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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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Lastly, the surest but most difficult means of preventing crimes is to improve educationa subject too vast for present discussion, and lying beyond the limits of my treatise; a subject, I will also say, too intimately connected with the nature of government for it ever to be aught but a barren field, only cultivated here and there by a few philosophers, down to the remotest ages of public prosperity. A great man, who enlightens the humanity that persecutes him, has shown in detail the chief educational maxims of real utility to mankind; namely, that it consists less in a barren multiplicity of subjects than in their choice selection; in substituting originals for copies in the moral as in the physical phenomena presented by chance or intention to the fresh minds of youth; in inclining them to virtue by the easy path of feeling;[251] and in deterring them from evil by the sure path of necessity and disadvantage, not by the uncertain method of command, which never obtains more than a simulated and transitory obedience.When Beccaria wrote against capital punishment, one great argument against its abolition was its practical universality. It had been abolished in ancient Egypt by king Sabaco,[28] in the best period of the Roman Republics by the Porcian law, and in the time of the Roman Empire by Calo-Johannes.[29] But these cases were too remote from modern times to lend much weight to the general argument. At that time Russia alone of all the countries in the world[44] had, from the accession of the Empress Elizabeth, afforded a practical example of the fact, that the general security of life is not diminished by the withdrawal of the protection of capital punishment. But since that time this truth has become less and less a theory or speculation, and it now rests on the positive experience of no inconsiderable portion of the world. In Tuscany, Holland, Portugal, Russia, Roumania, Saxony, Prussia, Belgium, and in ten of the United States of America, the death penalty has either been abolished or discontinued; and can it be thought that the people of those countries are so indifferent to the safety of their lives as to be content with a less efficient legal protection than is vouchsafed in countries where the protection is death?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] このページの先頭です
ONE:Although these instructions were not so much laws as suggestions of laws, it is obvious what their effect must have been when published and diffused throughout Russia. That they were translated into Latin, German, French, and Italian proves the interest that was taken in Europe by this first attempt to apply the maxims of philosophy to practical government.Who can protect himself from calumny, when it is armed by the strongest shield of tyranny, secrecy? What sort of government can that ever be where in every subject a ruler suspects an enemy, and is obliged for the sake of the general tranquillity to rob each individual of its possession?
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ONE:The voice of a philosopher is too feeble against the noise and cries of so many followers of blind custom, but the few wise men scattered over the face of the earth will respond to me from their inmost hearts; and, amid the many obstacles that keep it from a monarch, should truth perchance arrive in spite of him at his throne, let him know that it comes there attended by the secret wishes of all men; let him know that before his praises the bloody fame of conquerors will be silenced, and that posterity, which is just, will assign him the foremost place among the pacific triumphs of a Titus, an Antonine, or a Trajan.But if penal laws thus express the wide variability of human morality, they also contribute to make actions moral or immoral according to the penalties by which they enforce or prevent them. For not[74] only does whatever is immoral tend to become penal, but anything can be made immoral by being first made penal; and hence indifferent actions often remain immoral long after they have ceased to be actually punishable. Thus the Jews made Sabbath-breaking equally immoral with homicide or adultery, by affixing to each of them the same capital penalty; and the former offence, though it no longer forms part of any criminal code, has still as much moral force against it as many an offence directly punishable by the law.
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TWO:Some courts promise impunity to an accomplice in a serious crime who will expose his companions, an expedient that has its drawbacks as well as its advantages. Among the former must be counted the national authorisation of treachery, a practice which even criminals detest; for crimes of courage are less pernicious to a people than crimes of cowardice, courage being no ordinary quality, and needing only a beneficent directing force to make it conduce to the public welfare, whilst cowardice is more common and contagious, and always more self-concentrated than the other. Besides, a tribunal which calls for the aid of the law-breaker proclaims its own uncertainty and the weakness of the laws themselves. On the other hand, the advantages of the practice are, the prevention[164] of crimes and the intimidation of the people, owing to the fact that the results are visible whilst the authors remain hidden; moreover, it helps to show that a man who breaks his faith to the laws, that is, to the public, is likely also to break it in private life. I think that a general law promising impunity to an accomplice who exposes a crime would be preferable to a special declaration in a particular case, because in this way the mutual fear which each accomplice would have of his own risk would tend to prevent their association; the tribunal would not make criminals audacious by showing that their aid was called for in a particular case. Such a law, however, should accompany impunity with the banishment of the informer. But to no purpose do I torment myself to dissipate the remorse I feel in authorising the inviolable laws, the monument of public confidence, the basis of human morality, to resort to treachery and dissimulation. What an example to the nation it would be, were the promised impunity not observed, and were the man who had responded to the invitation of the laws dragged by learned quibbles to punishment, in spite of the public troth pledged to him! Such examples are not rare in different countries; neither, therefore, is the number small, of those who consider a nation in no other light than in that of a complicated machine, whose springs the cleverest and the strongest move at their will. Cold and insensible to all that forms the delight of[165] tender and sensitive minds, they arouse, with imperturbable sagacity, either the softest feelings or the strongest passions, as soon as they see them of service to the object they have in view, handling mens minds just as musicians do their instruments.

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TWO:Who, then, will be the rightful interpreter of the laws? Will it be the sovereign, the trustee of the actual wills of all, or the judge, whose sole function[127] it is to examine whether such and such a man has committed an illegal act or not?And an advocate to the Parliament of Paris thus expressed himself, in refutation of Beccaria:

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TWO:Almost any number of the Times will illustrate the same thing. Take the account of the Middlesex Sessions of February 24, 1880. There we find the case of a man and woman sentenced to seven and five years penal servitude respectively. What enormities had they committed? The man had stolen three-halfpence from somebody; and the woman, who was a laundress, had stolen two skirts, of the value of six shillings, from a vendor of sheeps trotters. The man had incurred previously seven years penal servitude for a robbery with violence, and the woman had three times in her life been sentenced to imprisonment. But is it just that, because a man has been severely punished once, no rule nor measure shall be observed with him if he incur punishment again? And might not a vendor of sheeps trotters have been satisfied, without a laundress becoming a burden to the State?
THREE:I speak of probability in connection with crimes, which, to deserve punishment, ought to be proved. But the paradox is only apparent, if one reflects that, strictly speaking, moral certainty is only a probability, but a probability which is called certainty, because every sensible person necessarily assents to it, by a force of habit which arises from the necessity of acting, and which is prior to all speculation. The certainty requisite for certifying that a man is a criminal is, therefore, the same that determines everyone in the most important actions of his life. The proofs of a crime may be divided into perfect and imperfect, the former being of such a[136] nature as exclude the possibility of a mans innocence, and the latter such as fall short of this certainty. Of the first kind one proof alone is sufficient for condemnation; of the second, or imperfect kind, as many are necessary as suffice to make a single perfect proof; that is to say, when, though each proof taken separately does not exclude the possibility of innocence, yet their convergence on the same point makes such innocence impossible. But let it be noted that imperfect proofs, from which an accused has it in his power to justify himself and declines to do so, become perfect. This moral certainty of proofs, however, is easier to feel than to define with exactitude: for which reason I think that the best law is one which attaches to the chief judge assessors, taken by lot, not by selection, there being in this case more safety in the ignorance which judges by sentiment than in the knowledge which judges by opinion. Where the laws are clear and precise, the function of a judge consists solely in the certification of fact. If for searching out the proofs of a crime ability and cleverness are required, and if in the presentation of the result clearness and precision are essential, all that is required to judge of the result is simple and common good sense, a faculty which is less fallacious than the learning of a judge, accustomed as he is to wish to find men guilty and to reduce everything to an artificial system borrowed from his studies. Happy the nation where the[137] laws are not a science! It is a most useful law that everyone shall be judged by his equals, because where a citizens liberty and fortune are at stake those sentiments which inequality inspires should have no voice; that feeling of superiority with which the prosperous man regards the unfortunate one, and that feeling of dislike with which an inferior regards his superior, have no scope in a judgment by ones equals. But when the crime in question is an offence against a person of a different rank from the accused, then one half of the judges should be the equals of the accused, the other half equals of the plaintiff, that so, every private interest being balanced, by which the appearances of things are involuntarily modified, only the voice of the laws and of truth may be heard. It is also in accordance with justice that an accused person should have power up to a certain point of refusing judges whom he may suspect; and if he is allowed the exercise of this power for some time without opposition, he will seem to condemn himself. Verdicts should be public, and the proofs of guilt public, in order that opinionwhich is, perhaps, the only bond of society there ismay place a check on outbursts of force and passion, and that the people may say, We are not slaves without defence: a feeling which both inspires them with courage and is as good as a tribute to a sovereign who understands his real interest. I refrain from pointing out other details and precautions which[138] require similar regulations. I should have said nothing at all, had it been necessary for me to say everything.But undoubtedly punishment, although in its origin and present intention vindictive, must exercise a certain preventive force against crime, and this preventive force can scarcely be estimated, for that which is prevented is, of course, not seen. But the efficiency of punishment as a deterrent is proportioned to its certainty, and there is a large element of uncertainty that can never be eliminated. For every malefactor there are two hopes: first, that he may escape detection or apprehension; secondly, that he may escape conviction. That his hopes of impunity are not without reason greater than his fears of punishment the following facts attest.
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THREE:But (he goes on) since it would be an absurd folly to expect this general revolution, this general reconstruction, which could only be effected by very violent means, such as would be at least a very great misfortune for the present generation, and hold out an uncertain prospect of compensation for the next one, every speculative work, like the Dei[20] Delitti e delle Pene, enters into the category of Utopias, of Platonic Republics and other ideal governments; which display, indeed, the wit, the humanity, and the goodness of their authors, but which never have had nor ever will have any influence on human affairs.It may be asked, How far was Beccaria the first to protest against the cruelty and absurdity of torture? To this it must be replied that although actually he was not the first, he was the first to do so with effect. The difference between previous writers on the subject and Beccaria is the difference between a man whose ideas are in advance of those of his age and a man who raises the ideas of his age to a level with his[31] own. So early as the sixteenth century Montaigne, in his Essay on Conscience, had said plainly enough that the putting a man to the rack was rather a trial of patience than of truth; that pain was as likely to extort a false confession as a true one; and that a judge, by having a man racked that he might not die innocent, caused him to die both innocent and racked. Also Grevius Clivensis wrote a work whilst in prison in Amsterdam, in which he sought to prove that torture was iniquitous, fallacious, and unchristian.[17] This was published in 1624; and nearly a century later a Jesuit, Spee, wrote against the use of torture, as also against the cruel practices in force against witches.[18] And in later days Montesquieu, twenty years before Beccaria, had gone so far as to say that, since a civilised nation like England had abandoned torture without evil consequences, it was therefore unnecessary; but he followed the subject to no definite conclusion.