ONE:Torture was definitely and totally abolished in Portugal in 1776, in Sweden in 1786,[24] and in Austria in 1789. In the latter country, indeed, it had been abolished by Maria Theresa sixteen years before in her German and Polish provinces; and the Penal Code of Joseph II., published in 1785, was an additional tribute to the cause of reform. Secret orders were even given to the tribunals to substitute other punishments for hanging, yet so that the general public should be unaware of the change. There was the greatest anxiety that it should not be thought that this change was out of any deference for Beccaria or his school. In the abolition of capital punishment, said Kaunitz, his Majesty pays no regard at all to the principles of modern philosophers, who, in affecting a horror of bloodshed, assert that primitive justice has no right to take from a man that life which Nature only can give him. Our sovereign has only consulted his own conviction, that the punishment he wishes substituted for the capital penalty is more likely to be felt by reason of its duration, and therefore better fitted to inspire malefactors with terror.
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THREE:It was translated into English long ago; but the change in the order of the several chapters and paragraphs, which the work underwent before it was clothed in its final dress, is so great, that the new translation and the old one really constitute quite different books.
THREE:Paley agreed with Beccaria that the certainty of punishment was of more consequence than its severity. For this reason he recommended undeviating impartiality in carrying the laws into execution; he blamed the weak timidity of juries, leading them to be over-scrupulous about the certainty of their evidence, and protested against the maxim that it was better for ten guilty men to escape than for one innocent man to perish. A man who fell by a mistaken sentence might, he argued, be considered as falling for his country, because he was the victim of a system of laws which maintained the safety of the community.
THREE:Against this general uncertainty of punishment, which no severity in the law can affect or make up for, the only certainty of punishment dependent on the law is in the event of conviction. But even this certainty is of a very qualified nature, for it depends on sentiments of due proportion between a crime and its penalty, which in no two men are the same. Every increase of severity in punishment diminishes its certainty, since it holds out to a criminal fresh hopes of impunity from the clemency of his judges, prosecutors, or jury.There was not an anomaly in our old criminal practice which was not based on this theorya theory which had, indeed, its precedent in the old Hebrew law that punished more severely a theft from a field than a theft from a house; and the first writer who protested against it was Eden, afterwards Lord Auckland, who in 1771 published his Principles of Penal Law, one of the best books ever written on the subject. The influence of Beccaria is apparent in Edens work, not only by his direct reference to it, but by his spirit of declared opposition to the actual practice of the law. Two instances of its tendency will suffice. Imprisonment, inflicted by law as a punishment, is not according to the principles of wise legislation. It sinks useful subjects into burthens on the community, and has always a bad effect on their morals; nor can it communicate the benefit of example, being in its nature secluded from the eye of the people. And again: Whatever exceeds simple death is mere cruelty. Every step beyond is a trace of ancient barbarity, tending only to distract the attention of the spectators and to lessen the solemnity of the example. There is no such thing as vindictive justice; the idea is shocking.
