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Whoever, therefore, shall wish to honour me with his criticisms, I would have begin with a thorough comprehension of the purpose of my worka purpose which, so far from diminishing legitimate authority, will serve to increase it, if opinion can effect more over mens minds than force, and if the mildness and humanity of the government shall justify it in the eyes of all men. The ill-conceived criticisms that have been published against this book are founded on confused notions, and compel me to interrupt for a moment the arguments I was addressing to my enlightened readers, in order to close once for all every door against the misapprehensions of timid bigotry or against the calumnies of malice and envy.

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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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    • ONE:But at least, it will be thought, we have by this time arrived at some principles about punishment which correspond with the eternal truths of equity. Is not Equality, for instance, one of the primary essentials of punishment? Does it not stand as a penal axiom with almost the sanction of a moral law that all men should suffer equally for equal crimes? Yet, if by equality be meant the same punishment, the same kind of labour, the same term of servitude, the same pecuniary fineand this is the only thing it can meanwhat more obvious than that the same punishment for rich and poor, for young and old, for strong and weak, for men and women, for educated and uneducated, will bring to the constitution of a penal code the utmost inequality the imagination can conceive? Beccaria insists that the law can do no more than assign the same extrinsic punishment to the same crime; that is, the same punishment, regardless of all other external considerations; and he calls for the infliction of the same punishment on the nobleman as on the commoner. Let it be so; but the same punishment is no longer an equal one; and hence from this very demand for equality springs the demand for its very opposite, for what Bentham calls the equability of punishment; that is, consideration[77] for the different circumstances of individual criminals. So that the same nominal punishment not being the same real one, equality of punishment appears to be a chimera, and the law, which punishes, say, a distinguished officer less severely than it punishes a costermonger for the same crime, errs perhaps really less from actual equality than if it condemned both to precisely the same punishment.

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    TWO:CHAPTER XXXVIII. FALSE IDEAS OF UTILITY.If pleasure and pain are the motors of sensitive beings, if the invisible lawgiver of humanity has decreed rewards and punishments as one of the motives to impel men to even their noblest endeavours, the inexact distribution of these motives will give rise to that contradiction, as little noticed as it is of common occurrence, namely, that the laws punish crimes which are entirely of their own creation. If an equal penalty is attached to two crimes of unequal injury to society, the greater crime of the two, if it promise a greater advantage than the other, will have no stronger motive in restraint of its perpetration.[197] Whoever, for example, sees the same punishment of death decreed for the man who kills a pheasant and the man who slays his fellow or falsifies an important document, will draw no distinction between such crimes; and thus moral sentiments, the product only of many ages and of much bloodshed, the slowest and most difficult attainment of the human mind, dependent, it has been thought, on the aid of the most sublime motives and on a parade of the gravest formalities, will be destroyed and lost.

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    THREE:What is the best way of preventing crimes?

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    THREE:1. When the proofs of a fact are dependent one on anotherthat is to say, when each single proof rests on[135] the weight of some otherthen the more numerous the proofs are, the smaller is the probability of the fact in question, because the chances of error in the preliminary proofs would increase the probability of error in the succeeding ones.

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    THREE:Lastly, some have thought that the gravity of an acts sinfulness should be an element in the measure of crimes. But an impartial observer of the true relations between man and man, and between man[201] and God, will easily perceive the fallacy of this opinion. For the former relationship is one of equality; necessity alone, from the clash of passions and opposing interests, having given rise to the idea of the public utility, the basis of human justice. But the other relationship is one of dependence on a perfect Being and Creator, who has reserved to Himself alone the right of being at the same time legislator and judge, and can alone unite the two functions without bad effects. If He has decreed eternal punishments to those who disobey His omnipotence, what insect shall dare to take the place of Divine justice, or shall wish to avenge that Being, who is all-sufficient to Himself, who can receive from things no impression of pleasure nor of pain, and who alone of all beings acts without reaction? The degree of sinfulness in an action depends on the unsearchable wickedness of the heart, which cannot be known by finite beings without a revelation. How, then, found thereon a standard for the punishment of crimes? In such a case men might punish when God pardons, and pardon when God punishes. If men can act contrary to the Almighty by offending Him, they may also do so in the punishments they inflict. 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.

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    THREE:It is well known that Lord Tenterden refused ever to sit again in the House of Lords if the Reform Bill became law, and that he predicted that that measure would amount to the political extinction of the Upper House. As regards the history of our criminal law Lord Tenterden was right, for the period of long pauses had passed away, and rapid changes were made with but short intervals of breathing-time. From the year the Reform Bill passed the school of Beccaria and Bentham achieved rapid successes in England. In 1832 it ceased to be capital to steal a horse or a sheep, in 1833 to break into a house, in 1834 to return prematurely from transportation, in 1835 to commit sacrilege or to steal a letter. But[67] even till 1837 there were still 37 capital offences on the statute-book; and now there are only two, murder and treason. Hanging in chains was abolished in 1834; the pillory was wholly abolished in 1837; and the same year Ewart, after many years struggle, obtained for prisoners on trial for felony the right (still merely a nominal one)[39] of being defended by counsel.CHAPTER XVII. BANISHMENT AND CONFISCATIONS.
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  • FORE: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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  • FORE: There remain two questions for me to examine: the first, whether asylums of refuge are just, and whether international agreements of extradition are expedient or not. There should be no spot within the boundaries of any country independent of the laws. Every citizen should be followed by their power, as every substance is followed by its shadow. There is only a difference of degree between impunity and the right of asylum; and as the effective influence of punishment consists more in its inevitability than in its violence, asylums do more to invite to crimes than punishments do to deter from them. The multiplication of asylums is the formation of so many petty sovereignties; for where there are no laws to command, there it is easy for new laws, opposed to the general laws of a country, to be formed, and consequently for a spirit opposed to that of the whole collective social body to arise. All history shows that from asylums have issued great revolutions in States and in the opinions of mankind.
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  • FORE: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.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.
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  • FORE: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.Sir Robert Peel, who was the first Ministerial law reformer, succeeded in getting the death penalty repealed for several crimes which were practically obsolete, but forty kinds of forgery alone still remained capital offences.
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    • THREE:One consequence of these last reflections is, that without writing no society will ever assume a fixed form of government, wherein the power shall belong to[131] the social whole, and not to its parts, and wherein the laws, only alterable by the general will, shall not suffer corruption in their passage through the crowd of private interests. Experience and reason have taught us, that the probability and certainty of human traditions diminish in proportion to their distance from their source. So that if there be no standing memorial of the social contract, how will laws ever resist the inevitable force of time and passion?Analogy between crime and punishment is another idea which, except in the case of death for death, has been relegated from the practice of most criminal laws. Yet the principle has in its favour the authority of Moses, the authority of the whole world and of all time, that punishment should, if possible, resemble the crime it punishes in kind; so that a man who blinds another should be blinded himself, he who disfigures another be disfigured himself. Thus in the old-world mythology, Theseus and Hercules inflict on the evil powers they conquer the same cruelties their victims were famous for; Termenus having his skull broken because with his own skull he broke the heads of others; and Busiris, who sacrificed others, being himself sacrificed in his turn. Both Montesquieu and Beccaria also advocate analogy in punishment, and so does Bentham to some degree; there being, indeed, few greater contrasts between the theories of the great English jurist and modern English practice than that the former should not have deprecated some suffering by burning as a penalty analogous to the crime of arson, and that he should have advised the transfixing of a forgers hand or of a calumniators tongue[79] by an iron instrument before the public gaze as good and efficient punishments for forgery and slander.
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    THREE: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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    When the visit to Paris was contemplated it was a question of either not going at all or of leaving Teresa behind; there was not money enough for her to travel too. For Beccaria, though the son of a marquis and of noble origin, was not rich. When in his twenty-third year he married Teresa, his father was so opposed to the match on the score of insufficiency of fortune, that for some time after the marriage he refused to receive the young couple into his house, and they lived in considerable poverty. Appeal had even been made to the Government itself to break off, if possible, so unsuitable a match; but the lovers had their own way, of course, in the end, though it was not for some time that the domestic quarrel was healed, and then, it appears, through the mediation of Pietro Verri.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.In France Beccarias book became widely popular, and many writers helped to propagate his ideas, such as Servan, Brissot, Lacretelle, and Pastoret. Lacretelle attributes the whole impulse of criminal law reform to Beccaria, while regretting that Montesquieu had not said enough to attract general attention to the subject. His book is said to have so changed the spirit of the old French criminal tribunals, that, ten years before the Revolution, they bore no resemblance to their former selves. All the younger magistrates gave their judgments more according to the principles of Beccaria than according to the text of the law.[21][35] The result of the agitation appeared in the Royal Ordinances of 1780 and 1788, directed to the diminution of torture, the only reforms which preceded the Revolution. It is said that the last time anyone was tortured in France was in the year 1788, the last year of the ancien rgime. At the very beginning of the Revolution more than a hundred different offences ceased to incur the penalty of death.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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