ONE: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: 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.The case of infanticide suggests similar thoughts. When we remember that both Plato and Aristotle commended as a valuable social custom that which we treat as a crime; when we recall the fact that the life of a Spartan infant depended on a committee of elders, who decided whether it should live or perish, we shall better appreciate the distance we have travelled, or, as some would say, the progress we have made, if we take up some English daily paper and read of some high-minded English judge sentencing, at least formally, some wretched woman to death, because, in order to save her child from starvation or herself from shame, she has released it from existence. Yet the feeling, of which such a sentence is the expression, is often extolled as one of the highest triumphs of civilisation; and the laws, as if there were no difference between adult and infant[76] life, glory in protecting the weakness of a child by their merciless disregard for the weakness of its mother.

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THREE:But the honour of having been the first country to lay aside the use of torture undoubtedly belongs to England, just as the honour of having been the first in modern times to abolish capital punishment, except for political offences, belongs to Russia; and the practical example thus afforded by our laws probably did more for the general abolition of the custom than any written treatise on the subject ever would have done alone. English and foreign jurists long delighted to honour the Common Law for its non-recognition of torture. But though torture was contrary to the Common Law, and even to Magna Charta, it was not contrary to Prerogative; and until the Commonwealth it was used as matter of course in all grave accusations at the mere discretion of the monarch and Privy Council.[19] Therefore Beccaria pointed to England as a country which did not use torture with more justice than Grotius had done, who, when the rack was still in use amongst us, quoted England as a proof that people might safely live without torture.

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FORE: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.¡¯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 mankind¡¯s 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 benefit¡ªI mean a great political benefit¡ªupon 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 them¡ªnever despised, because never well understood¡ªthey 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.

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FORE:Happy were humanity, if laws were now dictated to it for the first time, when we see on the thrones of Europe beneficent monarchs, men who encourage the virtues of peace, the sciences and the arts, who are fathers to their people, who are crowned citizens, and the increase of whose authority forms the happiness of their subjects, because it removes that intermediate despotism, more cruel because less secure, by which the people¡¯s wishes, always sincere, and always attended to when they can reach the throne, have been usually intercepted and suppressed. If they, I say, suffer the ancient laws to exist, it is owing to the infinite difficulties of removing from errors the revered rust of many ages; which is a reason for enlightened citizens to desire with all the greater ardour the continual increase of their authority.

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FORE:CHAPTER XIX. THE PROMPTNESS OF PUNISHMENTS.

Finibus Bonorum et Malorum" by Cicero are also reproduced in their exact original form, accompanied by English versions from the 1914 translation by H. Rackham

FORE:It is incomparably better to prevent crimes than to punish them.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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FORE: It is a great point in every good system of laws to determine exactly the credibility of witnesses and the proofs of guilt Every reasonable man¡ªthat is, every man with a certain connection between his ideas and with feelings like those of other men¡ªis capable of bearing witness. The true measure of his credibility is only the interest he has in speaking or in not speaking the truth; so that nothing can be more frivolous than to reject the evidence of women on the pretext of their feebleness, nothing more childish than to apply the results of real death to civil death as regards the testimony of the condemned, nothing more unmeaning than to insist on the mark of infamy in the infamous when they have no interest in lying.

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FORE:Adultery is a crime which, politically considered, derives its force and direction from two causes, namely, from the variable laws in force among mankind, and from that strongest of all attractions which draws one sex towards the other.[70]

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THREE: Not only is it the general interest that crimes should not be committed, but that they should be rare in proportion to the evils they cause to society. The more opposed therefore that crimes are to the public welfare, and the more numerous the incentives to them, the stronger should be the repellent obstacles. This principle accordingly establishes the necessity of a certain proportion between crimes and punishments.To examine and distinguish all the different sorts[120] of crimes and the manner of punishing them would now be our natural task, were it not that their nature, which varies with the different circumstances of times and places, would compel us to enter upon too vast and wearisome a mass of detail. But it will suffice to indicate the most general principles and the most pernicious and common errors, in order to undeceive no less those who, from a mistaken love of liberty, would introduce anarchy, than those who would be glad to reduce their fellow-men to the uniform regularity of a convent.

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FORE:Sir Robert Peel, who was the first Ministerial law reformer, succeeded in getting the death penalty repealed for several crimes which were practically obsolete, but forty kinds of forgery alone still remained capital offences. THREE:But if the interest of Beccaria¡¯s chapter on Torture is now merely historical, an interest that is actual still attaches to his advocacy of the total abolition of capital punishment, this being the cause with which his name is most generally associated, and for which it is likely to be longest remembered. Previous writers, like Montaigne, if they deprecated the excess or severity of the death penalty, never thought of urging that it should be abolished altogether.In a period of ten years, from 1867 to 1876, the total number of principal indictable offences committed in the metropolis against property¡ªand these constitute the great majority of crimes¡ªwere 117,345. But the apprehensions for these offences were only 26,426, the convictions only 19,242. In other words,[94] the chances against apprehension for such crimes as burglary or larceny are four to one in favour of the criminal, whilst the chances against his conviction and punishment are fully as high as six to one. When we thus find that only 16 per cent. of such crimes receive any punishment, the remaining 84 per cent. escaping it altogether, and that only 22 per cent. are even followed by apprehension, we shall the more admire the general efficacy of our criminal machinery, in which prevention by punishment plays so small a part.[51]

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FORE:It certainly should moderate our reverence for ancestral wisdom to find even a man like Fielding, the novelist, speaking, in his Charge to the Grand Jury of Middlesex, of the pillory and the loss of a man¡¯s ears as ¡®an extremely mild¡¯ punishment for a bad case of libel, or declaring our punishments of that time to be ¡®the mildest and most void of terror of any other in the known world.¡¯ Yet Fielding recognised several of the true principles of punishment. He attributed the increase of crime to the great abuse of pardons, which, he said, had brought many more men to the gallows than they had saved from it. He also advocated the diminution of the number of executions, their greater privacy and solemnity, whilst he recommended their following as closely as possible on conviction, that pity for the criminal might be lost in detestation for his crime.[33] THREE:CHAPTER XL. OF THE TREASURY.CHAPTER XV. THE MILDNESS OF PUNISHMENTS.

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FORE: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. THREE:CHAPTER I. INTRODUCTION.There are three sources of the moral and political principles which govern mankind, namely, revelation, natural law, and social conventions. With regard to their principal object there is no comparison between the first and the other two, but they all resemble one another in this, that they all three conduce to the happiness of this present mortal life. To consider the different relations of social conventions is not to exclude those of revelation and natural law; rather it is the thousandfold changes which revelation and natural law, divine and immutable though they be, have undergone in the depraved mind of man, by his own fault, owing to false religions and arbitrary notions of virtue and vice, that make it appear necessary to examine, apart from all other considerations, the result of purely human conventions, expressed or implied, for the public need and welfare: this being an idea in which every sect and every moral system must necessarily agree; and it will always be a laudable endeavour, which seeks to constrain the headstrong and unbelieving to conform to the principles that induce men to live together in society. There are, then, three distinct kinds of virtue and vice¡ªthe religious, the natural, and the political. These three kinds ought never to conflict, although all the consequences and duties that flow from any one of them do not necessarily flow from the others. The natural law does not require all that revelation requires,[114] nor does the purely social law require all that natural law requires; but it is most important to distinguish the consequences of the conventional law¡ªthat is, of the express or tacit agreements among men¡ªfrom the consequences of the natural law or of revelation, because therein lies the limit of that power, which can rightly be exercised between man and man without a special mandate from the Supreme Being. Consequently the idea of political virtue may, without any slur upon it, be said to be variable; that of natural virtue would be always clear and manifest, were it not obscured by the stupidity or the passions of men; whilst the idea of religious virtue remains ever one and the same, because revealed directly from God and by Him preserved.

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03.

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.¡But it is probable that Beccaria owed his escape from persecution less to his apology than to the liberal protection of Count Firmian, who in his report of the affair to the Court of Vienna spoke of the Risposta as ¡®full of moderation and honourable to the character of its author.¡¯ That the Count fully agreed with Beccaria¡¯s opinions on torture is proved by a letter he wrote, in which he declares himself to have been much pleased with what Beccaria had said on the subject. His vanity, he said, had been flattered by it, for his own feelings about torture had always been the same. The book seemed to him written with much love of humanity and much imagination. Beccaria always acknowledged his gratitude to the Count for his action in this matter. To Morellet he[18] wrote, that he owed the Count his tranquillity, in having protected his book; and when, a few years later, he published his book on Style, he dedicated it to Firmian as his benefactor, thanking him for having scattered the clouds that envy and ignorance had gathered thickly over his head, and for having protected one whose only object had been to declare with the greatest caution and respect the interests of humanity.

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04.

THREE: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.

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