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CHAPTER XXXVII. OF A PARTICULAR KIND OF CRIME.

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THREE:
FORE:Hence both in the state of extreme political liberty and in that of extreme political subjection the ideas of honour disappear or get perfectly confused with others. For in the former the despotism of the laws renders the pursuit of the favour of others of no avail; and in the latter state the despotism of men, by destroying civil existence, reduces everybody to a precarious and temporary personality. Honour, therefore, is one of the fundamental principles of those monarchies that are a mitigated form of despotism, being to them what revolutions are to despotic States, namely, a momentary return to the state of nature, and a reminder to the chief ruler of the condition of primitive equality.
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THREE:CHAPTER VI. IMPRISONMENT.

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FORE:Less dangerous personally than the theological criticism, but more pernicious to reform, was the hostile criticism that at once appeared from the thick phalanx of professional lawyers, the sound-thinking practical men. From whom only two short extracts need be rescued from oblivion, as illustrations of the objections once raised against ideas which have since become the common groundwork of all subsequent legislation, in America as well as in Europe. The first extract is from a work on criminal justice by a lawyer of Provence, who in 1770 wrote as follows:
THREE:Penalties of infamy ought neither to be too common, nor to fall upon too many persons at a time; not too common, because the real and too frequent effects of matters of opinion weaken the force of opinion itself; not too general, because the disgrace of many persons resolves itself into the disgrace of none of them.

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THREE:

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THREE:It is not true that the sciences have always been injurious to mankind; when they were so, it was an inevitable evil. The multiplication of the human race over the face of the earth introduced war, the ruder arts, and the first laws, mere temporary agreements which perished with the necessity that gave rise to them. This was mankinds primitive philosophy, the few elements of which were just, because the indolence and slight wisdom of their framers preserved them from error. But with the multiplication of men there went ever a multiplication of their wants. Stronger and more lasting impressions were, therefore, needed, in order to turn them back from repeated lapses to that primitive state of disunion which each return to it rendered worse. Those primitive delusions, therefore, which peopled the earth with false divinities and created an invisible universe that governed our own, conferred a great benefitI mean a great political benefitupon humanity. Those men were benefactors of their kind, who dared to deceive them and drag them, docile and ignorant, to worship at the altars. By presenting to them objects that lay beyond the scope of sense and fled from their grasp the nearer they seemed to approach themnever despised, because never well understoodthey concentrated their divided passions upon a single object[247] of supreme interest to them. These were the first steps of all the nations that formed themselves out of savage tribes; this was the epoch when larger communities were formed, and such was their necessary and perhaps their only bond. I say nothing of that chosen people of God, for whom the most extraordinary miracles and the most signal favours were a substitute for human policy. But as it is the quality of error to fall into infinite subdivisions, so the sciences that grew out of it made of mankind a blind fanatical multitude, which, shut up within a close labyrinth, collides together in such confusion, that some sensitive and philosophical minds have regretted to this day the ancient savage state. That is the first epoch in which the sciences or rather opinions are injurious.The publication of the Delitti e delle Pene interrupted its authors dreams of philosophical calm, by fulfilling his hopes of literary fame. The French encyclop?dists were the first to recognise its merits, and DAlembert, the mathematician, at once predicted for the writer the reward of an immortal[13] reputation. Morellets translation, in which the arrangement, though not the matter of the text, was entirely altered, ran through seven editions in six months, and Beccaria, as has been seen, was only too delighted with the honour thus conferred on him to complain in any way of the liberties taken by the translator with the original.

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THREE:CHAPTER XXXVII. OF A PARTICULAR KIND OF CRIME.

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THREE:There is a remarkable contradiction between the civil laws, which set so jealous and supreme a guard upon individual life and property, and the laws of so-called honour, which set opinion above everything. This word honour is one of those that have served as the basis for long and brilliant argumentations, without any fixed or permanent idea being attached to it. How miserable is the condition of human minds, more distinctly cognisant of the remotest and least important ideas about the movements of the heavenly bodies, than of those near and important moral notions, which are ever fluctuating and confused, according as the winds of passion impel them and a well-guided ignorance receives and transmits them! But the seeming paradox will vanish, if one considers, that, as objects become confused when too near the eyes, so the too great propinquity of moral ideas easily causes the numerous simple ideas which compose them to become blended together, to the confusion of those clear lines of demarcation demanded by the geometrical spirit, which would fain measure exactly the phenomena of human sensibility. And the wonder will vanish altogether from the impartial student of human affairs, who will suspect that so great a moral machinery and so many restraints are perchance not needed, in order to render men happy and secure.

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  • FORE:In methods of trial the use of torture is contrary to sound reason. Humanity cries out against the practice and insists on its abolition.I do not pretend to diminish the just wrath these crimes deserve; but, in indicating their sources, I think myself justified in drawing one general conclusion, and that is, that no punishment for a crime can[231] be called exactly justthat is, necessaryso long as the law has not adopted the best possible means, in the circumstances of a country, to prevent the crimes it punishes.

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  • FORE: The first class of crimesthat is, the worst, because they are the most injurious to societyare those known as crimes of high treason. Only tyranny and ignorance, which confound words and ideas of the clearest meaning, can apply this name, and consequently the heaviest punishment, to different kinds of crimes, thus rendering men, as in a thousand other cases, the victims of a word. Every crime, be it ever so private, injures society; but every crime does not aim at its immediate destruction. Moral, like physical actions, have their limited sphere of activity, and are differently circumscribed, like all the movements of nature, by time and space; and therefore only a sophistical interpretation, which is generally the philosophy of slavery, can confound what eternal truth has distinguished by immutable differences.

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  • FORE:What should we think of a government that has no other means than fear for keeping men in a country, to which they are naturally attached from the earliest impressions of their infancy? The surest way of keeping them in their country is to augment the relative welfare of each of them. As every effort should be employed to turn the balance of commerce in our own favour, so it is the greatest interest of a sovereign and a nation, that the sum of happiness, compared with that of neighbouring nations, should be greater at home than elsewhere. The pleasures of luxury are not the principal elements in this happiness, however much they may be a necessary remedy to that inequality which increases with a countrys progress, and a check upon the tendency of wealth to accumulate in the hands of a single ruler.[69]

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  • FORE:Others again measure crimes rather by the rank of the person injured than by their importance in regard to the public weal. Were this the true measure of crimes, any act of irreverence towards the Supreme Being should be punished more severely than the assassination of a monarch, whereas the superiority of His nature affords an infinite compensation for the difference of the offence.

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  • FORE:Or to take a stronger case. A deserter from the ranks escapes to his home, breaks into it at night, robs an infirm father of all the savings he has provided for his old age, and in a struggle for their possession so injures him that he dies. Must the law disclaim all indignation, all resentment, in the punishment it inflicts, and say to such a ruffian that it only deals hard with him in order to warn others by his example, and with the pious hope of making a good man of him in the future? If resentment is ever just, is it wrong to give it public expression? If it is natural and right in private life, why should it be a matter of shame in public life? If there is such a thing as just anger for a single man, does it become unjust when distributed among a million?Two other fatal consequences flow from the cruelty of punishments, and are contrary to their very purpose, the prevention of crimes. The first is, that it is not so easy to preserve the essential proportion between crime and punishment, because, however much a studied cruelty may diversify its forms, none of them can go beyond the extreme limit of endurance which is a condition of the human organisation and sensibility. When once this extreme limit is attained, it would be impossible to invent such a corresponding increase of punishment for still more injurious and atrocious crimes as would be necessary to prevent them. The other consequence is, that impunity itself arises from the severity of punishments. Men are restrained within limits both in good and evil; and a sight too atrocious for humanity can only be a passing rage, not a constant system, such as the laws ought to be; if the latter are really cruel, either they are changed, or themselves give rise to a fatal impunity.

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THREE:As a matter of fact the law affords a very clear[81] proof, that its real purpose is to administer retributive justice and that punishment has no end beyond itself, by its careful apportionment of punishment to crime, by its invariable adjustment between the evil a man has done and the evil it deals out to him in return. For what purpose punish offences according to a certain scale, for what purpose stay to measure their gravity, if merely the prevention of crime is the object of punishment? Why punish a slight theft with a few months imprisonment and a burglary with as many years? The slight theft, as easier to commit, as more tempting accordingly, should surely have a harder penalty affixed to it than a crime which, as it is more difficult, is also less probable and less in need of strong counter-inducements to restrain it. That the law never reasons in this way is because it weighs offences according to their different degrees of criminality, or, in other words, because it feels that the fair retaliation for the burglary is not a fair retaliation for the theft.
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FORE: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.If blind ignorance is less pernicious than confused half-knowledge, since the latter adds to the evils of ignorance those of error, which is unavoidable in a narrow view of the limits of truth, the most precious gift that a sovereign can make to himself or to his people is an enlightened man as the trustee and guardian of the sacred laws. Accustomed to see the truth and not to fear it; independent for the most part of the demands of reputation, which are never completely satisfied and put most mens virtue to a trial; used to consider humanity from higher points of view; such a man regards his own nation as a family of men and of brothers, and the distance between the nobles and the people seems to him so[249] much the less as he has before his mind the larger total of the whole human species. Philosophers acquire wants and interests unknown to the generality of men, but that one above all others, of not belying in public the principles they have taught in obscurity, and they gain the habit of loving the truth for its own sake. A selection of such men makes the happiness of a people, but a happiness which is only transitory, unless good laws so increase their number as to lessen the probability, always considerable, of an unfortunate choice.
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If we would bring to the study of Beccarias treatise the same disposition of mind with which he wrote it, we must enter upon the subject with the freest possible spirit of inquiry, and with a spirit of doubtfulness, undeterred in its research by authority however venerable, by custom however extended, or by time however long. It has been from too great reverence for the wisdom of antiquity that men in all ages have consigned their lives and properties to the limited learning and slight experience of generations which only lived for themselves and had no thought of binding posterity in the rules they thought suitable to their own times. Beccaria sounded the first note of that appeal from custom to reason in the dominion of law which has been, perhaps, the brightest feature in the history of modern times, and is still transforming the institutions of all countries.Would you prevent crimes, then cause the laws to be clear and simple, bring the whole force of a nation to bear on their defence, and suffer no part of it to be busied in overthrowing them. Make the laws to favour not so much classes of men as men themselves. Cause men to fear the laws and the laws alone. Salutary is the fear of the law, but fatal and fertile in crime is the fear of one man of another. Men as slaves are more sensual, more immoral, more cruel than free men; and, whilst the latter give their minds to the sciences or to the interests of their country, setting great objects before them as their model, the former, contented with the passing day, seek in the excitement of libertinage a distraction from the nothingness of their existence, and, accustomed to an uncertainty of result in everything, they look upon the result of their crimes as uncertain too, and so decide in favour of the passion that tempts them. If uncertainty of the laws affects a nation, rendered indolent by its climate, its indolence and stupidity is thereby maintained and increased; if it affects a nation, which though fond of pleasure is also full of energy, it wastes that energy in a number of petty cabals and intrigues, which spread distrust in every heart, and make treachery and dissimulation the foundation of prudence; if, again, it affects a[245] courageous and brave nation, the uncertainty is ultimately destroyed, after many oscillations from liberty to servitude, and from servitude back again to liberty.CHAPTER IV. THE PROBLEMS OF PENOLOGY.Even when Paris was reached, and Beccaria and Alessandro were warmly welcomed by DAlembert, Morellet, Diderot, and Baron Holbach, the homesickness remained. You would not believe, says Beccaria to his wife, the welcomes, the politeness, the demonstrations of friendship and esteem, which they have shown to me and my companion. Diderot, Baron Holbach, and DAlembert especially enchant us. The latter is a superior man, and most simple at the same time. Diderot displays enthusiasm and good humour in all he does. In short, nothing is wanting to me but yourself. All do their best to please me, and those who do so are the greatest men in Europe. All of them deign to listen to me, and no one shows the slightest air of superiority. Yet[24] Morellet tells us that even on arrival Beccaria was so absorbed in melancholy, that it was difficult to get four consecutive words from his mouth.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.
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