole of Lincolnshire might be submerged, whole forests cut down, and whole herds destroyed. As to the Shoplifting Bill, they would not let death be abolished for stealing in shops altogether, but only where the value of the theft was under 10l. That seemed the limit of safe concession. TWO:
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  • ONE: One of the greatest preventives of crimes is, not the cruelty of the punishments attached to them, but their infallibility, and consequently that watchfulness on the part of the magistrates and that inexorable severity on the part of the judge which, to be a useful virtue, must coincide with a mild system of laws. The certainty of a punishment, moderate though it be, will ever make a stronger impression than the fear of another, more terrible, perhaps, but associated with the hope of impunity; for even the least evils when certain always terrify mens minds, and hope, that gift of heaven, which often makes up to us for everything, always throws into the distance the idea of greater evils, especially when its force is increased by impunity, which avarice and weakness so often grant. TWO:The opinion that each citizen should have liberty to do whatsoever is not contrary to the laws, without fear of any other inconvenience than such as may arise from the action itselfthis is the political dogma[203] that should be believed by the people and promulgated by the chief magistrates, a dogma as sacred as that of the incorrupt guardianship of the laws, without which there can be no legitimate society; a just compensation to mankind for their sacrifice of that entire liberty of action which belongs to every sensitive being, and is only limited by the extent of its force. This it is that forms liberal and vigorous souls, and enlightened minds; that makes men virtuous with that virtue which can resist fear, and not with that flexible kind of prudence which is only worthy of a man who can put up with a precarious and uncertain existence. 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:So signal a success in France was a sufficient guarantee of success elsewhere. A knowledge of the book must have speedily crossed the Channel, for Blackstone quoted it the very year after its publication. It was first translated into English in 1768, together with Voltaires commentary; but just as Morellets translation professed to have been published at Philadelphia, so the English translator kept his name a secret. The Economical Society of Berne, which was accustomed to bestow a gold medal on the writer of the best treatise on any given subject, violated its own rules in favour of the anonymous writer of the Delitti, inviting him to disclose his name, and to accept the gold medal as a sign of esteem due to a citizen who had dared to raise his voice in favour of humanity against the most deeply engrained prejudices.CHAPTER XXVII. CRIMES AGAINST PERSONAL SECURITYACTS OF VIOLENCEPUNISHMENTS OF NOBLES.
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  • THREE:In the ordinary state of society the death of a citizen is neither useful nor necessary.

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  • THREE:So great, however, did the changes appear to be, that Sir James Mackintosh declared, towards the close of his life, that it was as if he had lived in two different countries, such was the contrast between the past and the present. Yet Sir James died in the very year that the first Reform Bill passed, and it was not till after that event that any really great progress was made towards ameliorating the penal laws.

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  • THREE:In the first place, our public works prisons, however excellent for their material results, are so many schools of crime, where for the one honest trade a man learns by compulsion he acquires a knowledge of three or four that are dishonest. I have become acquainted, says a released convict, with more of what is bad and evil, together with the schemes and dodges of professional thieves and swindlers, during the four years I served the Queen for nothing, than I should have done in fifty years outside the prison walls. The association rooms at Dartmoor are as bad as it is possible for anything to be they are really class-rooms in the college of vice, where all are alike students and professors. The present system in most instances merely completes the mans vicious and criminal education, instead of in the slightest degree reforming him.[56] It has been attempted in various ways to obviate this difficulty, by diminishing opportunities of companionship; but the real demoralisation of prison life is probably due less to the actual contact of bad men with one another than to the deadened sense of criminality which they derive from the feeling of numbers, just as from the same cause the danger of drowning is forgotten on the ice. Prisoners in gangs lose all shame of crime, just as men in armies forget their native horror of murder.

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  • THREE: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.The publication of the Delitti e delle Pene interrupted its authors dreams of philosophical calm, by fulfilling his hopes of literary fame. The French encyclop?dists were the first to recognise its merits, and DAlembert, the mathematician, at once predicted for the writer the reward of an immortal[13] reputation. Morellets translation, in which the arrangement, though not the matter of the text, was entirely altered, ran through seven editions in six months, and Beccaria, as has been seen, was only too delighted with the honour thus conferred on him to complain in any way of the liberties taken by the translator with the original.

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  • THREE:To examine and distinguish all the different sorts[120] of crimes and the manner of punishing them would now be our natural task, were it not that their nature, which varies with the different circumstances of times and places, would compel us to enter upon too vast and wearisome a mass of detail. But it will suffice to indicate the most general principles and the most pernicious and common errors, in order to undeceive no less those who, from a mistaken love of liberty, would introduce anarchy, than those who would be glad to reduce their fellow-men to the uniform regularity of a convent.CHAPTER IX. SECRET ACCUSATIONS.

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FORE: From all that has gone before a general theorem may be deduced, of great utility, though little comformable to custom, that common lawgiver of nations. The theorem is this: In order that every punishment may not be an act of violence, committed by one man or by many against a single individual, it ought to be above all things public, speedy, necessary, the least possible in the given circumstances, proportioned to its crime, dictated by the laws.
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FORE:Nor was it only in Europe that Beccarias influence thus prevailed, for as soon as the American Colonies had shaken off their English connection they began to reform their penal laws. When the Revolution began there were in Pennsylvania nearly twenty crimes punishable by death, and within eighteen years of its close the penal code was thoroughly transformed, it being ordained in 1794 that no crime should any longer be capital but murder in the first degree. It is true that this was but a return to the principles adopted by Penn on the settlement of the colony, but Penns penal code was annulled by Queen Anne, and the English Government insisted on a strict adherence to the charter from Charles II., which enjoined the retention of the Statute and the Common Law of England. When, therefore, the new Constitution was formed in 1776, the arguments of Beccaria gave fresh life to the memories of Penn.[25]What is the best way of preventing crimes?
FORE:Ramsay was so far right, that whether a revolution was the only hope for theories like Beccarias or[21] not, the realisation of many of them was one of the first results of that general revolution, which seemed to Ramsay so impossible and undesirable. His letter, as it is a characteristic expression of that common apathy and despair of change which afflict at times even the most sanguine and hopeful, so it is, from its misplaced despair, a good cure for moods of like despondency. For the complete triumph of Beccarias theories about torture, to say nothing of other improvements in law that he lived to witness, is perhaps the most signal instance in history of the conquest of theory over practice. For albeit that his theory was at total variance with the beliefs and ideas of the whole practical school, Beccaria lived to see torture abolished, not only in Lombardy and Tuscany, but in Austria generally, in Portugal and in Sweden, in Russia as well as in France. Yet Ramsays fears at the time were more reasonable than the hopes of Beccaria.
FORE:CHAPTER XIII. PROSECUTIONS AND PRESCRIPTIONS.
    FORE:[27]
THREE: There was a time when nearly all penalties were pecuniary. Mens crimes were the princes patrimony; attempts against the public safety were an object of gain, and he whose function it was to defend it found his interest in seeing it assailed. The object of punishment was then a suit between the treasury, which exacted the penalty, and the criminal: it was a civil business, a private rather than a public dispute, which conferred upon the treasury other rights than those conferred upon it by the calls of the public defence, whilst it inflicted upon the offender other grievances than those he had incurred by the necessity of example. The judge was, therefore, an advocate for the treasury rather than an impartial investigator of the truth, an agent for the Chancellor of the Exchequer rather than the protector and minister of the laws. But as in this system to confess a fault was the same thing as to confess oneself a debtor to the treasury, that being the object of the criminal procedure in those days, so the confession of a crime, and a confession so managed as to favour and not to hurt fiscal interests, became and still remains (effects always outlasting their causes so long) the centre[241] point of all criminal procedure. Without such confession a criminal convicted by indubitable proofs will incur a penalty less than the one legally attached to his crime; and without it he will escape torture for other crimes of the same sort which he may have committed. With it, on the other hand, the judge becomes master of a criminals person, to lacerate him by method and formality, in order to get from him as from so much stock all the profit he can. Given the fact of the crime as proved, confession affords a convincing proof; and, to make this proof still less open to doubt, it is forcibly exacted by the agonies and despair of physical pain; whilst at the same time a confession that is extra-judicial, that is tendered calmly and indifferently, and without the overpowering fears of a trial by torture, is held insufficient for a verdict of guilt. Inquiries and proofs, which throw light upon the fact, but which weaken the claims of the treasury, are excluded; nor is it out of consideration for his wretchedness and weakness that a criminal is sometimes spared from torture, but out of regard for the claims which this entity, now mythical and inconceivable, might lose. The judge becomes the enemy of the accused, who stands in chains before him, the prey of misery, of torments, and the most terrible future; he does not seek to find the truth of a fact, but to find the crime in the prisoner, trying to entrap him, and thinking it to the loss of his own[242] credit if he fail to do so, and to the detriment of that infallibility which men pretend to possess about everything. The evidence that justifies a mans imprisonment rests with the judge; in order that a man may prove himself innocent, he must first be declared guilty: that is called an offensive prosecution; and such are criminal proceedings in nearly every part of enlightened Europe, in the eighteenth century. The real prosecution, the informative onethat is, the indifferent inquiry into a fact, such as reason enjoins, such as military codes employ, and such as is used even by Asiatic despotism in trivial and unimportant casesis of very scant use in the tribunals of Europe. What a complex maze of strange absurdities, doubtless incredible to a more fortunate posterity! Only the philosophers of that time will read in the nature of man the possible actuality of such a system as now exists. Sign Up
THREE: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.CHAPTER VI. IMPRISONMENT. Sign Up
FORE:It is not difficult to go back to the origin of this ridiculous law, because the absurdities themselves that a whole nation adopts have always some connection with other common ideas which the same nation respects. The custom seems to have been derived from religious and spiritual ideas, which have so great an influence on the thoughts of men, on nations, and on generations. An infallible dogma assures us, that the stains contracted by human weakness[156] and undeserving of the eternal anger of the Supreme Being must be purged by an incomprehensible fire. Now, infamy is a civil stain; and as pain and fire take away spiritual and incorporeal stains, why should not the agonies of torture take away the civil stain of infamy? I believe that the confession of a criminal, which some courts insist on as an essential requisite for condemnation, has a similar origin;because in the mysterious tribunal of repentance the confession of sins is an essential part of the sacrament. This is the way men abuse the surest lights of revelation; and as these are the only ones which exist in times of ignorance, it is to them on all occasions that docile humanity turns, making of them the most absurd and far-fetched applications.
FORE:Given the necessity of the aggregation of mankind, and given the covenants which necessarily result from the very opposition of private interests, a scale of offences may be traced, beginning with those which tend directly to the destruction of society, and ending with acts of the smallest possible injustice committed against individual members of it. Between these extremes are comprised all the actions opposed to the public welfare which are called crimes, and which by imperceptible degrees decrease in enormity from the highest to the lowest. If the infinite and obscure combinations of human actions admitted of mathematical treatment, there ought to be a corresponding scale of punishments, varying from the severest to the slightest penalty. If there were an exact and universal scale of crimes and punishments, we should have an approximate and general test by[199] which to gauge the degrees of tyranny and liberty in different governments, the relative state of the humanity or wickedness of different nations. But the wise legislator will rest satisfied with marking out the principal divisions in such a scale, so as not to invert their order, nor to affix to crimes of the first degree punishments due to those of the last.
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FORE:Something, however, occurred more fatal to the reform of our penal laws than even the philosophy of Paley, and that was the French Revolution. Before 1790 there had been 115 capital offences in France; so that to alter the criminal law in England was to follow a precedent of unpleasant auspices. Reform not unnaturally savoured of revolution, and especially a reform of the penal laws. In 1808 Romilly said he would advise anyone, who desired to realise the mischievous effects of the French Revolution in England to attempt some legislative reform on humane and liberal principles. With bitterness he tells the story of a young nobleman, who, addressing him insolently at the bar of the House of Commons, informed him that he for his part was for hanging all criminals. Romilly observed that he supposed he meant punishments should be certain and the laws executed, whatever they were. No, no, was the reply, it isnt that. There is no good done by mercy. They only get worse: I would hang them all up at once. And this represented the prevalent[59] opinion. Windham, in a speech against the Shoplifting Bill, inquired, Had not the French Revolution begun with the abolition of capital punishment in every case? Was such a system as this was to be set up without consideration against that of Dr. Paley![36]
There was only one offence which Paley thought the English law punished too severely, and that was the offence of privately stealing from the person. In all other cases he defended the application of the capital penalty. It was, he thought, the peculiar merit of the English law that it swept into the net every crime which under any possible circumstance might merit death, whilst it only singled out a few[56] cases in each class of crime for actual punishment; so that whilst few really suffered death, the dread and danger of it hung over the crimes of many. The law was not cruel, for it was never meant to be indiscriminately executed, but left a large margin for the exercise of mercy.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]A strange consequence that flows naturally from the use of torture is, that an innocent man is thereby placed in a worse condition than a guilty one, because if both are tortured the former has every alternative against him. For either he confesses the crime and is condemned, or he is declared innocent, having suffered an undeserved punishment. But the guilty man has one chance in his favour, since, if he resist the torture firmly, and is acquitted in consequence, he has exchanged a greater penalty for a smaller one. Therefore the innocent man can only lose, the guilty may gain, by torture.
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