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THREE: An error, not less common than it is contrary to the object of society—that is, to the consciousness of personal security—is leaving a magistrate to be the arbitrary executor of the laws, free at his pleasure to imprison a citizen, to deprive a personal enemy of his liberty on frivolous pretexts, or to leave a friend unpunished in spite of the strongest proofs of his guilt. Imprisonment is a punishment which, unlike every other, must of necessity precede the declaration of guilt; but this distinctive character does not deprive it of the other essential of punishment, namely, that the law alone shall determine the cases under which it shall be merited. It is for the law, therefore, to point out the amount of evidence of a crime which shall justify the detention of the accused, and his subjection to examination and punishment. For such detention there may be sufficient proofs in common[133] report, in a man’s flight, in a non-judicial confession, or in the confession of an accomplice; in a man’s threats against or constant enmity with the person injured; in all the facts of the crime, and similar indications. But these proofs should be determined by the laws, not by the judges, whose decisions, when they are not particular applications of a general maxim in a public code, are always adverse to political liberty. The more that punishments are mitigated, that misery and hunger are banished from prisons, that pity and mercy are admitted within their iron doors, and are set above the inexorable and hardened ministers of justice, the slighter will be the evidences of guilt requisite for the legal detention of the suspected.For instance, the injury to the public is no greater the hundredth time a man steals a rabbit than it is the first. The public may be interested in the prevention of poaching, but it is not interested in the person of the poacher, nor in the number of times he may have broken the law. The law claims to be impersonal—to treat offences as they affect the State, not as they affect individuals; to act mechanically, coldly, and dispassionately. It has, therefore, simply to deal with the amount of injury done by each specific offence, and to affix to it its specific penalty, regardless of all matters of moral antecedents. The repetition of an offence may make its immorality the greater, but its[88] criminality remains the same, and this only is within the province of the law.

THREE: There is a general theorem which is most useful for calculating the certainty of a fact, as, for instance, the force of the proofs in the case of a given crime:— Some remnants of the laws of an ancient conquering people, which a prince who reigned in Constantinople some 1,200 years ago caused to be compiled, mixed up afterwards with Lombard rites and packed in the miscellaneous volumes of private and obscure commentators—these are what form that set of traditional opinions which from a great part of Europe receive nevertheless the name of laws; and to this day it is a fact, as disastrous as it is common, that some opinion of Carpzovius, some old custom pointed out by Clarus, or some form of torture suggested in terms of complacent ferocity by Farinaccius, constitute the laws, so carelessly followed by those, who in all trembling ought to exercise their government over the lives and fortunes of men. These laws, the dregs of the most barbarous ages, are examined in this book in so far as regards criminal jurisprudence, and I have dared to expose their faults to the directors of the public happiness in a style which may keep at[112] a distance the unenlightened and intolerant multitude. The spirit of frank inquiry after truth, of freedom from commonplace opinions, in which this book is written, is a result of the mild and enlightened Government under which the Author lives. The great monarchs, the benefactors of humanity, who are now our rulers, love the truths expounded, with force but without fanaticism, by the obscure philosopher, who is only roused to indignation by the excesses of tyranny, but is restrained by reason; and existing abuses, for whosoever well studies all the circumstances, are the satire and reproach of past ages, and by no means of the present age or of its lawgivers.

THREE:[113]Nothing is more dangerous than that common axiom, ‘We must consult the spirit of the laws.’ It is like breaking down a dam before the torrent of opinions. This truth, which seems a paradox to ordinary minds, more struck as they are by a little present inconvenience than by the pernicious but remote consequences which flow from a false principle enrooted among a people, seems to me to be demonstrated. Our knowledge and all our ideas are reciprocally connected together; and the more complicated they are, the more numerous are the approaches to them, and the points of departure. Every man has his own point of view—a different one at different times; so that ‘the spirit of the laws’ would mean the result of good or bad logic on the part of a judge, of an easy or difficult digestion; it would depend now on the violence of his passions, now on the[128] feebleness of the sufferer, on the relationship between the judge and the plaintiff, or on all those minute forces which change the appearances of everything in the fluctuating mind of man. Hence it is that we see a citizen’s fate change several times in his passage from one court to another; that we see the lives of wretches at the mercy of the false reasonings or of the temporary caprice of a judge, who takes as his rightful canon of interpretation the vague result of all that confused series of notions which affect his mind. Hence it is that we see the same crimes punished differently by the same court at different times, owing to its having consulted, not the constant and fixed voice of the laws, but their unstable and erring interpretations.

THREE:Any action that is not included between the two above-indicated extremes can only be called a crime or punished as such by those who find their interest in so calling it. The uncertainty of these limits has produced in different nations a system of ethics contrary to the system of laws, has produced many actual systems of laws at total variance with one another, and a quantity of laws which expose even the wisest man to the severest penalties. Consequently the words virtue and vice have become of vague and variable meaning, and from the uncertainty thus surrounding individual existence, listlessness and a fatal apathy have spread over political communities.

THREE:Thus, the two writers to whom Beccaria owed most were Montesquieu and Helvetius. The ‘Lettres Persanes’ of the former, which satirised so many things then in custom, contained but little about penal laws; but the idea is there started for the first time that crimes depend but little on the mildness or severity of the punishments attached to them. ‘The imagination,’ says the writer, ‘bends of itself to the customs of the country; and eight days of prison or a slight fine have as much terror for a European brought up in a country of mild manners as the loss of an arm would have for an Asiatic.’[4] The ‘Esprit des Lois,’ by the same author, probably contributed more to the formation of Beccaria’s thoughts than the ‘Lettres Persanes,’ for it is impossible to read the twelfth book of that work without being struck by the resemblance of ideas. The ‘De L’Esprit’ of Helvetius was condemned by the Sorbonne as ‘a combination of all the various kinds of poison scattered through modern books.’ Yet it was one of the most influential books of the time. We find Hume recommending it to Adam Smith for its agreeable composition father than for its philosophy; and a writer who had much in common with Beccaria drew[8] from it the same inspiration that he did. That writer was Bentham, who tells us that when he was about twenty, and on a visit to his father and stepmother in the country, he would often walk behind them reading a book, and that his favourite author was Helvetius.