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But the man who sees in prospect a great number of years, or perhaps the whole of his life, to be passed in servitude and suffering before the eyes of fellow-citizens with whom he is living in freedom and friendship, the slave of those laws which had once protected him, makes a useful comparison of all these circumstances with the uncertain result of his crimes and with the shortness of the time for which he would enjoy their fruits. The ever present example of those whom he actually sees the victims of their own imprudence, impresses him much more strongly than the sight of a punishment which hardens rather than corrects him.

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If it be said that a second conviction makes it necessary for society to protect itself by stronger measures against a member who thus defies its power, it may be asked whether this is not an application of exactly the same reasoning to the crimes of individuals, which as applied to the crimes of all men generally led our ancestors so far astray in the distribution of their punishments. Nothing could have been more plausible than their reasoning: The punishment in vogue does not diminish the crime, therefore increase the punishment. But nothing could have[92] been less satisfactory than the result, for with the increase of punishment that of crime went hand in hand. The same reasoning is equally plausible in the case of individuals, with the same perplexing question resulting in the end: How comes it that, in spite of the threatened greater punishment, the majority of criminals are yet old offenders?Persons guilty of lesser crimes are usually either punished in the obscurity of a prison, or transported, as an example to nations who have given no offence, to a distant and therefore almost useless servitude. Since the gravest crimes are not those which men are tempted to commit on the spur of the moment, the public punishment of a great misdeed will be regarded by most men as strange and of impossible occurrence; but the public punishment of lighter crimes, to which mens thoughts more readily incline, will make an impression, which, at the same time that it diverts the mind from them, will restrain it still more from crimes of greater gravity. Punishments should not only be proportioned to one another and to crimes in point of force, but also in the mode of their infliction.
ONE: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. FORE:The death penalty therefore is not a right; I have proved that it cannot be so; but it is a war of a nation against one of its members, because his annihilation is deemed necessary and expedient. But if I can show that his death is neither necessary nor expedient, I shall have won the cause of humanity. FORE: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:It is, however, probable that the frequency of any crime bears little or no relation to the punishment affixed to it. Every criminal begins a new career, in which he thinks less of the nature of his punishment than of his chances of eluding it. Neither tradition nor example count with him for much in his balance of the chances in his own favour. The law can never be so certain in its execution as it is uncertain in its application, and it is the examples of impunity, not of punishment, to which men turn when they violate the law. So that whether the punishment for murder be an excruciating death, as in ancient Rome, or a mere fine, as in ancient England, the motives for escape are always the same, the means to effect it are always the same, and the belief in his power to effect it is correspondingly powerful in every criminal guilty of homicide.
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THREE:In order that a punishment may attain its object, it is enough if the evil of the punishment exceeds the advantage of the crime, and in this excess of evil the certainty of punishment and the loss of the possible advantage from the crime ought to be considered as part; all beyond this is superfluous and consequently tyrannical. Men regulate their conduct by the reiterated impression of evils they know, not by reason of evils they ignore. Given two nations, in one of which, in the scale of punishments proportioned[167] to the scale of crimes, the severest penalty is perpetual servitude, and in the other the wheel; I say that the former will have as great a dread of its severest punishment as the latter will have; and if there be any reason for transporting to the former country the greater penalties of the other, the same reasoning will serve for increasing still more the penalties of this latter country, passing imperceptibly from the wheel to the slowest and most elaborate tortures, nay, even to the last refinements of that science which tyrants understand only too well.

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THREE:The mind of man offers more resistance to violence and to extreme but brief pains than it does to time and to incessant weariness; for whilst it can, so to speak, gather itself together for a moment to repel the former, its vigorous elasticity is insufficient to resist the long and repeated action of the latter. In the[174] case of capital punishment, each example presented of it is all that a single crime affords; in penal servitude for life, a single crime serves to present numerous and lasting warnings. And if it be important that the power of the laws should often be witnessed, there ought to be no long intervals between the examples of the death penalty; but this would presuppose the frequency of crimes, so that, to render the punishment effective, it must not make on men all the impression that it ought to make, in other words, it must be useful and not useful at the same time. And should it be objected that perpetual servitude is as painful as death, and therefore equally cruel, I will reply, that, taking into consideration all the unhappy moments of servitude, it will perhaps be even more painful than death; but whilst these moments are spread over the whole of a lifetime, death exercises all its force in a single moment. There is also this advantage in penal servitude, that it has more terrors for him who sees it than for him who suffers it, for the former thinks of the whole sum-total of unhappy moments, whilst the latter, by the unhappiness of the present moment, has his thoughts diverted from that which is to come. All evils are magnified in imagination, and every sufferer finds resources and consolations unknown to and unbelieved in by spectators, who substitute their own sensibility for the hardened soul of a criminal.Lastly, a witnesss evidence is almost null when spoken words are construed into a crime. For the tone, the gesture, all that precedes or follows the different ideas attached by men to the same words, so alter and modify a mans utterances, that it is almost impossible to repeat them exactly as they were spoken. Moreover, actions of a violent and unusual character, such as real crimes are, leave their traces in the numberless circumstances and effects that flow from them; and of such actions the greater the number of the circumstances adduced in proof, the more numerous are the chances for the accused to clear himself. But words only remain in the memory of their hearers, and memory is for the most part unfaithful and often deceitful. It is on that account ever so much more easy to fix a calumny upon a mans words than upon his actions.

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THREE:So great, however, did the changes appear to be, that Sir James Mackintosh declared, towards the close of his life, that it was as if he had lived in two different countries, such was the contrast between the past and the present. Yet Sir James died in the very year that the first Reform Bill passed, and it was not till after that event that any really great progress was made towards ameliorating the penal laws.CHAPTER II. THE ORIGIN OF PUNISHMENTSTHE RIGHT OF PUNISHMENT.
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FORE: Men for the most part leave the regulation of their chief concerns to the prudence of the moment, or to the discretion of those whose interest it is to oppose the wisest laws; such laws, namely, as naturally help to diffuse the benefits of life, and check that tendency they have to accumulate in the hands of a few, which ranges on one side the extreme of power and happiness, and on the other all that is weak and wretched. It is only, therefore, after having passed through a thousand errors in matters that most nearly touch their lives and liberties, only after weariness of evils that have been suffered to reach a climax, that men are induced to seek a remedy for the abuses which oppress them, and to recognise the clearest truths, which, precisely on account of their simplicity, escape the notice of ordinary minds, unaccustomed as they are to analyse things, and apt to receive their impressions anyhow, from tradition rather than from inquiry.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? FORE:That the scruple to convict diminishes the certainty of punishment, and therefore raises hopes of impunity, is illustrated by the case of two American brothers who, desirous to perpetrate a murder, waited till their victim had left their State, in which capital punishment had been abolished, and had betaken himself to a State which still retained it, before they ventured to execute their criminal intention. That such reluctance to convict is often most injurious to[42] the public is proved by the case of a woman at Chelmsford who some years ago was acquitted, in spite of strong evidence, on a charge of poisoning, and who, before her guilt was finally proved, lived to poison several other persons who would otherwise have escaped her arts.[27] FORE: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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It is not difficult to go back to the origin of this ridiculous law, because the absurdities themselves that a whole nation adopts have always some connection with other common ideas which the same nation respects. The custom seems to have been derived from religious and spiritual ideas, which have so great an influence on the thoughts of men, on nations, and on generations. An infallible dogma assures us, that the stains contracted by human weakness[156] and undeserving of the eternal anger of the Supreme Being must be purged by an incomprehensible fire. Now, infamy is a civil stain; and as pain and fire take away spiritual and incorporeal stains, why should not the agonies of torture take away the civil stain of infamy? I believe that the confession of a criminal, which some courts insist on as an essential requisite for condemnation, has a similar origin;because in the mysterious tribunal of repentance the confession of sins is an essential part of the sacrament. This is the way men abuse the surest lights of revelation; and as these are the only ones which exist in times of ignorance, it is to them on all occasions that docile humanity turns, making of them the most absurd and far-fetched applications. Such fatal and legalised iniquities as have been referred to have been approved of by even the wisest men and practised by even the freest republics, owing to their having regarded society rather as an aggregate[236] of families than as one of individuals. Suppose there to be 100,000 individuals, or 20,000 families, of five persons each, including its representative head: if the association is constituted by families, it will consist of 20,000 men and 80,000 slaves; if it be an association of individuals, it will consist of 100,000 citizens, and not a single slave. In the first case there will be a republic, formed of 20,000 little sovereignties; in the second the republican spirit will breathe, not only in the market-places and meetings of the people, but also within the domestic walls, wherein lies so great a part of human happiness or misery. In the first case, also, as laws and customs are the result of the habitual sentiments of the members of the republicthat is, of the heads of familiesthe monarchical spirit will gradually introduce itself, and its effects will only be checked by the conflicting interests of individuals, not by a feeling that breathes liberty and equality. Family spirit is a spirit of detail and confined to facts of trifling importance. But the spirit which regulates communities is master of general principles, overlooks the totality of facts, and combines them into kinds and classes, of importance to the welfare of the greater number. In the community of families sons remain in the power of the head of the family so long as he lives, and are obliged to look forward to his death for an existence dependent on the laws alone. Accustomed to submission and fear in the[237] freshest and most vigorous time of life, when their feelings are less modified by that timidity, arising from experience, which men call moderation, how shall they withstand those obstacles in the way of virtue which vice ever opposes, in that feeble and failing period of life when despair of living to see the fruit of their labours hinders them from making vigorous changes?It was this system that Beccarias little work[3] destroyed, and had that been its only result, it would still deserve to live in mens memories for its historical interest alone. For upon the legislation of that time, and especially upon that of Italy, this pamphlet on criminal law broke like a ray of sunlight on a dungeon floor, making even blacker that which was black before by the very brilliancy which it shed upon it. To Beccaria primarily, though not of course solely, belongs the glory of having expelled the use of torture from every legal tribunal throughout Christendom.How easily might the farseeing legislator hinder a large part of culpable bankruptcy, and relieve the misfortunes of the industrious and innocent! The public and open registration of all contracts; freedom to every citizen to consult them in well-kept documents; a public bank formed by wisely-apportioned taxes upon prosperous commerce, and intended for the timely relief of any unfortunate and innocent member of the company;such measures would have no real drawback and might produce numberless advantages. But easy, simple, and great laws, which await but the signal of the legislator, in order to scatter riches and strength through a nationlaws which would be celebrated from generation to generation in hymns of gratitudeare either the least thought of or the least desired of all. An uneasy and petty spirit, the timid prudence of the present moment, and a circumspect stiffness against innovations, master the feelings of those who govern the complex actions of mankind.
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