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A still greater honour was the commentary written by Voltaire. The fact that only within a few miles of his own residence a girl of eighteen had been hung for the exposure of a bastard child led Voltaire to welcome Beccarias work as a sign that a period of softer manners and more humane laws was about to dawn upon the worlds history. Should not a people, he argues, who like the French pique themselves on their politeness also pride themselves on their humanity? Should they retain the use of torture, merely because it was an ancient custom, when the experience of England and other countries showed that crimes were not more numerous in countries where it was not in use, and when reason indicated the absurdity of inflicting on a man, before his condemnation, a punishment more horrible than would await his proved guilt? What could be more cruel, too, than the maxim of law that a man who forfeited his life forfeited his estates? What more inhuman than thus to punish a whole family for the crime of an individual, perhaps condemning a wife[14] and children to beg their bread because the head of the family had harboured a Protestant preacher or listened to his sermon in a cavern or a desert? Amid the contrariety of laws that governed France, the object of the criminal procedure to bring an accused man to destruction might be said to be the only law which was uniform throughout the country.

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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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TWO: 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.

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FORE:Such contradictions between the laws of a family and the fundamental laws of a State are a fertile[238] source of other contradictions between public and private morality, giving rise consequently to a perpetual conflict in every individual mind. For whilst private morality inspires fear and subjection, public morality teaches courage and freedom; whilst the former inculcates the restriction of well-doing to a small number of persons indiscriminately, the latter inculcates its extension to all classes of men; and whilst the one enjoins the constant sacrifice of self to a vain idol, called the good of the family (which is frequently not the good of any single member that composes it), the other teaches men to benefit themselves, provided they break not the laws, and incites them, by the reward of enthusiasm, which is the precursor of their action, to sacrifice themselves to the good of their country. Such contradictions make men scorn to follow virtue, which they find so complicated and confused, and at that distance from them, which objects, both moral and physical, derive from their obscurity. How often it happens that a man, in reflecting on his past actions, is astonished at finding himself dishonest. The larger society grows, the smaller fraction of the whole does each member of it become, and the more is the feeling of the commonwealth diminished, unless care be taken by the laws to reinforce it. Societies, like human bodies, have their circumscribed limits, extension beyond which involves inevitably a disturbance of their[239] economy. The size of a State ought apparently to vary inversely with the sensibility of its component parts; otherwise, if both increase together, good laws will find, in the very benefit they have effected, an obstacle to the prevention of crimes. Too large a republic can only save itself from despotism by a process of subdivision, and a union of the parts into so many federative republics. But how effect this, save by a despotic dictator with the courage of Sylla and as much genius for construction as he had for destruction? If such a man be ambitious, the glory of all the ages awaits him; and if he be a philosopher, the blessings of his fellow-citizens will console him for the loss of his authority, even should he not become indifferent to their ingratitude. In proportion as the feelings which unite us to our own nation are weakened, do those for the objects immediately around us gain in strength; and it is for this reason that under the severest despotism the strongest friendships are to be found, and that the family virtues, ever of an exalted character, are either the most common or the only ones. It is evident, therefore, how limited have been the views of the great majority of legislators.
FORE: 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. A contradiction between the laws and the natural feelings of mankind arises from the oaths which are required of an accused, to the effect that he will be a truthful man when it is his greatest interest to be false; as if a man could really swear to contribute to his own destruction, or as if religion would not be silent with most men when their interest spoke on the other side. The experience of all ages has shown that men have abused religion more than any other of the precious gifts of heaven; and for what reason should criminals respect it, when men esteemed as the wisest have often violated it? Too weak, because too far removed from the senses, are[147] for the mass of people the motives which religion opposes to the tumult of fear and the love of life. The affairs of heaven are conducted by laws absolutely different from those which govern human affairs; so why compromise those by these? Why place men in the terrible dilemma of either sinning against God or concurring in their own ruin? The law, in fact, which enforces such an oath commands a man either to be a bad Christian or to be a martyr. The oath becomes gradually a mere formality, thus destroying the force of religious feelings, which for the majority of men are the only pledge of their honesty. How useless oaths are has been shown by experience, for every judge will bear me out when I say that no oath has ever yet made any criminal speak the truth; and the same thing is shown by reason, which declares all laws to be useless, and consequently injurious, which are opposed to the natural sentiments of man. Such laws incur the same fate as dams placed directly in the main stream of a river: either they are immediately thrown down and overwhelmed, or a whirlpool formed by themselves corrodes and undermines them imperceptibly.

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It is not useless to repeat what others have written, namely, that the best method of preventing this crime is to punish the aggressorin other words, the man who gives rise to the dueldeclaring him to be innocent who without his own fault has been constrained to defend that which existing laws do not assure to him, that is, opinion. Injuries that are personal and affect a mans honourthat is, the fair share of favour that he has a right to expect from othersshould be punished with disgrace.
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