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Our laws prohibit suggestive (leading) questions in a lawsuit: those, that is (according to the doctors of law), which, instead of applying, as they should do,[145] to the genus in the circumstances of a crime, refer to the species; those, in other words, which from their immediate connection with a crime suggest to the accused a direct answer. Questions, according to the criminal lawyers, ought, so to speak, to envelop the main fact spirally and never to attack it in a direct line. The reasons for this method are, either that an answer may not be suggested to the accused which may place him face to face with the charge against him, or perhaps because it seems unnatural for him directly to criminate himself. But, whichever of these reasons it may be, the contradiction is remarkable between the existence of such a custom and the legal authorisation of torture; for what interrogatory can be more suggestive than pain? The former reason applies to the question of torture, because pain will suggest to a strong man obstinate silence, in order that he may exchange the greater penalty for the lesser, whilst it will suggest to a weak man confession, in order that he may escape from present torment, which has more influence over him than pain which is to come. The other reason evidently applies too, for if a special question leads a man to confess against natural right, the agonies of torture will more easily do the same. But men are more governed by the difference of names than by that of things.

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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.

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THREE:But punishment bears much the same relation to crime in the country at large that it does in the metropolis. Let one year be taken as a fair sample of all. The total number of indictable offences of all kinds reported to the police in 1877-8 was 54,065. For these offences only 24,062 persons were apprehended. Of these latter only 16,820 were held to bail or committed for trial; and of these again 12,473 were convicted and punished.[52] So that, though the proportion of convictions to the number of prisoners who come to trial is about 75 per cent., the proportion of convictions, that is, of punishments, to the number of crimes committed is so low as 23 per cent. Of the 54,065 crimes reported to the police in one year 41,592 were actually committed with impunity; and[95] thus the proportion which successful crime of all sorts bears to unsuccessful is rather more than as four to one.[53] So that there is evident truth in what a good authority has said: Few offences comparatively are followed by detection and punishment, and with a moderate degree of cunning an offender may generally go on for a long time with but feeble checks, if not complete impunity.[54]
FORE:In order that a punishment may attain its object, it is enough if the evil of the punishment exceeds the advantage of the crime, and in this excess of evil the certainty of punishment and the loss of the possible advantage from the crime ought to be considered as part; all beyond this is superfluous and consequently tyrannical. Men regulate their conduct by the reiterated impression of evils they know, not by reason of evils they ignore. Given two nations, in one of which, in the scale of punishments proportioned[167] to the scale of crimes, the severest penalty is perpetual servitude, and in the other the wheel; I say that the former will have as great a dread of its severest punishment as the latter will have; and if there be any reason for transporting to the former country the greater penalties of the other, the same reasoning will serve for increasing still more the penalties of this latter country, passing imperceptibly from the wheel to the slowest and most elaborate tortures, nay, even to the last refinements of that science which tyrants understand only too well. The reason for translating afresh Beccarias Dei Delitti e delle Pene (Crimes and Punishments) is, that it is a classical work of its kind, and that the interest which belongs to it is still far from being merely historical.
TWO: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.
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THREE:It would be possible to distinguish a case of fraud from a grave fault, a grave fault from a light one, and this again from perfect innocence; then to affix to the first the penalties due for crimes of falsification; to the second lesser penalties, but with the loss of personal liberty; and, reserving for the last degree the free choice of the means of recovery, to deprive the third degree of such liberty, whilst leaving it to a mans creditors. But the distinction between grave and light should be fixed by the blind impartiality of the laws, not by the dangerous and arbitrary wisdom of a judge. The fixings of limits are as necessary in politics as in mathematics, equally in the measurement[219] of the public welfare as in the measurement of magnitudes.[68]

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THREE: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.

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FORE:Another principle would serve admirably to draw still closer the important connection between a misdeed and its punishment, and that is, that the latter should as far as possible conform to the nature of the crime. This analogy facilitates marvellously the contrast that ought to exist between the impulse to[188] the crime and the counter-influence of the punishment, the one, that is, diverting the mind and guiding it to an end quite different from that to which the seductive idea of transgressing the law endeavours to lead it.
THREE:Thus it has come about that, after steady opposition and fierce conflict, English law finds itself at the very point which Johnson and Goldsmith had attained a hundred years before; so true is it, as Beccaria has said, that the enlightenment of a nation is always a century in advance of its practice. The victory has conclusively been with the ultra-philosophers, as they were once called, with the speculative humanitarians, for whom good Lord Ellenborough had so honest a contempt. Paleys philosophy has long since been forgotten, and if it affords any lesson at all, it lies chiefly in a comparison between his gloomy predictions and the actual results of the changes he deprecated. The practical and professional school of law has yielded on all the most important points to the dissolving influence of Beccarias treatise; and the growing demand for increasing the security of human life by the institution[68] of a penalty, more effective because more certain, than that at present in force, points to the still further triumph of Beccarias principles, likely before long to mark the progress of his influence in England.

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THREE: It is better to prevent crimes than to punish them. This is the chief aim of every good system of legislation, which is the art of leading men to the greatest possible happiness or to the least possible misery,[243] according to calculation of all the goods and evils of life. But the means hitherto employed for this end are for the most part false and contrary to the end proposed. It is impossible to reduce the turbulent activity of men to a geometrical harmony without any irregularity or confusion. As the constant and most simple laws of nature do not prevent aberrations in the movements of the planets, so, in the infinite and contradictory attractions of pleasure and pain, disturbances and disorder cannot be prevented by human laws. Yet this is the chimera that narrow-minded men pursue, when they have power in their hands. To prohibit a number of indifferent acts is not to prevent the crimes that may arise from them, but it is to create new ones from them; it is to give capricious definitions of virtue and vice which are proclaimed as eternal and immutable in their nature. To what should we be reduced if everything had to be forbidden us which might tempt us to a crime? It would be necessary to deprive a man of the use of his senses. For one motive that drives men to commit a real crime there are a thousand that drive them to the commission of those indifferent acts which are called crimes by bad laws; and if the likelihood of crimes is proportioned to the number of motives to commit them, an increase of the field of crimes is an increase of the likelihood of their commission. The majority of laws are nothing but[244] privileges, or a tribute paid by all to the convenience of some few.

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THREE: I lead a tranquil and solitary life, if a select company of friends in which the heart and mind are in continual movement can be called solitude. This is my consolation, and prevents me feeling in my own country as if I were in exile.CHAPTER XXXV. SUICIDE AND ABSENCE.

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THREE:Of all the attacks which the publication of the Dei Delitti provoked, the bitterest came naturally from a theological pen. At the very time that Beccarias work appeared, the Republic of Venice was occupied in a violent contest touching the Inquisitorial Council of Ten; and imagining that Beccarias remarks about secret accusations had been directed against the procedure of their famous[16] tribunal, whilst they attributed the work to a Venetian nobleman called Quirini, they forbade its circulation under pain of death. It was on their behalf and with this belief that the Dominican Padre, Facchinei, took up his pen and wrote a book, entitled, Notes and Observations on the Dei Delitti, in which he argued, among other things, not only that secret accusations were the best, cheapest, and most effective method of carrying out justice, but that torture was a kind of mercy to a criminal, purging him in his death from the sin of falsehood.Divine justice and natural justice are in their essence immutable and constant, because the relation between similar things is always the same; but human or political justice, being nothing more than a relation between a given action and a given state of society, may vary according as such action becomes necessary or useful to society; nor is such justice easily discernible, save by one who analyses the complex and very changeable relations of civil combinations. When once these principles, essentially distinct, become confused, there is no more hope of sound reasoning about public matters. It appertains to the theologian to fix the boundaries between the just and the unjust, in so far as regards the intrinsic goodness or wickedness of an act; to fix the relations between the politically just and unjust appertains to the publicist; nor can the one object cause any detriment to the other, when it is obvious how the virtue that is purely political ought to give place to that immutable virtue which emanates from God.

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THREE:CHAPTER XXXVIII. FALSE IDEAS OF UTILITY.Yet Lord Ellenborough was one of the best judges known to English history; he was, according to his biographer, a man of gigantic intellect, and one of the best classical scholars of his day; and if he erred, it was with all honesty and goodness of purpose. The same must be said of Lord Chief Justice Tenterdens opposition to any change in the law of forgery. His great merits too as a judge are matter of history, yet when the Commons had passed the bill for the abolition of capital punishment for forgery, Lord Tenterden[65] assured the House of Lords that they could not without great danger take away the punishment of death. When it was recollected how many thousand pounds, and even tens of thousands, might be abstracted from a man by a deep-laid scheme of forgery, he thought that this crime ought to be visited with the utmost extent of punishment which the law then wisely allowed. The House of Lords again paused in submission to judicial authority.

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  • FORE:Such was legal opinion generally as expressed by its ablest representatives with respect to the due punishment for pocket-picking not a hundred years ago. It is easy now to smile at such errors, and, at the barren waste of wisdom spent in their defence, but what weight after that can be attached, on subjects of the general policy of the law, to the opinion of its chief professors? Can it be too much regretted that Lord Chief Justice Ellenborough should have sacrificed to his own authority, whilst alive, the authority of all judges ever destined to succeed him?

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  • FORE:But there was one great fallacy, pervading our whole criminal law, which Blackstone left undetected and untouched. This was, that the severity of punishment must be augmented in proportion to the increase of temptation, and that the measure of the guilt of a crime lay in the facility with which it might be committed. Among crimes of an equal malignity, says Blackstone, those [deserve most punishment, as most injurious] which a man has the most frequent and easy opportunities of committing, which cannot so easily be guarded against as others, and which, therefore, the offender has the strongest inducement to commit. And on this principle he finds it reasonable, that, while the theft of a pocket-handkerchief should be a capital crime, the theft of a load of hay should only involve transportation.

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  • FORE: 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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  • FORE: Smuggling is a real crime against the sovereign and the nation; but its punishment should not be one of disgrace, because its commission incurs no disgrace in public opinion.Laws are the conditions under which men, leading independent and isolated lives, joined together in society, when tired of living in a perpetual state of war, and of enjoying a liberty which the uncertainty of its tenure rendered useless. Of this liberty they voluntarily sacrificed a part, in order to enjoy the remainder in security and quiet. The sum-total of all these portions of liberty, sacrificed for the good of each individually, constitutes the sovereignty of a nation, and the sovereign is the lawful trustee and administrator of these portions. But, besides forming this trust-fund, or deposit, it was necessary to protect it from the encroachments of individuals, whose aim it ever is not only to recover from the fund their own deposit, but to avail themselves of that contributed by others. Sensible motives, were therefore wanted to divert the despotic will of the individual from re-plunging into their primitive chaos the laws of society.[123] Such motives were found in punishments, established against transgressors of the laws; and I call them sensible motives, because experience has shown that the majority of men adopt no fixed rules of conduct, nor avoid that universal principle of dissolution, observable alike in the moral as in the physical world, save by reason of motives which directly strike the senses and constantly present themselves to the mind, counterbalancing the strong impressions of private passions, opposed as they are to the general welfare; not eloquence, nor declamations, nor the most sublime truths have ever sufficed to curb the passions for any length of time, when excited by the lively force of present objects.

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  • FORE:Why then did Pietro Verri not write it himself? The answer would seem to be, out of deference for the position and opinions of his father. It was some time later that Gabriel defended the use of torture in the Milanese Senate, and Pietro wrote a work on torture which he did not publish in his fathers lifetime. It was probably due also to the fathers position that Alessandro held his office of Protector of the Prisoners, so that there were obvious reasons which prevented either brother from undertaking the work in question.In the second place, a large proportion of the habitual criminal class is formed of weak-minded or imbecile persons, notorious for the repeated commission of petty thefts, crimes of violence and passion, and confessed to be not amenable to the ordinary influences of self-interest or fear of punishment.[57] It is now proposed to separate this class of prisoners from others; but is punishment operative on them at all? Is not their proper place an asylum?

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  • FORE:It certainly should moderate our reverence for ancestral wisdom to find even a man like Fielding, the novelist, speaking, in his Charge to the Grand Jury of Middlesex, of the pillory and the loss of a mans ears as an extremely mild punishment for a bad case of libel, or declaring our punishments of that time to be the mildest and most void of terror of any other in the known world. Yet Fielding recognised several of the true principles of punishment. He attributed the increase of crime to the great abuse of pardons, which, he said, had brought many more men to the gallows than they had saved from it. He also advocated the diminution of the number of executions, their greater privacy and solemnity, whilst he recommended their following as closely as possible on conviction, that pity for the criminal might be lost in detestation for his crime.[33]

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THREE:CHAPTER XXXIII. OF THE PUBLIC TRANQUILLITY.
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FORE: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.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.
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Whoever, then, I repeat, will honour me with his criticisms, let him not begin by supposing me to advocate principles destructive of virtue or religion, seeing that I have shown that such are not my principles; and instead of his proving me to be an infidel or a[116] rebel, let him contrive to find me a bad reasoner or a shortsighted politician; but let him not tremble at every proposition on behalf of the interests of humanity; let him convince me either of the inutility or of the possible political mischief of my principles; let him prove to me the advantage of received practices. I have given a public testimony of my religion and of my submission to my sovereign in my reply to the Notes and Observations; to reply to other writings of a similar nature would be superfluous; but whoever will write with that grace which becomes honest men, and with that knowledge which shall relieve me from the proof of first principles, of what character soever, he shall find in me not so much a man who is eager to reply as a peaceable lover of the truth.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.The knowledge of the true relations between a sovereign and his subjects, and of those between different nations; the revival of commerce by the light of philosophical truths, diffused by printing; and the silent international war of industry, the most humane and the most worthy of rational menthese are the fruits which we owe to the enlightenment of this century. But how few have examined and combated the cruelty of punishments, and the irregularities of criminal procedures, a part of legislation so[119] elementary and yet so neglected in almost the whole of Europe; and how few have sought, by a return to first principles, to dissipate the mistakes accumulated by many centuries, or to mitigate, with at least that force which belongs only to ascertained truths, the excessive caprice of ill-directed power, which has presented up to this time but one long example of lawful and cold-blooded atrocity! And yet the groans of the weak, sacrificed to the cruelty of the ignorant or to the indolence of the rich; the barbarous tortures, multiplied with a severity as useless as it is prodigal, for crimes either not proved or quite chimerical; the disgusting horrors of a prison, enhanced by that which is the cruellest executioner of the miserablenamely, uncertainty;these ought to startle those rulers whose function it is to guide the opinion of mens minds.
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