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But, to turn from this unpleasant episode of Beccarias life, Catharine II., soon after his return to Milan, invited him to St. Petersburg, to assist in the preparation of her intended code of laws. It would seem from one of Pietro Verris letters that Beccaria was at first inclined to accept the proposal,[15] but it is improbable that any such offer would really have tempted him to exchange Italian suns for Russian snows, even if Kaunitz and Firmian had not resolved to remove the temptation, by making his talents of service at home. This they did by making him Professor of Political Economy in the Palatine School of Milan, in November 1768; and his published lectures on this subject form the largest work he ever wrote.
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TWO:CHAPTER XXVIII. OF INJURIES AND OF HONOUR.If we consult the human heart we shall therein discover the fundamental principles of the real right of the sovereign to punish crimes. More info
TWO: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] More info
TWO:But whatever tendency might have been arising in theory or in practice about this time to mitigate the severity of our laws was destined to receive a dead check from the publication in 1784 and 1785 respectively of two books which deserve historical recollection. The first was Madans Thoughts on Executive Justice, in which the author, adopting Beccarias principle of the certainty of punishment as the best check on crime, advocated an unflinching carrying out of the laws as they stood. It was, says Romilly, a strong and vehement censure upon the judges and the ministers for their mode of administering the law, and for the frequency of the pardons which they granted. It was very much read, and certainly was followed by the sacrifice of many lives.Would you prevent crimes, then cause the laws to be clear and simple, bring the whole force of a nation to bear on their defence, and suffer no part of it to be busied in overthrowing them. Make the laws to favour not so much classes of men as men themselves. Cause men to fear the laws and the laws alone. Salutary is the fear of the law, but fatal and fertile in crime is the fear of one man of another. Men as slaves are more sensual, more immoral, more cruel than free men; and, whilst the latter give their minds to the sciences or to the interests of their country, setting great objects before them as their model, the former, contented with the passing day, seek in the excitement of libertinage a distraction from the nothingness of their existence, and, accustomed to an uncertainty of result in everything, they look upon the result of their crimes as uncertain too, and so decide in favour of the passion that tempts them. If uncertainty of the laws affects a nation, rendered indolent by its climate, its indolence and stupidity is thereby maintained and increased; if it affects a nation, which though fond of pleasure is also full of energy, it wastes that energy in a number of petty cabals and intrigues, which spread distrust in every heart, and make treachery and dissimulation the foundation of prudence; if, again, it affects a[245] courageous and brave nation, the uncertainty is ultimately destroyed, after many oscillations from liberty to servitude, and from servitude back again to liberty. More info
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THREE:The author of the book was a native of Milan, then part of the Austrian dominions, and under the governorship of Count Firmian, a worthy representative of the liberal despotism of Maria Theresa and her chief minister, Kaunitz. Under Firmians administration a period of beneficial reforms began for Lombardy. Agriculture was encouraged, museums and libraries extended, great works of public utility carried on. Even the Church was shorn of her privileges,[2] and before Firmian had been ten years in Lombardy all traces of ecclesiastical immunity had been destroyed; the jurisdiction of the Church, and her power to hold lands in mortmain were restricted, the right of asylum was abolished, and, above all, the Holy Office of the Inquisition. Let these few facts suffice to indicate the spirit of the immediate political surroundings in the midst of which Beccarias work appeared.CHAPTER XL. OF THE TREASURY.

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THREE:The other book was from a man whom above all others our forefathers delighted to honour. This was Archdeacon Paley, who in 1785 published his Moral and Political Philosophy, and dedicated it to the then Bishop of Carlisle. Nor is this fact of the dedication immaterial, for the said Bishop was the father of the future Lord Chief Justice Ellenborough, who enjoys the melancholy fame of having been the inveterate and successful opponent of nearly every movement made in his time, in favour of the mitigation of our penal laws. The chapter on Crimes and Punishments in Paley and the speeches of Lord Ellenborough on the subject in the House of Lords are, in point of fact, the same thing; so that Paleys chapter is of distinct historical importance, as the[55] chief cause of the obstruction of reform, and as the best expression of the philosophy of his day. If other countries adopted Beccarias principles more quickly than our own, it was simply that those principles found no opponents anywhere equal to Archdeacon Paley and his pupil, Lord Ellenborough.Where there is no capital punishment, as in Michigan, a mans innocence may be discovered subsequently to conviction, and justice done to him for the error of the law. Such a case actually happened not long ago in Michigan, where a prisoners innocence[41] was clearly proved after ten years imprisonment. Where capital punishment exists, there is no such hope; nor is there any remedy if, as in the case of Lewis, who was hung in 1831, another man thirty-three years afterwards confesses himself the murderer. It is impossible to preclude all chances of such errors of justice. Illustrative of this is the story of the church organist near Kieff, who murdered a farmer with a pistol he stole from a priest. After his crime he placed the pistol in the sacristy, and then, when he had prevented the priest from giving evidence against him by the act of confession, went and denounced the priest as the culprit. The priest, in spite of his protestations of innocence, was sentenced to hard labour for life; and when, twenty years afterwards, the organist confessed his guilt on his deathbed, and the priests liberation was applied for, it was found that he had died only a few months before.[26]

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THREE:Who can read history without being horror-struck at the barbarous and useless torments which men, who were called wise, in cold blood devised and executed? Who is there but must feel his blood boil, when he regards the thousands of wretches whom misery, either intended or tolerated by the laws (which have always favoured the few and outraged the many), has driven to a desperate return to the original state of nature; when he sees them either accused by men endowed with the same senses, and consequently with the same passions as themselves, of impossible crimes, the fiction of timid ignorance, or guilty of nothing but fidelity to their own principles; and when he sees them lacerated by slow tortures, subject to well-contrived formalities, an agreeable sight for a fanatical multitude? 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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THREE:

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THREE:Men oppose the strongest barriers against open tyranny, but they see not the imperceptible insect, which gnaws them away, and makes for the invading stream an opening that is all the more sure by very reason of its concealment from view.

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THREE: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.The treatise Dei Delitti, instead of throwing any light on the subject of crimes, or on the manner in which they should be punished, tends to establish a system of the most dangerous and novel ideas, which, if adopted, would go so far as to overturn laws received hitherto by the greater part of all civilised nations.

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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.Howards book on the Lazarettos of Europe appeared four years after Paleys work. Although it did not deal directly with crimes, it indirectly treated of their connection with punishment. Howard was able to show that whilst in Middlesex alone 467 persons had been executed in nine years, only six had been executed in Amsterdam; that for a hundred years the average number of executions had been one a year at Utrecht and that for twenty-four years there had not even been one there. The inference therefore was that the diminution of punishment had a direct[58] effect in diminishing crime. Howard also advocated the restriction of capital punishment to cases of murder, arson, and burglary; highwaymen, footpads, and habitual thieves should, he thought, end their days in a penitentiary rather than on the gallows. Even this was a bold proposal, in a state of society yet in bondage to Paley. The second question is, whether it is expedient to place a reward on the head of a known criminal, and to make of every citizen an executioner by arming him against the offender. Either the criminal has fled from his country or he is still within it. In the first case the sovereign encourages the commission of a crime and exposes its author to a punishment, being thereby guilty of an injury and of an usurpation of authority in the dominions of another, and authorising other nations to do the same by himself. In the second case the sovereign displays his own weakness, for he who has the power wherewith to defend himself seeks not to purchase it. Moreover, such an edict upsets all ideas of morality and virtue,[195] which are ever ready to vanish from the human mind at the very slightest breath. Now the laws invite to treachery, and anon they punish it; with one hand the legislator tightens the bonds of the family, of kindred, and of friendship, whilst with the other he rewards whosoever violates and despises them; always in self-contradiction, he at one moment invites to confidence the suspicious natures of men, and at another scatters mistrust broadcast among them. Instead of preventing one crime, he causes a hundred. These are the resources of weak nations, whose laws are but the temporary repairs of a ruined building that totters throughout. In proportion as a nation becomes enlightened, good faith and mutual confidence become necessary, and tend ever more to identify themselves with true policy. Tricks, intrigues, dark and indirect paths, are for the most part foreseen, and the general quickness of all men collectively over-reaches and blunts that of single individuals. The very ages of ignorance, in which public morality inclines men to obey the dictates of private morality, serve as instruction and experience for the ages of enlightenment. But laws which reward treachery and stir up clandestine hostility by spreading mutual suspicion among citizens, are opposed to this union of private and public morality, a union which is so necessary, and to the observance of which individuals might owe their happiness, nations their peace, and[196] the universe a somewhat longer period of quiet and repose from the evils which at present pervade it.We shall see, if we open histories, that laws, which[118] are or ought to be covenants between free men, have generally been nothing but the instrument of the passions of some few men, or the result of some accidental and temporary necessity. They have never been dictated by an unimpassioned student of human nature, able to concentrate the actions of a multitude of men to a single point of view, and to consider them from that point alonethe greatest happiness divided among the greatest number. Happy are those few nations which have not waited for the slow movement of human combinations and changes to cause an approach to better things, after intolerable evils, but have hastened the intermediate steps by good laws; and deserving is that philosopher of the gratitude of mankind, who had the courage, from the obscurity of his despised study, to scatter abroad among the people the first seeds, so long fruitless, of useful truths.
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