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Had I to address nations still destitute of the light of religion, I would say that there is yet another considerable difference between adultery and other crimes. For it springs from the abuse of a constant and universal human impulse, an impulse anterior to, nay, the cause of the institution of society; whereas other crimes, destructive of society, derive their origin rather from momentary passions than from a natural impulse. To anyone cognisant of history and his kind, such an impulse will seem to be equivalent in the same climate to a constant quantity; and if this be so, those laws and customs which seek to diminish the sum-total will be useless or dangerous, because their effect will be to burthen one half of humanity with its own needs and those of others; but those laws, on the contrary, will be the wisest, which following, so to speak, the gentle inclination of the plain, divide the total amount, causing it to ramify into so many equal and small portions, that aridity or overflowing are equally prevented everywhere. Conjugal fidelity is always proportioned to the number and to the freedom of marriages. Where marriages are governed by hereditary prejudices, or[229] bound or loosened by parental power, there the chains are broken by secret intrigue, in despite of ordinary morality, which, whilst conniving at the causes of the offence, makes it its duty to declaim against the results. But there is no need of such reflections for the man who, living in the light of true religion, has higher motives to correct the force of natural effects. Such a crime is of so instantaneous and secret commission, so concealed by the very veil the laws have drawn round it (a veil necessary, indeed, but fragile, and one that enhances, instead of diminishing, the value of the desired object), the occasions for it are so easy, and the consequences so doubtful, that the legislator has it more in his power to prevent than to punish it. As a general rule, in every crime which by its nature must most frequently go unpunished, the penalty attached to it becomes an incentive. It is a quality of our imagination, that difficulties, if they are not insurmountable nor too difficult, relatively to the mental energy of the particular person, excite the imagination more vividly, and place the object desired in larger perspective; for they serve as it were as so many barriers to prevent an erratic and flighty fancy from quitting hold of its object; and, while they compel the imagination to consider the latter in all its bearings, it attaches itself more closely to the pleasant[230] side, to which our mind most naturally inclines, than to the painful side, which it places at a distance. There are some crimes which, are at the same time frequent in society and yet difficult to prove, as adultery, pederasty, infanticide.
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THREE:This fulmination reached Milan on January 15, 1765, and on the 21st the Risposta, or reply, was[17] ready for publication.[7] This defence was the work of his friends, the Verris, and was published, like the original, anonymously; as it was written in the first person throughout, it was generally at the time and even till lately ascribed to the same author as the original, but the fact is now established beyond doubt that the real authors were Pietro and his brother. The writers wisely refrained from the use of retaliatory language, confining themselves in their defence solely to charges of irreligion and sedition, responding to six which accused Beccaria of the latter, and to twenty-three which declared him guilty of the former. It does not follow, because the laws do not punish intentions, that therefore a crime begun by some action, significative of the will to complete it, is undeserving of punishment, although it deserves less than a crime actually committed. The importance of preventing an attempt at a crime justifies a punishment; but, as there may be an interval between the attempt and the execution, the reservation of a greater punishment for a consummated crime may present a motive for its non-completion.

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THREE:In revenges or punishments, says Hobbes, men ought not to look at the greatness of the evil past, but the greatness of the good to follow, whereby we are forbidden to inflict punishment with any other design than for the correction of the offender and the admonition of others. And over and over again the same thing has been said, till it has come to be a commonplace in the philosophy of law, that the object of punishment is to reform and deter. As was once said by a great legal authority, We do not hang you because you stole a horse, but that horses may not be stolen.[42] Punishment by this theory is a means to an end, not an end in itself.

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FORE:Where there is no capital punishment, as in Michigan, a mans innocence may be discovered subsequently to conviction, and justice done to him for the error of the law. Such a case actually happened not long ago in Michigan, where a prisoners innocence[41] was clearly proved after ten years imprisonment. Where capital punishment exists, there is no such hope; nor is there any remedy if, as in the case of Lewis, who was hung in 1831, another man thirty-three years afterwards confesses himself the murderer. It is impossible to preclude all chances of such errors of justice. Illustrative of this is the story of the church organist near Kieff, who murdered a farmer with a pistol he stole from a priest. After his crime he placed the pistol in the sacristy, and then, when he had prevented the priest from giving evidence against him by the act of confession, went and denounced the priest as the culprit. The priest, in spite of his protestations of innocence, was sentenced to hard labour for life; and when, twenty years afterwards, the organist confessed his guilt on his deathbed, and the priests liberation was applied for, it was found that he had died only a few months before.[26]

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FORE: One of the greatest preventives of crimes is, not the cruelty of the punishments attached to them, but their infallibility, and consequently that watchfulness on the part of the magistrates and that inexorable severity on the part of the judge which, to be a useful virtue, must coincide with a mild system of laws. The certainty of a punishment, moderate though it be, will ever make a stronger impression than the fear of another, more terrible, perhaps, but associated with the hope of impunity; for even the least evils when certain always terrify mens minds, and hope, that gift of heaven, which often makes up to us for everything, always throws into the distance the idea of greater evils, especially when its force is increased by impunity, which avarice and weakness so often grant.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 vicethe 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 lawthat is, of the express or tacit agreements among menfrom 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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FORE:CHAPTER XIII. PROSECUTIONS AND PRESCRIPTIONS.

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THREE:

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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.
FORE:To return to the innocent bankrupt. Granting that his obligation should not be extinguishable by anything short of total payment; granting that he should not be suffered to withdraw from it without the[218] consent of the parties interested, nor to transfer under the dominion of other laws his industry, which should perforce be employed, under penalties, to enable him to satisfy his creditors in proportion to his profits; what fair pretext, I ask, can there be, such as the security of commerce or the sacred right of property, to justify the deprivation of his liberty? Such a deprivation is only of use, when it is sought to discover the secrets of a supposed innocent bankrupt by the evils of servitude, a most unusual circumstance where a rigorous inquiry is instituted. I believe it to be a maxim in legislation, that the amount of political inconveniences varies directly in proportion to the injury they do the public, and inversely in proportion to the difficulty of their proof.

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FORE: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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TWO: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. THREE:CHAPTER XXIII. PROPORTION BETWEEN CRIMES AND PUNISHMENTS. FORE:Romilly also injured his cause by a pamphlet on the criminal law, in which he criticised severely the doctrines of Paley. So strongly was this resented, that in 1810 his bill to abolish capital punishment for stealing forty shillings from a dwelling-house did not even pass the Commons, being generally opposed, as it was by Windham, because the maintenance of Paleys reputation was regarded as a great object of national concern.[37] That is to say, men voted not so much against the bill as against the author of a heresy against Paley.CHAPTER XX. CERTAINTY OF PUNISHMENTSPARDONS.
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FORE:This honour, then, is one of those complex ideas[210] which are an aggregate not only of simple ideas but of ideas no less complex than themselves, and which in their various presentments to the mind now admit and now omit some of their different component elements, only retaining some few common ideas, just as in algebra several complex quantities admit of a common divisor. To find this common divisor in the different ideas that men form of honour, we must cast a rapid glance over the first formation of communities.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:If we consult the human heart we shall therein discover the fundamental principles of the real right of the sovereign to punish crimes.Even inanimate objects or animals it has been thought through many ages reasonable to punish. In Athens an axe or stone that killed anyone by accident was cast beyond the border; and the English law was only repealed in the present reign which made a cartwheel, a tree, or a beast, that killed a man, forfeit to the State for the benefit of the poor. The Jewish law condemned an ox that gored anyone to death to be stoned, just as it condemned the human murderer. And in the middle ages pigs, horses, or oxen were not only tried judicially like men, with counsel on either side and witnesses, but they were hung on gallows like men, for the better deterrence of their kind in future.[41]
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FORE:English philosophy and legislation, therefore, owe enough to Beccaria for his treatise never to be forgotten among us. Standing, as it does, in reference to law as Bacons Novum Organon to science, or Descartes Principia to philosophy, and representing a return to first principles and rejection of mere precedent in the matter of penal laws, it will never fail to gratify those who, with little admiration for law in the concrete, can yet find pleasure in studying it in the abstract. Most men will turn readily from a system built up, as our own is, of unintelligible distinctions, and based on authority rather than on experience, to a system where no distinctions exist save those which are derived from the nature of things and are founded on the real differences that distinguish the moral actions of mankind. Whatever improvement our penal laws have undergone in the last hundred years is due primarily to Beccaria, and to an extent that has not always been recognised. Lord Mansfield is said never to have mentioned his name without a sign of respect. Romilly referred to him in the very first speech he delivered in the House of Commons on the subject of law reform. And there is no English writer of that day who, in treating of the criminal law, does not refer to Beccaria.
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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.But whether the international extradition of criminals be useful I would not venture to decide, until laws more in conformity with the needs of humanity, until milder penalties, and until the emancipation of law from the caprice of mere opinion, shall have given[194] security to oppressed innocence and hated virtue; until tyranny shall have been confined, by the force of universal reason which ever more and more unites the interests of kings and subjects, to the vast plains of Asia; however much the conviction of finding nowhere a span of earth where real crimes were pardoned might be the most efficacious way of preventing their occurrence.CHAPTER XXX. THEFTS.There seem to be three principal reasons why, under our present system, crime still keeps its general level, irrespective of all changes in our degrees of punishment. A cruelty consecrated among most nations by custom is the torture of the accused during his trial, on the pretext of compelling him to confess his crime, of clearing up contradictions in his statements, of discovering his accomplices, of purging him in some metaphysical and incomprehensible way from infamy, or finally of finding out other crimes of which he may possibly be guilty, but of which he is not accused.The treatise Dei Delitti, instead of throwing any light on the subject of crimes, or on the manner in which they should be punished, tends to establish a system of the most dangerous and novel ideas, which, if adopted, would go so far as to overturn laws received hitherto by the greater part of all civilised nations.
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