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CHAPTER V. OBSCURITY OF THE LAWS.
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THREE:But should a man who is banished and excluded for ever from the society of which he was a member be also deprived of his property? Such a question may be regarded from different points of view. The loss of property is a greater punishment than banishment; there ought, therefore, to be some cases in which, according to his crime, a man should lose the whole, or part, or none of his property. The confiscation of the whole will occur, when the legal sentence of banishment is of a kind to annihilate all the ties that exist between society and its offending member; for in such a case the citizen dies, and only the man remains; and with regard to the political body civil death should produce the same effect as natural death. It would seem then that the confiscated property should pass to a mans lawful heirs rather than[182] to the head of the State, since death and banishment in its extreme form are the same with regard to the body politic. But it is not by this subtlety that I dare to disapprove of confiscations of property. If some have maintained that confiscations have acted as checks on acts of revenge and on the great power of individuals, it is from neglecting to consider that, however much good punishments may effect, they are not for that reason always just, because to be just they must be necessary; and an expedient injustice can be tolerated by no legislator, who wishes to close all doors against watchful tyranny, ever ready to hold out flattering hopes, by temporary advantages and by the prosperity of a few persons of celebrity, in disregard of future ruin and of the tears of numberless persons of obscurity. Confiscations place a price on the heads of the feeble, cause the innocent to suffer the punishment of the guilty, and make the commission of crimes a desperate necessity even for the innocent. What sadder sight can there be than that of a family dragged down to infamy and misery by the crimes of its head, unable to prevent them by the submission imposed on it by the laws, even supposing such prevention to have been within its power!
FORE:CHAPTER V. OBSCURITY OF THE LAWS.It would also seem to demand no great insight to perceive that a voluntary intention must be a universal attribute of a criminal action. No one would think of punishing a man who in his sleep killed another, although, if the injury to society be the measure of punishment, his crime is equivalent to intentional homicide. Yet at Athens an involuntary murderer was banished until he could, give satisfaction to the relatives of the deceased; and in China, though the penal code generally separates intentional from accidental crimes, anyone who kills a near relation by accident or commits certain kinds[72] of arson by accident undergoes different degrees of banishment and a fixed number of bamboo strokes.[40]

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3 | 14 Nov.

FORE: There is also a fourth consequence of the above principles: that the right to interpret penal laws cannot possibly rest with the criminal judges, for the[126] very reason that they are not legislators. The judges have not received the laws from our ancestors as a family tradition, as a legacy that only left to posterity the duty of obeying them, but they receive them from living society, or from the sovereign that represents it and is the lawful trustee of the actual result of mens collective wills; they receive them, not as obligations arising from an ancient oath[65] (null, because it bound wills not then in existence, and iniquitous, because it reduced men from a state of society to that of a flock), but as the result of the tacit or expressed oath made to the sovereign by the united wills of living subjects, as chains necessary for curbing and regulating the disorders caused by private interests. This is the natural and real source of the authority of the laws.

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1 | 13 Oct.

FORE:But, to turn from this unpleasant episode of Beccarias life, Catharine II., soon after his return to Milan, invited him to St. Petersburg, to assist in the preparation of her intended code of laws. It would seem from one of Pietro Verris letters that Beccaria was at first inclined to accept the proposal,[15] but it is improbable that any such offer would really have tempted him to exchange Italian suns for Russian snows, even if Kaunitz and Firmian had not resolved to remove the temptation, by making his talents of service at home. This they did by making him Professor of Political Economy in the Palatine School of Milan, in November 1768; and his published lectures on this subject form the largest work he ever wrote.But at least, it will be thought, we have by this time arrived at some principles about punishment which correspond with the eternal truths of equity. Is not Equality, for instance, one of the primary essentials of punishment? Does it not stand as a penal axiom with almost the sanction of a moral law that all men should suffer equally for equal crimes? Yet, if by equality be meant the same punishment, the same kind of labour, the same term of servitude, the same pecuniary fineand this is the only thing it can meanwhat more obvious than that the same punishment for rich and poor, for young and old, for strong and weak, for men and women, for educated and uneducated, will bring to the constitution of a penal code the utmost inequality the imagination can conceive? Beccaria insists that the law can do no more than assign the same extrinsic punishment to the same crime; that is, the same punishment, regardless of all other external considerations; and he calls for the infliction of the same punishment on the nobleman as on the commoner. Let it be so; but the same punishment is no longer an equal one; and hence from this very demand for equality springs the demand for its very opposite, for what Bentham calls the equability of punishment; that is, consideration[77] for the different circumstances of individual criminals. So that the same nominal punishment not being the same real one, equality of punishment appears to be a chimera, and the law, which punishes, say, a distinguished officer less severely than it punishes a costermonger for the same crime, errs perhaps really less from actual equality than if it condemned both to precisely the same punishment.

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1 | 13 Oct.

TWO:Such are the fatal arguments employed, if not clearly, at least vaguely, by men disposed to crimes, among whom, as we have seen, the abuse of religion is more potent than religion itself.
THREE:If we consult the human heart we shall therein discover the fundamental principles of the real right of the sovereign to punish crimes.
FORE:

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FORE:But there was another side to the brightness of this success. In literature as in war no position of honour can be won or held without danger, and of this Beccaria seems to have been conscious when he[15] pleaded against the charge of obscurity, that in writing he had had before his eyes the fear of ecclesiastical persecution. His love for truth, he confessed, stopped short at the risk of martyrdom. He had, indeed, three very clear warnings to justify his fears. Muratori, the historian, had suffered much from accusations of heresy and atheism, and had owed his immunity from worse consequences chiefly to the liberal protection of Pope Benedict XIV. The Marquis Scipio Maffei had also incurred similar charges for his historical handling of the subject of Free-will. But there was even a stronger warning than these, and one not likely to be lost on a man with youth and life before him; that was the fate of the unfortunate Giannone, who, only sixteen years before Beccaria wrote, had ended with his life in the citadel of Turin an imprisonment that had lasted twenty years, for certain observations on the Church of Rome which he had been rash enough to insert in his History of Naples.The right to ask such a question derives itself from recent experience. In 1853 the country decided to shorten terms of penal servitude as compared with those of the then expiring system of transportation, for which they were to be substituted. Four years later it was resolved to equalise terms of penal servitude with those formerly given of transportation, though transportation for seven years was still to have its equivalent in three of penal servitude. Then came the garrotting year, 1862, in consequence of which the minimum term of penal servitude was raised to five years, whilst no sentence of penal servitude, after a previous conviction of felony, was to be for less than seven years. Now again the tide has turned in favour of shorter sentences, and it is officially proposed to relinquish the latter minimum of servitude as too severe, and as leading in practice to sentences of simple imprisonment, which on the other hand are declared to be too slight.

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FORE:CHAPTER XXXIX. OF FAMILY SPIRIT.The very success of Beccarias work has so accustomed us to its result that we are apt to regard it, as men regard a splendid cathedral in their native town, with very little recognition of its claims to admiration. The work is there, they see it, they live under its shadow; they are even ready to boast of it; but[30] what to them is the toil and risk of its builders, or the care and thought of its architects? It may be said that this indifference is the very consummation Beccaria would most have desired, as it is the most signal proof of the success of his labour. So signal, indeed, has been that success, that already the atrocities which men in those days accepted as among the unalterable conditions of their existence, or resigned themselves to as the necessary safeguards of society, have become so repulsive to the worlds memory, that men have agreed to hide them from their historical consciousness by seldom reading, writing, or speaking of their existence. And this is surely a fact to be remembered with hopefulness, when we hear an evil like war with all its attendant atrocities, defended nowadays by precisely the same arguments which little more than a hundred years ago were urged on behalf of torture, but which have proved nevertheless insufficient to keep it in existence.

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

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FORE:The greater the number of those who understand and have in their hands the sacred code of the laws, the fewer will be the crimes committed; for it is beyond all doubt that ignorance and uncertainty of punishments lend assistance to the eloquence of the passions. Yet what shall we think of mankind, when we reflect, that such a condition of the laws is the inveterate custom of a large part of cultivated and enlightened Europe? 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 manthat is, every man with a certain connection between his ideas and with feelings like those of other menis 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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THREE: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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THREE:There are some crimes which are at the same time of common occurrence and of difficult proof. In them the difficulty of proof is equivalent to a probability of innocence; and the harm of their impunity being so much the less to be considered as their frequency depends on principles other than the risk of punishment, the time for inquiry and the period of prescription ought both to be proportionately less. Yet[161] cases of adultery and pederasty, both of difficult proof, are precisely those in which, according to received principles, tyrannical presumptions of quasi-proofs and half-proofs are allowed to prevail (as if a man could be half-innocent or half-guilty, in other words, half-punishable or half-acquittable); in which torture exercises its cruel sway over the person of the accused, over the witnesses, and even over the whole family of an unfortunate wretch, according to the coldly wicked teaching of some doctors of law, who set themselves up as the rule and standard for judges to follow.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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TWO:CHAPTER XIV. CRIMINAL ATTEMPTS, ACCOMPLICES, IMPUNITY.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:
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TWO:Whosoever will read with a philosophical eye the codes and annals of different nations will find almost always that the names of virtue and vice, of good citizen and criminal, are changed in the course of ages, not in accordance with the changes that occur in the circumstances of a country, and consequently in conformity with the general interest, but in accordance with the passions and errors that have swayed different legislators in succession. He will observe full often, that the passions of one age form the basis of the morality of later ones; that strong passions, the offspring of fanaticism and enthusiasm, weakened and, so to speak, gnawed away by time (which reduces to a level all physical and moral phenomena) become little by little the prudence of the age, and a useful[204] instrument in the hand of the strong man and the clever. In this way the vaguest notions of honour and virtue have been produced; for they change with the changes of time, which causes names to survive things; as also with the changes of rivers and mountains, which form frequently the boundaries of moral no less than of physical geography.

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TWO:Thus before his death Beccaria saw torture almost entirely abolished in Europe, and a general tendency spreading to follow the spirit of the changes he advocated in other details of criminal law. Probably no other theorist ever lived to witness so complete an adoption of his principles in practice, or so thorough a transformation of the system he attacked. It is possible that he but gave body and voice to ideas of change already widely prevalent in his time; but the[38] merit of a man belongs none the less to himself, who changes the instability of public opinion into an active and solid force, and who gives distinct expression to the longings vaguely felt by a multitude.

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TWO:Laws should only be considered as a means of conducting mankind to the greatest happiness.Another principle would serve admirably to draw still closer the important connection between a misdeed and its punishment, and that is, that the latter should as far as possible conform to the nature of the crime. This analogy facilitates marvellously the contrast that ought to exist between the impulse to[188] the crime and the counter-influence of the punishment, the one, that is, diverting the mind and guiding it to an end quite different from that to which the seductive idea of transgressing the law endeavours to lead it.

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ONE:Among other abuses of grammar, which have no slight influence on human affairs, that one is notable which makes the evidence of a condemned criminal null and void. He is dead civilly say gravely the peripatetic lawyers, and a dead man is incapable of any action. In support of this silly metaphor many[139] victims have been sacrificed, and it has very often been disputed with all seriousness whether the truth should not yield to judicial formulas. Provided that the testimony of a condemned criminal does not go to the extent of stopping the course of justice, why should not a fitting period be allowed, even after condemnation, both to the extreme wretchedness of the criminal and to the interests of truth, so that, by his adducing fresh matter to alter the complexion of the fact, he may justify himself or others in a new trial? Forms and ceremonies are necessary in the administration of justice, because they leave nothing to the free will of the administrator; because they give the people an idea of a justice which is not tumultuary and self-interested, but steadfast and regular; and because men, the slaves of habit and imitation, are more influenced by their feelings than by arguments. But such forms can never without fatal danger be so firmly fixed by the laws as to be injurious to truth, which from being either too simple or two complex needs some external pomp to conciliate the ignorant populace.The lighting of a city by night at the public expense; the distribution of guards in the different quarters; simple moral discourses on religion, but only in the silent and holy quiet of churches, protected by public authority; speeches on behalf of private and public interests in national assemblies, parliaments, or wherever else the majesty of sovereignty residesall these are efficacious means for preventing the dangerous condensation of popular passions. These means are a principal branch of that magisterial vigilance which the French call police; but if this is exercised by arbitrary laws, not laid down in a code of general circulation, a door is opened to tyranny,[221] which ever surrounds all the boundaries of political liberty. I find no exception to this general axiom, that Every citizen ought to know when his actions are guilty or innocent. If censors, and arbitrary magistrates in general, are necessary in any government, it is due to the weakness of its constitution, and is foreign to the nature of a well organised government. More victims have been sacrificed to obscure tyranny by the uncertainty of their lot than by public and formal cruelty, for the latter revolts mens minds more than it abases them. The true tyrant always begins by mastering opinion, the precursor of courage; for the latter can only show itself in the clear light of truth, in the fire of passion, or in ignorance of danger.

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THREE:Some persons have maintained that a crime, that is, an action contrary to the laws, is punishable wherever committed, as if the character of subject[193] were indelible, or, in other words, synonymous with, nay, worse than, the character of slave; as if a man could be the subject of one kingdom and the resident of another, or as if his actions could without contradiction be subordinate to two sovereign powers and to two legal systems often contradictory. So some think that a cruel action done, say, at Constantinople is punishable at Paris, for the abstract reason that he who offends humanity deserves to have collective humanity for his enemy, and merits universal execration; as if judges were the avengers of human sensibility in general, and not rather of the covenants that bind men together. The place of punishment is the place of the crime, because there, and there only, is it a compulsory duty to injure an individual, to prevent an injury to the public. A villain, but one who has not broken the covenants of the society of which he was not a member, may be an object of fear, and for that reason be expelled and exiled by the superior power of that society; but he cannot be legally and formally punished, since it is for the laws to avenge, not the intrinsic malice of particular actions, but the violation of compacts.But there is a still further uncertainty of punishment, for it is as well known in the criminal world as elsewhere that the sentence pronounced in court is not the real sentence, and that neither penal servitude for[96] five years nor penal servitude for life mean necessarily anything of the sort. The humanity of modern legislation insists on a remission of punishment, dependent on a convicts life in the public works prisons, in order that the element of hope may brighten his lot and perchance reform his character. This remission was at first dependent simply on his conduct, which was perhaps too generously called good where it was hard for it to be bad; now it depends on his industry and amount of work done. Yet the element of hope might be otherwise assured than by lessening the certainty of punishment, say, by associating industry or good conduct with such little privileges of diet, letter-writing, or receiving of visits, as still shed some rays of pleasure over the monotony of felon-life. It should not be forgotten, that the Commission of 1863, which so strongly advocated the remissibility of parts of penal sentences, did so in despite of one of its principal members, against no less an authority than the Lord Chief Justice, then Sir Alexander Cockburn.[55] The very fact of the remissibility of a sentence is an admission of its excessive severity; for to say that a sentence is never carried out is to say that it need never have been inflicted.
THREE: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.

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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. The cries of sages and philosophers are as the cries of the innocent man on the wheel, where they have never prevented, nor will ever prevent him from expiring, with his eyes upturned to heaven, which will perhaps some day stir up enthusiasm, or religious madness, or some other avenging folly, to accomplish all that their wisdom has failed to do. It is never the oration of the philosopher which disarms the powerful ruler; it is something else, which the combination of chance events brings about. Meanwhile we must not seek to force it from him, but must entreat humbly for such good as he can grant us, that is which he can grant us without injury to himself.Who can read history without being horror-struck at the barbarous and useless torments which men, who were called wise, in cold blood devised and executed? Who is there but must feel his blood boil, when he regards the thousands of wretches whom misery, either intended or tolerated by the laws (which have always favoured the few and outraged the many), has driven to a desperate return to the original state of nature; when he sees them either accused by men endowed with the same senses, and consequently with the same passions as themselves, of impossible crimes, the fiction of timid ignorance, or guilty of nothing but fidelity to their own principles; and when he sees them lacerated by slow tortures, subject to well-contrived formalities, an agreeable sight for a fanatical multitude?But although the laws of every country thus recognise in different degrees the retributive nature of punishment, by their constant attention to its apportionment to crime, there is another corollary of the desirability of a just proportion between the two, which has never been, nor is ever likely to be, accepted: namely, that from the point of view of the public interest, which in theory is the only legal view, it is no mitigation of a crime that it is a first offence, nor any aggravation of one that it is the second.
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