{"collection":"philosophy-ethics","full_text_available":true,"graph_url":"https://unchartedknowledge.5gfusion.net/v2/api/page/gutenberg_58700/graph","html_url":"https://unchartedknowledge.5gfusion.net/v2/page/gutenberg_58700","id":"gutenberg_58700","license":"Public Domain (US)","rights_basis":"gutenberg_metadata_copyright_false","source":"gutenberg","source_url":"https://www.gutenberg.org/ebooks/58700","summary":null,"tags":["Beccaria, Cesare, marchese di, 1738-1794. Dei delitti e delle pene","Capital punishment","Category: Biographies","Category: History - Modern (1750+)","Category: Law & Criminology","Category: Philosophy & Ethics","Crime","Criminal law","Law reform","Punishment","Torture"],"text":"Produced by Turgut Dincer and the Online Distributed\nProofreading Team at http://www.pgdp.net (This file was\nproduced from images generously made available by The\nInternet Archive)\n\n\n\n\n\n\n\n\n\n\nCRIMES AND PUNISHMENTS\n\n\n\n\nBY THE SAME AUTHOR.\n\nCrown 8vo. cloth extra, 7_s._ 6_d._\n\n\nPRIMITIVE MANNERS AND CUSTOMS.\n\nBy JAMES A. FARRER.\n\n\u2018A book which is really both instructive and amusing, and which will open\na new field of thought to many readers.\u2019\u2014ATHEN\u00c6UM.\n\n\u2018An admirable example of the application of the scientific method and the\nworking of the truly scientific spirit.\u2019\u2014SATURDAY REVIEW.\n\nCHATTO & WINDUS, Piccadilly, W.\n\n\n\n\n CRIMES\n AND\n PUNISHMENTS\n\n INCLUDING A NEW TRANSLATION OF\n _BECCARIA\u2019S \u2018DEI DELITTI & DELLE PENE\u2019_\n\n BY\n JAMES ANSON FARRER\n\n [Illustration]\n\n London\n CHATTO & WINDUS, PICCADILLY\n 1880\n\n _All rights reserved_\n\n\n\n\n_PREFACE._\n\n\nThe reason for translating afresh Beccaria\u2019s \u2018Dei Delitti e delle Pene\u2019\n(\u2018Crimes and Punishments\u2019) is, that it is a classical work of its kind,\nand that the interest which belongs to it is still far from being merely\nhistorical.\n\nIt was translated into English long ago; but the change in the order of\nthe several chapters and paragraphs, which the work underwent before it\nwas clothed in its final dress, is so great, that the new translation and\nthe old one really constitute quite different books.\n\nThe object of the preliminary chapters is to place the historical\nimportance of the original in its just light, and to increase the\ninterest of the subjects it discusses.\n\nThe Translator has abstained from all criticism or comment of the\noriginal, less from complete agreement with all its ideas than from the\nconviction that annotations are more often vexatious than profitable,\nand are best left to the reader to make for himself. There is scarcely a\nsentence in the book on which a commentator might not be prolix.\n\nTo combine the maximum of perspicuity with the maximum of fidelity to the\noriginal has been the cardinal principle observed in the translation.\nBut it would, of course, have been no less impossible than contrary\nto the spirit of the original to have attempted to render perfectly\ncomprehensible what the author purposely wrapped in obscurity. A\ntranslation can but follow the lights and shades of the surface it\nreflects, rendering clear what is clear in the original, and opaque what\nis opaque.\n\n\n\n\n_CONTENTS._\n\n\n PAGE\n\n CHAPTER I.\n\n BECCARIA\u2019S LIFE AND CHARACTER.\n\n State of Lombardy under Count Firmian\u2014The state of criminal\n law\u2014Torture still in use\u2014The abolition of torture before\n Beccaria\u2014Beccaria not a lawyer by profession\u2014Autobiographical\n letter of Beccaria to the Abb\u00e9 Morellet\u2014Influence on\n Beccaria of Montesquieu and Helvetius\u2014His philosophy of life\n and truth\u2014His friends, the Verri\u2014Connection with Pietro\n Verri\u2014The Caff\u00e9 periodical\u2014Reception of the \u2018Dei Delitti\u2019 in\n Paris\u2014Translation of it by Morellet\u2014Commentary by Voltaire\u2014The\n Swiss medal\u2014Beccaria\u2019s fear of ecclesiastical persecution a\n motive for occasional obscurity\u2014Feeling in Venice against\n the author\u2014Facchinei\u2019s criticism\u2014Protection of Count\n Firmian\u2014Adverse criticism by contemporary lawyers\u2014Ramsay\u2019s\n letter to Diderot, illustrative of the despair of\n reform\u2014Beccaria\u2019s journey to Paris\u2014His speedy return\u2014Enmity\n and jealousy of Pietro Verri\u2014Beccaria\u2019s invitation to St.\n Petersburg\u2014His lectures on political economy, and later life 1\n\n CHAPTER II.\n\n THE GENERAL INFLUENCE OF BECCARIA ON LEGISLATION.\n\n Present inconceivability of torture due to Beccaria\u2014How far\n he was the first to write against it\u2014Torture first abolished\n in England\u2014Beccaria\u2019s influence in Russia\u2014Quotations\n from his treatise in Catharine\u2019s instruction for the new\n code\u2014Beccaria\u2019s influence in France; Tuscany; Austria;\n Pennsylvania\u2014Beccaria the first advocate of the abolition\n of capital punishment\u2014Relative severity of death and other\n penalties\u2014Slight relation of crime to punishment\u2014Reasons\n why capital punishment is always more uncertain than other\n penalties\u2014Cases accounting for its uncertainty\u2014The efficiency\n of a punishment its real test\u2014Futility of discussing the\n general right of punishment\u2014Instances of the abolition of\n capital punishment in ancient and modern times\u2014The argument for\n its abolition the same as that for the abolition of torture 29\n\n CHAPTER III.\n\n THE INFLUENCE OF BECCARIA IN ENGLAND.\n\n General debt of English law to Beccaria\u2014English utilitarianism\n due to Beccaria\u2014His influence first traceable in\n Blackstone\u2014Fallacy of old criminal law in making the amount\n of temptation the measure of punishment\u2014Eden the first to\n expose it in his \u2018Principles of Penal Law\u2019\u2014Attitude of\n men of letters to the criminal law, as of Goldsmith, Lord\n Kames, and Fielding\u2014First attempt at law reform by Sir W.\n Meredith\u2014Constant opposition of the House of Lords\u2014Effect on\n reform of Madan\u2019s \u2018Executive Justice\u2019 and Paley\u2019s chapter on\n Crimes and Punishments\u2014Relation of Paley to Lord Chief Justice\n Ellenborough\u2014Paley\u2019s defence of English law\u2014His approval\n of the suggestion of throwing murderers into a den of wild\n beasts\u2014Howard\u2019s ideas of reform and contribution to it\u2014Bad\n effect of the French Revolution in England\u2014Romilly\u2019s original\n idea of reform\u2014His Privately Stealing Bill\u2014His criticism of\n Paley\u2014His Shoplifting Bill rejected by the Lords\u2014The pillory\n defended by Lord Ellenborough\u2014Capital punishment for forgery by\n Lord Tenterden\u2014Rapid changes after the Reform Bill\u2014The triumph\n of Beccaria\u2019s principles 46\n\n CHAPTER IV.\n\n THE PROBLEMS OF PENOLOGY.\n\n The spirit of Beccaria\u2019s work\u2014The slow progress of penology\n as a science\u2014Its difficulties\u2014Confusion of guilty and\n innocent\u2014Relation of intention to crime\u2014Objects and animals\n once part of the criminal world\u2014Penal laws the expression\n of moral sentiments, and also the cause of them\u2014Tendency\n of actions to remain immoral when they have ceased to be\n penal\u2014Illustration from suicide and infanticide\u2014The Equality of\n punishment, its Analogy and Proportion to crime, as principles\n of penal law\u2014The object of punishment\u2014The difficulties of\n the deterrent-and-reformative theory\u2014The object of law to\n regulate natural vindictiveness\u2014Traceable historically to this\n purpose\u2014The measure of punishment on this theory\u2014Absence of any\n such measure at present\u2014Possibility of a fixed scale of crime\n and punishment illustrated by the Chinese code\u2014The question of\n aggravated penalties for re-convictions\u2014The custom contrary\n to the spirit of the laws: its evil results\u2014Limitations to\n the universality of the custom\u2014Its error of principle proved\n by number of re-convictions\u2014The preventiveness of punishment\n diminished by its great uncertainty\u2014Frequent changes of\n English penal system\u2014Failure of present system to reform\n or deter\u2014Punishment itself a cause of crime\u2014Its possible\n relaxation\u2014Punishments most fitted for injuries to the person,\n or for offences like cruelty to animals\u2014Indirect preventives of\n crime\u2014A Prisoners\u2019 Fund\u2014Cumulative sentences\u2014Conclusion 69\n\n BECCARIA\u2019S \u2018CRIMES AND PUNISHMENTS,\u2019 TRANSLATED.\n\n CHAP.\n\n TO THE READER 111\n\n I. INTRODUCTION 117\n\n II. THE ORIGIN OF PUNISHMENTS\u2014RIGHT OF PUNISHMENT 121\n\n III. CONSEQUENCES 124\n\n IV. INTERPRETATION OF THE LAWS 125\n\n V. OBSCURITY OF THE LAWS 130\n\n VI. IMPRISONMENT 132\n\n VII. PROOFS AND FORMS OF JUDGMENTS 134\n\n VIII. WITNESSES 138\n\n IX. SECRET ACCUSATIONS 139\n\n X. LEADING QUESTIONS 144\n\n XI. OATHS 146\n\n XII. TORTURE 148\n\n XIII. PROSECUTIONS AND PRESCRIPTIONS 157\n\n XIV. CRIMINAL ATTEMPTS, ACCOMPLICES, IMPUNITY 162\n\n XV. THE MILDNESS OF PUNISHMENTS 165\n\n XVI. CAPITAL PUNISHMENT 169\n\n XVII. BANISHMENT AND CONFISCATIONS 180\n\n XVIII. INFAMY 183\n\n XIX. PROMPTNESS OF PUNISHMENTS 185\n\n XX. CERTAINTY OF PUNISHMENTS\u2014PARDONS 189\n\n XXI. ASYLUMS OF REFUGE 192\n\n XXII. PROSCRIPTION 194\n\n XXIII. PROPORTION BETWEEN CRIMES AND PUNISHMENTS 196\n\n XXIV. MEASURE OF PUNISHMENTS 199\n\n XXV. DIVISION OF PUNISHMENTS 202\n\n XXVI. CRIMES OF HIGH TREASON 204\n\n XXVII. CRIMES AGAINST PERSONAL SECURITY\u2014DEEDS OF VIOLENCE 205\n\n XXVIII. INJURIES 208\n\n XXIX. DUELS 212\n\n XXX. THEFTS 213\n\n XXXI. SMUGGLING 214\n\n XXXII. DEBTORS 216\n\n XXXIII. PUBLIC PEACE 220\n\n XXXIV. POLITICAL IDLENESS 221\n\n XXXV. SUICIDE 222\n\n XXXVI. CRIMES OF DIFFICULT PROOF 227\n\n XXXVII. A PARTICULAR KIND OF CRIME 231\n\n XXXVIII. SOURCES OF ERRORS AND INJUSTICE IN LEGISLATION; AND\n FIRSTLY OF FALSE IDEAS OF UTILITY 233\n\n XXXIX. FAMILY SPIRIT 235\n\n XL. THE TREASURY 240\n\n XLI. THE PREVENTION OF CRIMES\u2014KNOWLEDGE\u2014MAGISTRATES\u2014REWARDS 242\n\n XLII. CONCLUSION 251\n\n * * * * *\n\n \u2018All men, whether singly or collectively, naturally do wrong,\n nor is there any law which will prevent it. For every kind\n of punishment has been successively tried by mankind, if\n haply they might suffer less injury from malefactors. And it\n is probable that in their origin punishments for even the\n gravest crimes are comparatively mild, but that, as they\n are disregarded, most of them come in course of time to be\n punishments of death; yet this in its turn is also disregarded.\n Either, therefore, some greater terror than death must be\n invented, or death at least serves not as a deterrent, men\n being led to risk it, sometimes by poverty, which emboldens\n them through necessity, sometimes by power, which makes\n them overreaching and insolent; or sometimes by some other\n circumstance which subordinates all a man\u2019s passions to some\n one passion that is insuperable and dominant.\u2026 And it is\n simply impossible, and a very foolish idea, to think that,\n when human nature is firmly bent on doing anything, it can\n be deterred from it either by force of law or by any other\n terror.\u2019\u2014THUCYDIDES.\n\n \u2018How many condemnations have I seen more criminal than the\n crimes themselves!\u2019\u2014MONTAIGNE.\n\n\n\n\nCRIMES AND PUNISHMENTS.\n\n\n\n\nCHAPTER I.\n\nBECCARIA\u2019S LIFE AND CHARACTER.\n\n\nThe \u2018Dei Delitti e delle Pene\u2019 was published for the first time in\n1764. It quickly ran through several editions, and was first translated\ninto French in 1766 by the Abb\u00e9 Morellet, since which time it has been\ntranslated into most of the languages of Europe, not excluding Greek and\nRussian.\n\nThe author of the book was a native of Milan, then part of the Austrian\ndominions, and under the governorship of Count Firmian, a worthy\nrepresentative of the liberal despotism of Maria Theresa and her chief\nminister, Kaunitz. Under Firmian\u2019s administration a period of beneficial\nreforms began for Lombardy. Agriculture was encouraged, museums and\nlibraries extended, great works of public utility carried on. Even\nthe Church was shorn of her privileges, and before Firmian had been\nten years in Lombardy all traces of ecclesiastical immunity had been\ndestroyed; the jurisdiction of the Church, and her power to hold lands in\nmortmain were restricted, the right of asylum was abolished, and, above\nall, the Holy Office of the Inquisition. Let these few facts suffice to\nindicate the spirit of the immediate political surroundings in the midst\nof which Beccaria\u2019s work appeared.\n\nBut, in spite of the liberalism of the Count, the penal laws and\ncustoms of Lombardy remained the same; and the cruel legal procedure\nby torture existed still, untouched by the salutary reforms effected\nin other departments of the Government. There was the preparatory\ntorture, to extort confession from criminals not yet condemned; there\nwas torture for the discovery of a criminal\u2019s accomplices; and there was\nthe extraordinary or greater torture, which preceded the execution of\na sentence of death. It is true that torture could only be applied to\ncrimes of a capital nature, but there was scarcely an act in the possible\ncategory of crimes that was not then punishable with death. Proofs of\nguilt were sought almost entirely from torture and secret accusations,\nwhilst penalties depended less on the text of any known law than on the\ndiscretion\u2014that is, on the caprice\u2014of the magistrate.\n\nIt was this system that Beccaria\u2019s little work destroyed, and had that\nbeen its only result, it would still deserve to live in men\u2019s memories\nfor its historical interest alone. For upon the legislation of that time,\nand especially upon that of Italy, this pamphlet on criminal law broke\nlike a ray of sunlight on a dungeon floor, making even blacker that\nwhich was black before by the very brilliancy which it shed upon it. To\nBeccaria primarily, though not of course solely, belongs the glory of\nhaving expelled the use of torture from every legal tribunal throughout\nChristendom.\n\nFrederick the Great had already abolished it in Prussia;[1] it had been\ndiscontinued in Sweden; it was not recognised in the military codes of\nEurope, and Beccaria said it was not in use in England. This was true\ngenerally, although the _peine forte et dure_, by which a prisoner who\nwould not plead was subjected to be squeezed nearly to death by an iron\nweight, was not abolished till the year 1771.[2]\n\nIt is remarkable that a book which has done more for law reform than any\nother before or since should have been written by a man who was not a\nlawyer by profession, who was totally unversed in legal practice, and\nwho was only twenty-six when he attacked a system of law which had on\nits side all authority, living and dead. Hume was not twenty-seven when\nhe published his \u2018Treatise on Human Nature,\u2019 nor was Berkeley more than\ntwenty-six when he published his \u2018Principles of Human Knowledge.\u2019 The\nsimilar precocity displayed by Beccaria is suggestive, therefore, of the\ninquiry, how far the greatest revolutions in the thoughts or customs of\nthe world have been due to writers under thirty years of age.\n\nThe following letter by Beccaria to the Abb\u00e9 Morellet in acknowledgment\nof the latter\u2019s translation of his treatise is perhaps the best\nintroduction to the life and character of the author. The letter in\nquestion has been quoted by Villemain in proof of the debt owed by the\nItalian literature of the last century to that of France, but from the\nallusions therein contained to Hume and the \u2018Spectator\u2019 it is evident\nthat something also was due to our own. Beccaria had spent eight years\nof his youth in the college of the Jesuits at Parma, with what sense of\ngratitude this letter will show. The following is a translation of the\ngreater part of it:\u2014\n\n Your letter has raised in me sentiments of the deepest esteem,\n of the greatest gratitude, and the most tender friendship; nor\n can I confess to you how honoured I feel at seeing my work\n translated into the language of a nation which is the mistress\n and illuminator of Europe. I owe everything to French books.\n They first raised in my mind feelings of humanity which had\n been suffocated by eight years of a fanatical education. I\n cannot express to you the pleasure with which I have read your\n translation; you have embellished the original, and your\n arrangement seems more natural than, and preferable to, my\n own. You had no need to fear offending the author\u2019s vanity:\n in the first place, because a book that treats of the cause\n of humanity belongs, when once published, to the world and\n all nations equally; and as to myself in particular, I should\n have made little progress in the philosophy of the heart,\n which I place above that of the intellect, had I not acquired\n the courage to see and love the truth. I hope that the fifth\n edition, which will appear shortly, will be soon exhausted,\n and I assure you that in the sixth I will follow entirely, or\n nearly so, the arrangement of your translation, which places\n the truth in a better light than I have sought to place it in.\n\n As to the obscurity you find in the work, I heard, as I wrote,\n the clash of chains that superstition still shakes, and the\n cries of fanaticism that drown the voice of truth; and the\n perception of this frightful spectacle induced me sometimes to\n veil the truth in clouds. I wished to defend truth, without\n making myself her martyr. This idea of the necessity of\n obscurity has made me obscure sometimes without necessity. Add\n to this my inexperience and my want of practice in writing,\n pardonable in an author of twenty-eight,[3] who only five years\n ago first set foot in the career of letters.\n\n D\u2019Alembert, Diderot, Helvetius, Buffon, Hume, illustrious\n names, which no one can hear without emotion! Your immortal\n works are my continual study, the object of my occupation by\n day, of my meditation in the silence of night. Full of the\n truth which you teach, how could I ever have burned incense to\n worshipped error, or debased myself to lie to posterity? I find\n myself rewarded beyond my hopes in the signs of esteem I have\n received from these celebrated persons, my masters. Convey to\n each of these, I pray you, my most humble thanks, and assure\n them that I feel for them that profound and true respect which\n a feeling soul entertains for truth and virtue.\n\n My occupation is to cultivate philosophy in peace, and so to\n satisfy my three strongest passions, the love, that is, of\n literary fame, the love of liberty, and pity for the ills of\n mankind, slaves of so many errors. My conversion to philosophy\n only dates back five years, and I owe it to my perusal of\n the \u2018Lettres Persanes.\u2019 The second work that completed my\n mental revolution was that of Helvetius. The latter forced me\n irresistibly into the way of truth, and aroused my attention\n for the first time to the blindness and miseries of humanity.\n\n \u2026 I lead a tranquil and solitary life, if a select company of\n friends in which the heart and mind are in continual movement\n can be called solitude. This is my consolation, and prevents me\n feeling in my own country as if I were in exile.\n\n My country is quite immersed in prejudices, left in it by its\n ancient masters. The Milanese have no pardon for those who\n would have them live in the eighteenth century. In a capital\n which counts 120,000 inhabitants, you will scarcely find twenty\n who love to instruct themselves, and who sacrifice to truth\n and virtue. My friends and I, persuaded that periodical works\n are among the best means for tempting to some sort of reading\n minds incapable of more serious application, are publishing in\n papers, after the manner of the English \u2018Spectator,\u2019 a work\n which in England has contributed so much to increase mental\n culture and the progress of good sense. The French philosophers\n have a colony in this America, and we are their disciples\n because we are the disciples of reason, &c.\n\nThus, the two writers to whom Beccaria owed most were Montesquieu and\nHelvetius. The \u2018Lettres Persanes\u2019 of the former, which satirised so many\nthings then in custom, contained but little about penal laws; but the\nidea is there started for the first time that crimes depend but little\non the mildness or severity of the punishments attached to them. \u2018The\nimagination,\u2019 says the writer, \u2018bends of itself to the customs of the\ncountry; and eight days of prison or a slight fine have as much terror\nfor a European brought up in a country of mild manners as the loss of\nan arm would have for an Asiatic.\u2019[4] The \u2018Esprit des Lois,\u2019 by the\nsame author, probably contributed more to the formation of Beccaria\u2019s\nthoughts than the \u2018Lettres Persanes,\u2019 for it is impossible to read the\ntwelfth book of that work without being struck by the resemblance of\nideas. The \u2018De L\u2019Esprit\u2019 of Helvetius was condemned by the Sorbonne as \u2018a\ncombination of all the various kinds of poison scattered through modern\nbooks.\u2019 Yet it was one of the most influential books of the time. We\nfind Hume recommending it to Adam Smith for its agreeable composition\nfather than for its philosophy; and a writer who had much in common with\nBeccaria drew from it the same inspiration that he did. That writer was\nBentham, who tells us that when he was about twenty, and on a visit to\nhis father and stepmother in the country, he would often walk behind them\nreading a book, and that his favourite author was Helvetius.\n\nThe influence of the predominant French philosophy appears throughout\nBeccaria\u2019s treatise. Human justice is based on the idea of public\nutility, and the object of legislation is to conduct men to the greatest\npossible happiness or to the least possible misery. The vein of\ndissatisfaction with life and of disbelief in human virtue is a marked\nfeature of Beccaria\u2019s philosophy. To him life is a desert, in which a\nfew physical pleasures lie scattered here and there;[5] his own country\nis only a place of exile, save for the presence of a few friends engaged\nlike himself in a war with ignorance. Human ideas of morality and virtue\nhave only been produced in the course of many centuries and after much\nbloodshed, but slow and difficult as their growth has been, they are ever\nready to disappear at the slightest breeze that blows against them.\n\nBeccaria entertains a similar despair of truth. The history of mankind\nrepresents a vast sea of errors, in which at rare intervals a few truths\nonly float uppermost; and the durability of great truths is as that of\na flash of lightning when compared with the long and dark night which\nenvelops humanity. For this reason he is ready to be the servant of\ntruth, not her martyr; and he recommends in the search for truth, as in\nthe other affairs of life, a little of that \u2018philosophical indolence\u2019\nwhich cares not too much about results, and which a writer like Montaigne\nis best fitted to inspire.[6]\n\nThe few select friends who made life at Milan just supportable were\nPietro and Alessandro Verri, Frisi, and some others. Pietro Verri was ten\nyears older than Beccaria, and it was at his instance that the latter\nwrote his first treatise on a subject which then demanded some attention,\nnamely, \u2018The Disorders and Remedies of the Coinage.\u2019 This work was\npublished two years before the \u2018Crimes and Punishments,\u2019 but though it\nprovoked much discussion at the time, it has long since ceased to have\nany interest.\n\nCount Pietro Verri was the son of Gabriel, who was distinguished alike\nfor his legal knowledge and high position in Milan. At the house of\nPietro, Beccaria and the other friends used to meet for the discussion\nand study of political and social questions. Alessandro, the younger\nbrother of Pietro, held the office of \u2018Protector of Prisoners,\u2019 an office\nwhich consisted in visiting the prisons, listening to the grievances of\nthe inmates, and discovering, if possible, reasons for their defence or\nfor mercy. The distressing sights he was witness of in this capacity are\nsaid to have had the most marked effect upon him; and there is no doubt\nthat this fact caused the attention of the friends to be so much directed\nto the state of the penal laws. It is believed to have been at the\ninstigation of the two brothers that Beccaria undertook the work which\nwas destined to make his name so famous.\n\nWhy then did Pietro Verri not write it himself? The answer would seem to\nbe, out of deference for the position and opinions of his father. It was\nsome time later that Gabriel defended the use of torture in the Milanese\nSenate, and Pietro wrote a work on torture which he did not publish\nin his father\u2019s lifetime. It was probably due also to the father\u2019s\nposition that Alessandro held his office of Protector of the Prisoners,\nso that there were obvious reasons which prevented either brother from\nundertaking the work in question.\n\nIt was at one time said that the work really was Pietro Verri\u2019s and not\nBeccaria\u2019s, for it was published anonymously, and away from Milan. The\ndomestic circumstances of Pietro lent some countenance to this story,\nas did also the fact that he charged himself with the trouble of making\na correct copy of the manuscript, so that a copy of the treatise does\nactually exist in Pietro\u2019s handwriting. The story, however, has long\nsince been disproved; yet to show the great interest which Pietro took in\nthe work, and the ready assistance he gave to his friend, a letter to\nhim from Beccaria, with respect to the second edition, deserves mention,\nin which Beccaria begs him not only to revise the spelling correctly,\nbut generally to erase, add, and correct, as he pleases. It would appear\nthat he was already tired of literary success, for he tells his friend,\nthat but for the motive of preserving his esteem and of affording fresh\naliment to their friendship, he should from indolence prefer obscurity to\nglory itself.\n\nThere is no doubt that Beccaria always had a strong preference for the\ncontemplative as opposed to the practical and active life, and that but\nfor his friend Pietro Verri he would probably never have distinguished\nhimself at all. He would have said with Plato that a wise man should\nregard life as a storm, and hide himself behind a wall till it be\noverpast. He almost does say this in his essay on the \u2018Pleasures of the\nImagination,\u2019 published soon after the \u2018Crimes and Punishments.\u2019 He\nadvises his reader to stand aside and look on at the rest of mankind as\nthey run about in their blind confusion; to make his relations with them\nas few as possible; and if he will do them any good, to do it at that\ndistance which will prevent them from upsetting him or drawing him away\nin their own vortex. Let him in happy contemplation enjoy in silence the\nfew moments that separate his birth from his disappearance. Let him leave\nmen to fight, to hope, and to die; and with a smile both at himself and\nat them, let him repose softly on that enlightened indifference with\nregard to human things which will not deprive him of the pleasure of\nbeing just and beneficent, but which will spare him from those useless\ntroubles and changes from evil to good that vex the greater part of\nmankind.\n\nThis essay on the \u2018Imagination\u2019 was published soon after the \u2018Crimes and\nPunishments\u2019 in the periodical to which Beccaria alludes in his letter\nto Morellet. \u2018The Caff\u00e9\u2019 was the name of the periodical which, from June\n1764, he and his friends published every tenth day for a period of two\nyears. The model of the paper was the English \u2018Spectator,\u2019 and its object\nto propagate useful knowledge pleasantly among the Milanese, whilst its\nname rested on the supposition that the friends who composed it executed\ntheir labours during meetings in a coffee-house. The most interesting\ncontributions to it by Beccaria are his \u2018Fragment on Style,\u2019 his article\non \u2018Periodical Newspapers,\u2019 and his essay on the \u2018Pleasures of the\nImagination.\u2019\n\nThe publication of the \u2018Delitti e delle Pene\u2019 interrupted its author\u2019s\ndreams of philosophical calm, by fulfilling his hopes of literary fame.\nThe French encyclop\u00e6dists were the first to recognise its merits, and\nD\u2019Alembert, the mathematician, at once predicted for the writer the\nreward of an immortal reputation. Morellet\u2019s translation, in which the\narrangement, though not the matter of the text, was entirely altered, ran\nthrough seven editions in six months, and Beccaria, as has been seen, was\nonly too delighted with the honour thus conferred on him to complain in\nany way of the liberties taken by the translator with the original.\n\nA still greater honour was the commentary written by Voltaire. The fact\nthat only within a few miles of his own residence a girl of eighteen had\nbeen hung for the exposure of a bastard child led Voltaire to welcome\nBeccaria\u2019s work as a sign that a period of softer manners and more humane\nlaws was about to dawn upon the world\u2019s history. Should not a people,\nhe argues, who like the French pique themselves on their politeness\nalso pride themselves on their humanity? Should they retain the use of\ntorture, merely because it was an ancient custom, when the experience of\nEngland and other countries showed that crimes were not more numerous\nin countries where it was not in use, and when reason indicated the\nabsurdity of inflicting on a man, before his condemnation, a punishment\nmore horrible than would await his proved guilt? What could be more\ncruel, too, than the maxim of law that a man who forfeited his life\nforfeited his estates? What more inhuman than thus to punish a whole\nfamily for the crime of an individual, perhaps condemning a wife and\nchildren to beg their bread because the head of the family had harboured\na Protestant preacher or listened to his sermon in a cavern or a desert?\nAmid the contrariety of laws that governed France, the object of the\ncriminal procedure to bring an accused man to destruction might be said\nto be the only law which was uniform throughout the country.\n\nSo signal a success in France was a sufficient guarantee of success\nelsewhere. A knowledge of the book must have speedily crossed the\nChannel, for Blackstone quoted it the very year after its publication.\nIt was first translated into English in 1768, together with Voltaire\u2019s\ncommentary; but just as Morellet\u2019s translation professed to have been\npublished at Philadelphia, so the English translator kept his name\na secret. The Economical Society of Berne, which was accustomed to\nbestow a gold medal on the writer of the best treatise on any given\nsubject, violated its own rules in favour of the anonymous writer of the\n\u2018Delitti,\u2019 inviting him to disclose his name, and to accept the gold\nmedal \u2018as a sign of esteem due to a citizen who had dared to raise his\nvoice in favour of humanity against the most deeply engrained prejudices.\u2019\n\nBut there was another side to the brightness of this success. In\nliterature as in war no position of honour can be won or held without\ndanger, and of this Beccaria seems to have been conscious when he\npleaded against the charge of obscurity, that in writing he had had\nbefore his eyes the fear of ecclesiastical persecution. His love for\ntruth, he confessed, stopped short at the risk of martyrdom. He had,\nindeed, three very clear warnings to justify his fears. Muratori, the\nhistorian, had suffered much from accusations of heresy and atheism, and\nhad owed his immunity from worse consequences chiefly to the liberal\nprotection of Pope Benedict XIV. The Marquis Scipio Maffei had also\nincurred similar charges for his historical handling of the subject of\nFree-will. But there was even a stronger warning than these, and one not\nlikely to be lost on a man with youth and life before him; that was the\nfate of the unfortunate Giannone, who, only sixteen years before Beccaria\nwrote, had ended with his life in the citadel of Turin an imprisonment\nthat had lasted twenty years, for certain observations on the Church of\nRome which he had been rash enough to insert in his \u2018History of Naples.\u2019\n\nOf all the attacks which the publication of the \u2018Dei Delitti\u2019 provoked,\nthe bitterest came naturally from a theological pen. At the very time\nthat Beccaria\u2019s work appeared, the Republic of Venice was occupied\nin a violent contest touching the Inquisitorial Council of Ten; and\nimagining that Beccaria\u2019s remarks about secret accusations had been\ndirected against the procedure of their famous tribunal, whilst they\nattributed the work to a Venetian nobleman called Quirini, they forbade\nits circulation under pain of death. It was on their behalf and with this\nbelief that the Dominican Padre, Facchinei, took up his pen and wrote a\nbook, entitled, \u2018Notes and Observations on the \u201cDei Delitti,\u201d\u2019 in which\nhe argued, among other things, not only that secret accusations were the\nbest, cheapest, and most effective method of carrying out justice, but\nthat torture was a kind of mercy to a criminal, purging him in his death\nfrom the sin of falsehood.\n\nIn these \u2018Notes and Observations\u2019 Beccaria and his work were assailed\nwith that vigour and lucidity for which the Dominican school of writing\nhas always been so conspicuous. The author was described as \u2018a man\nof narrow mind,\u2019 \u2018a madman,\u2019 \u2018a stupid impostor,\u2019 \u2018full of poisonous\nbitterness and calumnious mordacity.\u2019 He was accused of writing \u2018with\nsacrilegious imposture against the Inquisition,\u2019 of believing that\n\u2018religion was incompatible with the good government of a state;\u2019 nay, he\nwas condemned \u2018by all the reasonable world as the enemy of Christianity,\na bad philosopher, and a bad man.\u2019 His book was stigmatised as \u2018sprung\nfrom the deepest abyss of darkness, horrible, monstrous, full of poison,\u2019\ncontaining \u2018miserable arguments,\u2019 \u2018insolent blasphemies,\u2019 and so forth.\n\nThis fulmination reached Milan on January 15, 1765, and on the 21st the\nRisposta, or reply, was ready for publication.[7] This defence was the\nwork of his friends, the Verris, and was published, like the original,\nanonymously; as it was written in the first person throughout, it was\ngenerally at the time and even till lately ascribed to the same author as\nthe original, but the fact is now established beyond doubt that the real\nauthors were Pietro and his brother. The writers wisely refrained from\nthe use of retaliatory language, confining themselves in their defence\nsolely to charges of irreligion and sedition, responding to six which\naccused Beccaria of the latter, and to twenty-three which declared him\nguilty of the former.\n\nBut it is probable that Beccaria owed his escape from persecution less\nto his apology than to the liberal protection of Count Firmian, who in\nhis report of the affair to the Court of Vienna spoke of the Risposta as\n\u2018full of moderation and honourable to the character of its author.\u2019 That\nthe Count fully agreed with Beccaria\u2019s opinions on torture is proved by a\nletter he wrote, in which he declares himself to have been much pleased\nwith what Beccaria had said on the subject. His vanity, he said, had been\nflattered by it, for his own feelings about torture had always been the\nsame. The book seemed to him written with much love of humanity and much\nimagination. Beccaria always acknowledged his gratitude to the Count for\nhis action in this matter. To Morellet he wrote, that he owed the Count\nhis tranquillity, in having protected his book; and when, a few years\nlater, he published his book on Style, he dedicated it to Firmian as his\nbenefactor, thanking him for having scattered the clouds that envy and\nignorance had gathered thickly over his head, and for having protected\none whose only object had been to declare with the greatest caution and\nrespect the interests of humanity.\n\nLess dangerous personally than the theological criticism, but more\npernicious to reform, was the hostile criticism that at once appeared\nfrom the thick phalanx of professional lawyers, the sound-thinking\n\u2018practical men.\u2019 From whom only two short extracts need be rescued\nfrom oblivion, as illustrations of the objections once raised against\nideas which have since become the common groundwork of all subsequent\nlegislation, in America as well as in Europe. The first extract is from\na work on criminal justice by a lawyer of Provence, who in 1770 wrote as\nfollows:\u2014\n\n The treatise \u2018Dei Delitti,\u2019 instead of throwing any light on\n the subject of crimes, or on the manner in which they should be\n punished, tends to establish a system of the most dangerous and\n novel ideas, which, if adopted, would go so far as to overturn\n laws received hitherto by the greater part of all civilised\n nations.\n\nAnd an advocate to the Parliament of Paris thus expressed himself, in\nrefutation of Beccaria:\u2014\n\n What can be thought of an author who presumes to establish his\n system on the _d\u00e9bris_ of all hitherto accepted notions, who\n to accredit it condemns all civilised nations, and who spares\n neither systems of law, nor magistrates, nor lawyers?\n\nBut of far greater historical interest than such criticism is that\nof Ramsay, the Scotch poet and painter, to whom a copy of Beccaria\u2019s\ntreatise had been shown by Diderot, and who wrote a letter about it\nto the latter, which, though it contains some very just criticisms on\nBeccaria, yet reads for the most part very curiously by the light of\nsubsequent history, and illustrates graphically the despair of all reform\nthen felt by most men of reflection.[8]\n\nRamsay argues that the penal laws of a particular country can only be\nconsidered with reference to the needs of a particular country, and not\nin the abstract; that the government of a country will always enforce\nlaws with a view to its own security; and that nothing less than a\ngeneral revolution will ever make the holders of political power listen\nfor a moment to the claims of philosophers.\n\n But (he goes on) since it would be an absurd folly to expect\n this general revolution, this general reconstruction, which\n could only be effected by very violent means, such as would be\n at least a very great misfortune for the present generation,\n and hold out an uncertain prospect of compensation for the\n next one, every speculative work, like the \u2018Dei Delitti e\n delle Pene,\u2019 enters into the category of Utopias, of Platonic\n Republics and other ideal governments; which display, indeed,\n the wit, the humanity, and the goodness of their authors, but\n which never have had nor ever will have any influence on human\n affairs.\u2026\n\n I know that those general principles which tend to enlighten\n and improve the human race are not absolutely useless \u2026 that\n the enlightenment of nations is not without some effect on\n their rulers \u2026 provided that the prerogative of the latter,\n their power, their security, their authority, their safety,\n is not touched thereby.\u2026 I know well that this general\n enlightenment, so much boasted of, is a beautiful and glorious\n chimera, with which philosophers love to amuse themselves, but\n which would soon disappear if they would open history, and see\n therefrom to what causes improved institutions are due. The\n nations of antiquity have passed, and those of the present\n will pass, before philosophy and its influence have reformed a\n single government.\u2026\n\n \u2026 The cries of sages and philosophers are as the cries of the\n innocent man on the wheel, where they have never prevented, nor\n will ever prevent him from expiring, with his eyes upturned\n to heaven, which will perhaps some day stir up enthusiasm, or\n religious madness, or some other avenging folly, to accomplish\n all that their wisdom has failed to do. It is never the oration\n of the philosopher which disarms the powerful ruler; it is\n something else, which the combination of chance events brings\n about. Meanwhile we must not seek to force it from him, but\n must entreat humbly for such good as he can grant us, that is\n which he can grant us without injury to himself.\n\nRamsay was so far right, that whether a revolution was the only hope for\ntheories like Beccaria\u2019s or not, the realisation of many of them was one\nof the first results of that general revolution, which seemed to Ramsay\nso impossible and undesirable. His letter, as it is a characteristic\nexpression of that common apathy and despair of change which afflict at\ntimes even the most sanguine and hopeful, so it is, from its misplaced\ndespair, a good cure for moods of like despondency. For the complete\ntriumph of Beccaria\u2019s theories about torture, to say nothing of other\nimprovements in law that he lived to witness, is perhaps the most signal\ninstance in history of the conquest of theory over practice. For albeit\nthat his theory was at total variance with the beliefs and ideas of the\nwhole practical school, Beccaria lived to see torture abolished, not only\nin Lombardy and Tuscany, but in Austria generally, in Portugal and in\nSweden, in Russia as well as in France. Yet Ramsay\u2019s fears at the time\nwere more reasonable than the hopes of Beccaria.\n\nThere was little of eventfulness in Beccaria\u2019s life, and the only\nepisode in it of interest was his visit to Paris in 1766. Thither he\nand his friend Pietro had been invited by Morellet, in the name of the\nphilosophers at Paris, and thither he started in October 1766; not with\nPietro, who could not leave Milan, but with Alessandro Verri, on a\njourney which was to include London as well as Paris, and was to occupy\nin all a period of six months.\n\nA few years earlier Beccaria could have imagined no greater honour. To\nassociate with the philosophers he so highly reverenced, as a philosopher\nhimself, what greater happiness or reward could he have asked? Yet when\nit came there was no charm in it; and it was with difficulty he could\nbe persuaded to go. For with his love for distinction there came into\ncompetition the love of his wife, and if he preferred her company to that\nof the wisest and wittiest celebrities of Paris, who shall say that he\nwas the worse philosopher for that?\n\nWhen the visit to Paris was contemplated it was a question of either not\ngoing at all or of leaving Teresa behind; there was not money enough for\nher to travel too. For Beccaria, though the son of a marquis and of noble\norigin, was not rich. When in his twenty-third year he married Teresa,\nhis father was so opposed to the match on the score of insufficiency of\nfortune, that for some time after the marriage he refused to receive the\nyoung couple into his house, and they lived in considerable poverty.\nAppeal had even been made to the Government itself to break off, if\npossible, so unsuitable a match; but the lovers had their own way, of\ncourse, in the end, though it was not for some time that the domestic\nquarrel was healed, and then, it appears, through the mediation of Pietro\nVerri.\n\nBeccaria would certainly have done better not to have gone to Paris\nat all. His letters to his wife during his absence show that he was\nmiserable all the time. In every letter he calculates the duration of\ntime that will elapse before his return, and there is an even current\nof distress and affection running through all the descriptions of his\njourney. The assurance is frequent that but for making himself ridiculous\nhe would return at once. From Lyons he writes that he is in a state of\nthe deepest melancholy; that even the French theatre he had so much\nlooked forward to fails to divert him; and he begs his wife to prepare\npeople for his speedy return by telling them that the air of France has a\nbad effect on his health.\n\nEven when Paris was reached, and Beccaria and Alessandro were warmly\nwelcomed by D\u2019Alembert, Morellet, Diderot, and Baron Holbach, the\nhomesickness remained. \u2018You would not believe,\u2019 says Beccaria to his\nwife, \u2018the welcomes, the politeness, the demonstrations of friendship\nand esteem, which they have shown to me and my companion. Diderot, Baron\nHolbach, and D\u2019Alembert especially enchant us. The latter is a superior\nman, and most simple at the same time. Diderot displays enthusiasm and\ngood humour in all he does. In short, nothing is wanting to me but\nyourself. All do their best to please me, and those who do so are the\ngreatest men in Europe. All of them deign to listen to me, and no one\nshows the slightest air of superiority.\u2019 Yet Morellet tells us that even\non arrival Beccaria was so absorbed in melancholy, that it was difficult\nto get four consecutive words from his mouth.\n\nSix days after his arrival Beccaria writes in a similar strain: that he\nis in the midst of adorations and the most flattering praises, considered\nas the companion and colleague of the greatest men in Europe, regarded\nwith admiration and curiosity, his company competed for; in the capital\nof pleasures, close to three theatres, one of them the Com\u00e9die Fran\u00e7aise,\nthe most interesting spectacle in the world; and that yet he is unhappy\nand discontented, and unable to find distraction in anything. He tells\nhis wife that he is in excellent health, but that she must say just the\ncontrary, in order that there may be a good pretext for his return; and\nthe better to ensure this, he sends his wife another letter which she\nmay show to his parents, and in which, at the end of much general news\nabout Paris, he alludes incidentally to the bad effect on his health of\ndrinking the waters of the Seine. He regrets having to resort to this\nfiction; but considers that he is justified by the circumstances.\n\nAccordingly he made a rapid journey back, leaving his companion to visit\nEngland alone; this expedition to Paris being the only event that ever\nbroke the even tenor of his life. His French friends rather deserted\nhim, Morellet in his memoirs going even so far as to speak of him as\nhalf-mad. But it was to his friendship with the Verris that this journey\nto Paris was most disastrous, and nothing is more mournful than the petty\njealousies which henceforth completely estranged from him his early\nfriends. The fault seems to have rested mainly with the two brothers,\nwhose letters (only recently published) reveal an amount of bitterness\nagainst Beccaria for which it is difficult to find any justification,\nand which disposes for ever of all claims of their writers to any real\nnobleness of character.[9] They complain to one another of Beccaria\u2019s\nParisian airs, of his literary pride, of his want of gratitude; they\nrejoice to think that his reputation is on the wane; that his illustrious\nfriends at Paris send him no copies of their books; that he gets no\nletters from Paris; nay, they even go so far as to welcome the adverse\ncriticisms of his \u2018Dei Delitti,\u2019 and to hope that his \u2018golden book\u2019 is\nshut up for ever.[10] Alessandro writes to his brother that all his\nthoughts are turned to the means of mortifying Beccaria; and the revenge\nthe brothers think most likely to humiliate him is for Alessandro to\nextend the limits of his travels, so as to compare favourably with\nBeccaria in the eyes of the Milanese. They delight in calling him a\nmadman, an imbecile, a harlequin; they lend a ready ear to all that\ngossip says in his discredit.[11] In the most trifling action Pietro\nsees an intended slight, and is especially sore where his literary\nambition is touched.[12] It angers him that Beccaria should receive\npraise for the Apology written against Facchinei, the work having been\nentirely written by himself, with some help from his brother, but with\nnot so much as a comma from the hand of Beccaria.[13] Some books which\nBeccaria had brought to him from Paris he imagined were really gifts\nto him from the authors; he believed that D\u2019Alembert had sent him his\n\u2018M\u00e9langes\u2019 of his own accord, not at the request of Beccaria, as the\nlatter had represented; but even Alessandro admits that it was concerning\nthe books, as Beccaria had said.[14] In short, the whole correspondence\nshows that Pietro Verri was extremely jealous of the success which he\nhimself had helped his friend to attain, and that disappointed literary\nvanity was the real explanation of his suddenly transmuted affection.\n\nBut, to turn from this unpleasant episode of Beccaria\u2019s life, Catharine\nII., soon after his return to Milan, invited him to St. Petersburg, to\nassist in the preparation of her intended code of laws. It would seem\nfrom one of Pietro Verri\u2019s letters that Beccaria was at first inclined\nto accept the proposal,[15] but it is improbable that any such offer\nwould really have tempted him to exchange Italian suns for Russian snows,\neven if Kaunitz and Firmian had not resolved to remove the temptation,\nby making his talents of service at home. This they did by making him\nProfessor of Political Economy in the Palatine School of Milan, in\nNovember 1768; and his published lectures on this subject form the\nlargest work he ever wrote.\n\nThere is no need to follow in further detail the life of Beccaria, for\nfrom this time to his death twenty-six years afterwards he never did\nnor wrote anything which again placed him conspicuously in the world\u2019s\neye.[16] His time was divided between the calls of his family and his\ncountry, but even as a member of the Government he never filled any very\nimportant post nor distinguished himself in any way above his colleagues.\nThree years before his death he became a member of a committee for the\nreform of the civil and criminal jurisprudence, and he and his former\nfriend Pietro Verri lived to see many of the ideals of their youth become\nthe actualities of their manhood, themselves helping to promote their\naccomplishment. It is characteristic of Beccaria that on two several\noccasions, when the King of Naples came to visit him in his house, he\nabsented himself purposely from the irksomeness of an interview. So he\nlived to the age of fifty-six, little noticed by the world, a lover\nof solitude rather than of society, preferring a few friends to many\nacquaintances, leading a quiet and useful life, but to the last true to\nthe philosophy he had professed in his youth, that it is better to live\nas a spectator of the world than as one with any direct interest in the\ngame.\n\n\n\n\nCHAPTER II.\n\nTHE GENERAL INFLUENCE OF BECCARIA ON LEGISLATION.\n\n\nIt is not easy in the days of a milder administration of penal laws than\na century ago the most sanguine could have dreamed of to do full justice\nto those who laboured, as Beccaria and his friends did, at the peril of\ntheir lives and liberties, for those very immunities which we now enjoy.\nWe cannot conceive that it should ever have been necessary to argue\nagainst torture, or that it should have been a bold thing to do so; still\nless can we conceive that it should ever have had its defenders, or that\nmen should have been contented with the sophism, that it was indeed an\nevil, but an evil which was necessary and inevitable.\n\nThe very success of Beccaria\u2019s work has so accustomed us to its result\nthat we are apt to regard it, as men regard a splendid cathedral in their\nnative town, with very little recognition of its claims to admiration.\nThe work is there, they see it, they live under its shadow; they are\neven ready to boast of it; but what to them is the toil and risk of\nits builders, or the care and thought of its architects? It may be said\nthat this indifference is the very consummation Beccaria would most have\ndesired, as it is the most signal proof of the success of his labour.\nSo signal, indeed, has been that success, that already the atrocities\nwhich men in those days accepted as among the unalterable conditions of\ntheir existence, or resigned themselves to as the necessary safeguards\nof society, have become so repulsive to the world\u2019s memory, that men\nhave agreed to hide them from their historical consciousness by seldom\nreading, writing, or speaking of their existence. And this is surely a\nfact to be remembered with hopefulness, when we hear an evil like war\nwith all its attendant atrocities, defended nowadays by precisely the\nsame arguments which little more than a hundred years ago were urged on\nbehalf of torture, but which have proved nevertheless insufficient to\nkeep it in existence.\n\nIt may be asked, How far was Beccaria the first to protest against\nthe cruelty and absurdity of torture? To this it must be replied that\nalthough actually he was not the first, he was the first to do so with\neffect. The difference between previous writers on the subject and\nBeccaria is the difference between a man whose ideas are in advance of\nthose of his age and a man who raises the ideas of his age to a level\nwith his own. So early as the sixteenth century Montaigne, in his\n\u2018Essay on Conscience,\u2019 had said plainly enough that the putting a man\nto the rack was rather a trial of patience than of truth; that pain\nwas as likely to extort a false confession as a true one; and that a\njudge, by having a man racked that he might not die innocent, caused him\nto die both innocent and racked. Also Grevius Clivensis wrote a work\nwhilst in prison in Amsterdam, in which he sought to prove that torture\nwas iniquitous, fallacious, and unchristian.[17] This was published\nin 1624; and nearly a century later a Jesuit, Spee, wrote against the\nuse of torture, as also against the cruel practices in force against\nwitches.[18] And in later days Montesquieu, twenty years before Beccaria,\nhad gone so far as to say that, since a civilised nation like England\nhad abandoned torture without evil consequences, it was therefore\nunnecessary; but he followed the subject to no definite conclusion.\n\nBeccaria himself was ready enough to refer all his thoughts to French\ninspiration, and to lay aside all claim to originality, with respect\nto which D\u2019Alembert once wrote to him: \u2018A man such as you has no need\nof a master, still less of a master like myself. You are like the\nTitus Curtius of Tacitus, _ex se natus_, nor have your offspring any\ngrandparent. A father like yourself is enough for them.\u2019\n\nBut the honour of having been the first country to lay aside the use of\ntorture undoubtedly belongs to England, just as the honour of having\nbeen the first in modern times to abolish capital punishment, except for\npolitical offences, belongs to Russia; and the practical example thus\nafforded by our laws probably did more for the general abolition of the\ncustom than any written treatise on the subject ever would have done\nalone. English and foreign jurists long delighted to honour the Common\nLaw for its non-recognition of torture. But though torture was contrary\nto the Common Law, and even to Magna Charta, it was not contrary to\nPrerogative; and until the Commonwealth it was used as matter of course\nin all grave accusations at the mere discretion of the monarch and Privy\nCouncil.[19] Therefore Beccaria pointed to England as a country which did\nnot use torture with more justice than Grotius had done, who, when the\nrack was still in use amongst us, quoted England as a proof that people\nmight safely live without torture.\n\nIt is of interest to trace some of the practical results which followed\nBeccaria\u2019s treatise during the thirty years that he lived after its\npublication; that is, from the year 1764 to 1794.\n\nThe country in which the first attempt was made to apply his principles\nto practice was Russia, where Catharine II. was anxious to establish a\nuniform penal code, based on the liberal ideas of the time, which then\nfound more favour in St. Petersburg than they did at Paris. For this\npurpose in 1767 she summoned to Moscow from all the provinces of Russia\nthose 652 deputies who formed the nearest approach in the history of that\ncountry to a Russian Parliament. In the instructions that were read to\nthis assembly, as the basis for the proposed codification of the laws,\nthe principles propounded were couched not only in the spirit but often\nin the very words of the author of the \u2018Crimes and Punishments.\u2019 The\nfollowing are examples:\u2014\n\n Laws should only be considered as a means of conducting mankind\n to the greatest happiness.\n\n It is incomparably better to prevent crimes than to punish them.\n\n The aim of punishment is not to torment sensitive beings.\n\n All punishment is unjust that is unnecessary to the maintenance\n of public safety.\n\n In methods of trial the use of torture is contrary to sound\n reason. Humanity cries out against the practice and insists on\n its abolition.\n\n Judgment must be nothing but the precise text of the law, and\n the office of the judge is only to pronounce whether the action\n is contrary or conformable to it.\n\n In the ordinary state of society the death of a citizen is\n neither useful nor necessary.\n\nThe following especially is from Beccaria:\u2014\n\n Would you prevent crimes, contrive that the laws favour less\n different orders of citizens than each citizen in particular.\n Let men fear the laws and nothing but the laws. Would you\n prevent crimes, provide that reason and knowledge be more and\n more diffused. To conclude: the surest but most difficult\n method of making men better is by perfecting education.[20]\n\nAlthough these instructions were not so much laws as suggestions of\nlaws, it is obvious what their effect must have been when published and\ndiffused throughout Russia. That they were translated into Latin, German,\nFrench, and Italian proves the interest that was taken in Europe by this\nfirst attempt to apply the maxims of philosophy to practical government.\n\nIn France Beccaria\u2019s book became widely popular, and many writers\nhelped to propagate his ideas, such as Servan, Brissot, Lacretelle, and\nPastoret. Lacretelle attributes the whole impulse of criminal law reform\nto Beccaria, while regretting that Montesquieu had not said enough to\nattract general attention to the subject. His book is said to have so\nchanged the spirit of the old French criminal tribunals, that, ten years\nbefore the Revolution, they bore no resemblance to their former selves.\nAll the younger magistrates gave their judgments more according to the\nprinciples of Beccaria than according to the text of the law.[21] The\nresult of the agitation appeared in the Royal Ordinances of 1780 and\n1788, directed to the diminution of torture, the only reforms which\npreceded the Revolution. It is said that the last time anyone was\ntortured in France was in the year 1788, the last year of the _ancien\nr\u00e9gime_. At the very beginning of the Revolution more than a hundred\ndifferent offences ceased to incur the penalty of death.\n\nThe most successful adoption of Beccaria\u2019s principles of punishment\noccurred in Tuscany, under the Grand Duke Leopold. When he ascended\nthe ducal throne, the Tuscans were the most abandoned people of all\nItaly. Robberies and murders were none the less frequent for all the\ngallows, wheels, and tortures which were employed to repress them. But\nLeopold in 1786 resolved to try Beccaria\u2019s plan, for which purpose\nhe published a code, proportioning punishments to crimes, abolishing\nmutilation and torture, reducing the number of acts of treason, lessening\nconfiscations, destroying the right of asylum, and above all abolishing\ncapital punishment even for murder. The result was, says a contemporary,\nthat Tuscany, from having been the land of the greatest crimes and\nvillanies, became \u2018the best ordered State of Europe.\u2019[22] During twenty\nyears only five murders were committed in Tuscany, whilst at Rome, where\ndeath continued to be inflicted with great pomp, as many as sixty were\ncommitted within the space of three months.[23]\n\nTorture was definitely and totally abolished in Portugal in 1776, in\nSweden in 1786,[24] and in Austria in 1789. In the latter country,\nindeed, it had been abolished by Maria Theresa sixteen years before\nin her German and Polish provinces; and the Penal Code of Joseph II.,\npublished in 1785, was an additional tribute to the cause of reform.\nSecret orders were even given to the tribunals to substitute other\npunishments for hanging, yet so that the general public should be unaware\nof the change. There was the greatest anxiety that it should not be\nthought that this change was out of any deference for Beccaria or his\nschool. \u2018In the abolition of capital punishment,\u2019 said Kaunitz, \u2018his\nMajesty pays no regard at all to the principles of modern philosophers,\nwho, in affecting a horror of bloodshed, assert that primitive justice\nhas no right to take from a man that life which Nature only can give him.\nOur sovereign has only consulted his own conviction, that the punishment\nhe wishes substituted for the capital penalty is more likely to be\nfelt by reason of its duration, and therefore better fitted to inspire\nmalefactors with terror.\u2019\n\nNor was it only in Europe that Beccaria\u2019s influence thus prevailed, for\nas soon as the American Colonies had shaken off their English connection\nthey began to reform their penal laws. When the Revolution began there\nwere in Pennsylvania nearly twenty crimes punishable by death, and within\neighteen years of its close the penal code was thoroughly transformed,\nit being ordained in 1794 that no crime should any longer be capital\nbut murder in the first degree. It is true that this was but a return\nto the principles adopted by Penn on the settlement of the colony, but\nPenn\u2019s penal code was annulled by Queen Anne, and the English Government\ninsisted on a strict adherence to the charter from Charles II., which\nenjoined the retention of the Statute and the Common Law of England.\nWhen, therefore, the new Constitution was formed in 1776, the arguments\nof Beccaria gave fresh life to the memories of Penn.[25]\n\nThus before his death Beccaria saw torture almost entirely abolished in\nEurope, and a general tendency spreading to follow the spirit of the\nchanges he advocated in other details of criminal law. Probably no other\ntheorist ever lived to witness so complete an adoption of his principles\nin practice, or so thorough a transformation of the system he attacked.\nIt is possible that he but gave body and voice to ideas of change already\nwidely prevalent in his time; but the merit of a man belongs none the\nless to himself, who changes the instability of public opinion into an\nactive and solid force, and who gives distinct expression to the longings\nvaguely felt by a multitude.\n\nBut if the interest of Beccaria\u2019s chapter on Torture is now merely\nhistorical, an interest that is actual still attaches to his advocacy\nof the total abolition of capital punishment, this being the cause with\nwhich his name is most generally associated, and for which it is likely\nto be longest remembered. Previous writers, like Montaigne, if they\ndeprecated the excess or severity of the death penalty, never thought of\nurging that it should be abolished altogether.\n\nThere is an apparent discrepancy in Beccaria\u2019s first condemning death as\ntoo severe a punishment and then recommending lifelong servitude as one\nof more deterrent power; but Beccaria would have said that the greater\ncertainty of the latter more than compensated for the greater severity\nof the other. As regards the relative power of the two punishments, it\nprobably varies in different individuals, some men having a greater\ndread of the one, and some of the other. The popular theory certainly\ngoes too far, when it assumes that all men have a greater dread of the\ngallows than of anything else. When George III. once granted a pardon\nto the female convicts in Newgate on condition of their transportation\nto New South Wales, though seventeen of them accepted the offer, there\nwere yet six who preferred death to a removal from their native country.\nIt is also stated by Howard that in Denmark the punishment in cases of\ninfanticide, namely, imprisonment for life, with labour and an annual\nwhipping on the place of the crime, was \u2018dreaded more than death,\u2019 which\nit superseded as a punishment.\n\nIt is, however, probable that the frequency of any crime bears little\nor no relation to the punishment affixed to it. Every criminal begins\na new career, in which he thinks less of the nature of his punishment\nthan of his chances of eluding it. Neither tradition nor example count\nwith him for much in his balance of the chances in his own favour. The\nlaw can never be so certain in its execution as it is uncertain in its\napplication, and it is the examples of impunity, not of punishment, to\nwhich men turn when they violate the law. So that whether the punishment\nfor murder be an excruciating death, as in ancient Rome, or a mere fine,\nas in ancient England, the motives for escape are always the same, the\nmeans to effect it are always the same, and the belief in his power\nto effect it is correspondingly powerful in every criminal guilty of\nhomicide.\n\nEven if we assume that death is absolutely the severest penalty devisable\nby the law, and that as a punishment for murder it is not too severe, it\nremains certain, that, relatively to the circumstances of a trial for\nmurder, to the reluctance of judges or juries to pass an irretrievable\nsentence, to their fear of error, to their conscientious regard for human\nlife, it is really a much less terrible danger for a malefactor to face\nthan a penalty which would justify fewer hopes of impunity.\n\nNor are such scruples to convict unreasonable, when we consider the\nnumber who on apparently conclusive evidence have been falsely and\nirrevocably condemned to death. Playgoers who have seen \u2018The Lyons Mail\u2019\nwill remember how barely Lesurques, the Parisian gentleman, escaped\npunishment for the guilt of Dubosc, the robber and murderer. But the\nmoral of the story is lost in the play, for Lesurques actually was\nexecuted for the crime of Dubosc, by reason of the strong resemblance\nhe bore to him, the latter only receiving the due reward for his crimes\nafter the innocent man had died as a common murderer on the scaffold.\nThen there are cases in which, as in the famous case of Calas, some one\nhaving committed suicide, some one else is executed as the murderer. That\ndead men tell no tales is as true of men hung as of men murdered, and the\ninnocence of an executed man may be proved long afterwards or not at all.\n\nWhere there is no capital punishment, as in Michigan, a man\u2019s innocence\nmay be discovered subsequently to conviction, and justice done to him\nfor the error of the law. Such a case actually happened not long ago in\nMichigan, where a prisoner\u2019s innocence was clearly proved after ten\nyears\u2019 imprisonment. Where capital punishment exists, there is no such\nhope; nor is there any remedy if, as in the case of Lewis, who was hung\nin 1831, another man thirty-three years afterwards confesses himself\nthe murderer. It is impossible to preclude all chances of such errors\nof justice. Illustrative of this is the story of the church organist\nnear Kieff, who murdered a farmer with a pistol he stole from a priest.\nAfter his crime he placed the pistol in the sacristy, and then, when he\nhad prevented the priest from giving evidence against him by the act of\nconfession, went and denounced the priest as the culprit. The priest, in\nspite of his protestations of innocence, was sentenced to hard labour for\nlife; and when, twenty years afterwards, the organist confessed his guilt\non his deathbed, and the priest\u2019s liberation was applied for, it was\nfound that he had died only a few months before.[26]\n\nThat the scruple to convict diminishes the certainty of punishment, and\ntherefore raises hopes of impunity, is illustrated by the case of two\nAmerican brothers who, desirous to perpetrate a murder, waited till\ntheir victim had left their State, in which capital punishment had been\nabolished, and had betaken himself to a State which still retained it,\nbefore they ventured to execute their criminal intention. That such\nreluctance to convict is often most injurious to the public is proved by\nthe case of a woman at Chelmsford who some years ago was acquitted, in\nspite of strong evidence, on a charge of poisoning, and who, before her\nguilt was finally proved, lived to poison several other persons who would\notherwise have escaped her arts.[27]\n\nSuch considerations as these will, perhaps, lead some day to the\nabolition of capital punishment. The final test of all punishment is\nits efficiency, not its humanity. There is often more inhumanity in a\nlong sentence of penal servitude than in a capital sentence, for the\nmajority of murderers deserve as little mercy as they get. The many\noffences which have ceased to be capital in English law yielded less to\na sense of the inhumanity of the punishment as related to the crime than\nto the experience that such a punishment led to almost total impunity.\nThe bankers, for instance, who petitioned Parliament to abolish capital\npunishment for forgery, did so, as they said, because they found by\nexperience that the infliction of death, or the possibility of its\ninfliction, prevented the prosecution, the conviction, and the punishment\nof the criminal; therefore they begged for \u2018that protection for their\nproperty which they would derive from a more lenient law.\u2019\n\nFor the same reason it is of little avail to call in question, as\nBeccaria does, the right of society to inflict death as a punishment.\nThere may be a distinction between the right of society and its might,\nbut it is one of little comfort to the man who incurs its resentment. A\nman in a dungeon does better to amuse himself with spiders and cobwebs\nthan with reflections on the encroachment of the law upon his liberty,\nor with theories about the rights of government. Whenever society has\nceased to exercise any of its powers against individuals, it has not been\nfrom the acceptance of any new doctrine as to its rights, but from more\nenlightened views as to its real interests, and a cultivated dislike of\ncruelty and oppression.\n\nWhen Beccaria wrote against capital punishment, one great argument\nagainst its abolition was its practical universality. It had been\nabolished in ancient Egypt by king Sabaco,[28] in the best period of the\nRoman Republics by the Porcian law, and in the time of the Roman Empire\nby Calo-Johannes.[29] But these cases were too remote from modern times\nto lend much weight to the general argument. At that time Russia alone of\nall the countries in the world had, from the accession of the Empress\nElizabeth, afforded a practical example of the fact, that the general\nsecurity of life is not diminished by the withdrawal of the protection of\ncapital punishment. But since that time this truth has become less and\nless a theory or speculation, and it now rests on the positive experience\nof no inconsiderable portion of the world. In Tuscany, Holland, Portugal,\nRussia, Roumania, Saxony, Prussia, Belgium, and in ten of the United\nStates of America, the death penalty has either been abolished or\ndiscontinued; and can it be thought that the people of those countries\nare so indifferent to the safety of their lives as to be content with a\nless efficient legal protection than is vouchsafed in countries where the\nprotection is death?\n\nThe opponents of capital punishment may fairly, therefore, draw an\nargument in their favour from the fact that so many parts of the world\nhave found it not incompatible with the general security of life to erase\nthe death penalty from their list of deterrent agencies. It is better\nto rely on so plain a fact than on statistics which, like two-edged\nweapons, often cut both ways. The frequency of executions in one country\nand their total absence in another may severally coexist with great\nnumerical equality in the number of murders committed in each. It is\nalways better, therefore, to look for some other cause for a given number\nof murders than the kind of punishment directed to their repression.\nThey may depend on a thousand other things, which it is difficult to\nascertain or eliminate. Thus both in Bavaria, where capital punishment\nhas been retained, and in Switzerland, where it had been abolished in\n1874, murders have increased greatly in recent years; and this fact has,\nwith great probability, been attributed to the influence of bad habits\ncontracted during the Franco-German war.\n\nCapital punishment being less general in the world now than torture was\nwhen Beccaria wrote, it seems to be a fair logical inference that it\nis already far advanced towards its total disappearance. For the same\nargument which Voltaire applied in the case of torture cannot fail sooner\nor later to be applied to capital punishment. \u2018If,\u2019 he says, \u2018there were\nbut one nation in the world which had abolished the use of torture; and\nif in that nation crimes were no more frequent than in others, \u2026 its\nexample would be surely sufficient for the rest of the world. England\nalone might instruct all other nations in this particular; but England is\nnot the only nation. Torture has been abolished in other countries, and\nwith success; the question, therefore, is decided.\u2019 If in this argument\nwe read capital punishment instead of torture, murders instead of crimes,\nand Portugal instead of England, we shall best appreciate that which is\nafter all the strongest argument against capital punishment, namely,\nthat it has been proved unnecessary for its professed object in so many\ncountries that it might safely be relinquished in all.\n\n\n\n\nCHAPTER III.\n\nTHE INFLUENCE OF BECCARIA IN ENGLAND.\n\n\nWhatever improvement our penal laws have undergone in the last hundred\nyears is due primarily to Beccaria, and to an extent that has not always\nbeen recognised. Lord Mansfield is said never to have mentioned his name\nwithout a sign of respect. Romilly referred to him in the very first\nspeech he delivered in the House of Commons on the subject of law reform.\nAnd there is no English writer of that day who, in treating of the\ncriminal law, does not refer to Beccaria.\n\nEven the idea of public utility as the final test and standard of\nmorality is derived from Beccaria, and the famous expression, \u2018the\ngreatest happiness of the greatest number,\u2019 occurs, in capital letters,\nin the very first page of the \u2018Delitti e delle Pene.\u2019[30] Bentham himself\nfully acknowledged this. \u2018Priestley was the first,\u2019 he says, \u2018unless it\nwas Beccaria, who taught my lips to pronounce this sacred truth: that\nthe greatest happiness of the greatest number is the foundation of\nmorals and happiness.\u2019 And with reference to his idea of the measurable\nvalue of different pains and pleasures, he says: \u2018It was from Beccaria\u2019s\nlittle treatise on Crimes and Punishments that I drew, as I well\nremember, the first hint of this principle, by which the precision\nand clearness and incontestableness of mathematical calculations are\nintroduced for the first time into the field of morals.\u2019\n\nEnglish philosophy and legislation, therefore, owe enough to Beccaria\nfor his treatise never to be forgotten among us. Standing, as it does,\nin reference to law as Bacon\u2019s \u2018Novum Organon\u2019 to science, or Descartes\u2019\n\u2018Principia\u2019 to philosophy, and representing a return to first principles\nand rejection of mere precedent in the matter of penal laws, it will\nnever fail to gratify those who, with little admiration for law in\nthe concrete, can yet find pleasure in studying it in the abstract.\nMost men will turn readily from a system built up, as our own is, of\nunintelligible distinctions, and based on authority rather than on\nexperience, to a system where no distinctions exist save those which are\nderived from the nature of things and are founded on the real differences\nthat distinguish the moral actions of mankind.\n\nThe first trace of Beccaria\u2019s influence in England appeared in the first\nedition of Blackstone\u2019s Commentaries, of which the book on the Criminal\nLaws was published the very next year after the appearance of the\nItalian treatise. That Blackstone was well acquainted with it is proved\nby his frequent reference to it in treating of crimes. From Beccaria he\nargues that the certainty of punishments is more effectual than their\nseverity, and finds it absurd to apply the same punishment to crimes of\ndifferent malignity. Blackstone was also the first professional lawyer\nto find fault with the frequency of capital punishment in England, and\nto point out as \u2018a melancholy truth\u2019 the presence of 160 actions in the\nstatute book which were felonies without benefit of clergy.\n\nBut there was one great fallacy, pervading our whole criminal law, which\nBlackstone left undetected and untouched. This was, that the severity of\npunishment must be augmented in proportion to the increase of temptation,\nand that the measure of the guilt of a crime lay in the facility with\nwhich it might be committed. \u2018Among crimes of an equal malignity,\u2019 says\nBlackstone, \u2018those [deserve most punishment, as most injurious] which a\nman has the most frequent and easy opportunities of committing, which\ncannot so easily be guarded against as others, and which, therefore, the\noffender has the strongest inducement to commit.\u2019 And on this principle\nhe finds it reasonable, that, while the theft of a pocket-handkerchief\nshould be a capital crime, the theft of a load of hay should only involve\ntransportation.\n\nThere was not an anomaly in our old criminal practice which was not\nbased on this theory\u2014a theory which had, indeed, its precedent in the\nold Hebrew law that punished more severely a theft from a field than a\ntheft from a house; and the first writer who protested against it was\nEden, afterwards Lord Auckland, who in 1771 published his \u2018Principles\nof Penal Law,\u2019 one of the best books ever written on the subject. The\ninfluence of Beccaria is apparent in Eden\u2019s work, not only by his\ndirect reference to it, but by his spirit of declared opposition to the\nactual practice of the law. Two instances of its tendency will suffice.\n\u2018Imprisonment, inflicted by law as a punishment, is not according to the\nprinciples of wise legislation. It sinks useful subjects into burthens\non the community, and has always a bad effect on their morals; nor can\nit communicate the benefit of example, being in its nature secluded from\nthe eye of the people.\u2019 And again: \u2018Whatever exceeds simple death is mere\ncruelty. Every step beyond is a trace of ancient barbarity, tending only\nto distract the attention of the spectators and to lessen the solemnity\nof the example. There is no such thing as vindictive justice; the idea is\nshocking.\u2019\n\nMen of letters as a rule did not speak with this boldness, but in\nconscious opposition to professional and popular feeling expressed their\ndoubts with a hesitation that was almost apologetic. So, for example,\nGoldsmith could not \u2018avoid even questioning the validity of that right\nwhich social combinations have assumed of capitally punishing offences of\na slight nature.\u2019[31] Strange, that in England such an argument should\never have seemed a daring novelty, a thing to be said tentatively and\nwith reserve!\n\nLord Kames attacked our criminal law in a still more indirect way, by\ntracing punishment historically to the revenge of individuals for their\nprivate injuries, and by extolling the excellence of the criminal law of\nthe ancient Egyptians. They, he said, avoided capital punishments as much\nas possible, preferring others which equally prevented the recommission\nof crimes. Such punishments effected their end \u2018with less harshness\nand severity than is found in the laws of any other nation, ancient or\nmodern.\u2019[32]\n\nNothing could be more interesting than Lord Kames\u2019 account of the\ngrowth of criminal law, from the rude revenges of savages to the legal\npunishments of civilised States; but it was probably intended by its\nauthor less as an historical treatise than as a veiled attack upon the\npenal system of his country. It is, therefore, a good illustration of the\ntimidity of the Theoretical school against the overwhelming forces of\nthe Practical school of law, which, of course, included the great body\nof the legal profession; and it is the first sign of an attempt to apply\nthe experience of other countries and times to the improvement of our own\njurisprudence.\n\nIt certainly should moderate our reverence for ancestral wisdom to find\neven a man like Fielding, the novelist, speaking, in his Charge to the\nGrand Jury of Middlesex, of the pillory and the loss of a man\u2019s ears as\n\u2018an extremely mild\u2019 punishment for a bad case of libel, or declaring our\npunishments of that time to be \u2018the mildest and most void of terror of\nany other in the known world.\u2019 Yet Fielding recognised several of the\ntrue principles of punishment. He attributed the increase of crime to the\ngreat abuse of pardons, which, he said, had brought many more men to the\ngallows than they had saved from it. He also advocated the diminution of\nthe number of executions, their greater privacy and solemnity, whilst he\nrecommended their following as closely as possible on conviction, that\npity for the criminal might be lost in detestation for his crime.[33]\n\nBut that the humanity of the speculative school of law was not without\nsome influence on public opinion, as well as to a certain extent a\nreflection of it, is proved by a few abortive attempts in Parliament\nto mitigate the severity of our penal code in the latter half of the\nlast century. Even so early as 1752 the Commons agreed to commute the\npunishment of felony in certain cases to hard labour in the docks; but\nthe Lords refused their consent, as from that time onward for more than\neighty years they regularly continued to refuse it to all mitigation\nof the laws affecting crime. It must ever remain a matter of regret,\nthat the _r\u00f4le_ of the House of Lords in the matter of criminal law\nreform should have continued from 1752 to 1832 to be one of systematic\nand obstinate opposition to change, and an opposition which had no\njustification in the general level of national enlightenment.\n\nThe chief honour of the earliest attempt at law reform belongs to Sir\nWilliam Meredith, who in 1770 moved for a committee of inquiry into the\nstate of the criminal laws. This committee proposed in its report of\nthe following year the repeal of a few Acts which made certain offences\ncapital; and accordingly the Commons in 1772 agreed, that it should no\nlonger be punishable as high treason to make an attempt on the life of\na Privy Councillor, that desertion of officers or soldiers should no\nlonger be capital, nor the belonging to people who called themselves\nEgyptians. Some other proposals were negatived, such as a repeal of the\nhard law of James I. against infanticide; but the House of Lords refused\ntheir assent even to the slight changes passed by the Commons. \u2018It was an\ninnovation, they said, and subversion of the law.\u2019[34] It is no reproach\nto Meredith, Burke, and Fox that they ceased to waste their strength\nagainst Conservatism such as this. All hope of reform was out of the\nquestion; and the most dreadful atrocities were suffered or defended. In\n1777 a girl of 14 lay in Newgate under sentence to be burnt alive for\nfalse coinage, because some whitewashed farthings, that were to pass for\nsixpences, were found on her person; and a reprieve only came just as\nthe cart was ready to take her to the stake. Not till 1790 was the law\nabolished by which women were liable to be burnt publicly for high or\npetit treason.[35]\n\nBut whatever tendency might have been arising in theory or in practice\nabout this time to mitigate the severity of our laws was destined to\nreceive a dead check from the publication in 1784 and 1785 respectively\nof two books which deserve historical recollection. The first was\nMadan\u2019s \u2018Thoughts on Executive Justice,\u2019 in which the author, adopting\nBeccaria\u2019s principle of the certainty of punishment as the best check on\ncrime, advocated an unflinching carrying out of the laws as they stood.\n\u2018It was,\u2019 says Romilly, \u2018a strong and vehement censure upon the judges\nand the ministers for their mode of administering the law, and for the\nfrequency of the pardons which they granted. It was very much read, and\ncertainly was followed by the sacrifice of many lives.\u2019\n\nThe year before its publication 51 malefactors were executed in London,\nthe year after 97, whilst not long afterwards was seen the rare spectacle\nof nearly 20 criminals hung at a time. Romilly was so much shocked at\nwhat he considered the folly and inhumanity of Madan\u2019s book that he wrote\na short tract of observations upon it, of which he sent a copy to each\nof the judges. But it is characteristic of the feeling of that time that\nonly a hundred copies of his tract were sold. It was, however, from that\ntime that Romilly began to make the criminal law his special study, so\nthat to Madan indirectly our country owes the efforts of Romilly.\n\nThe other book was from a man whom above all others our forefathers\ndelighted to honour. This was Archdeacon Paley, who in 1785 published his\n\u2018Moral and Political Philosophy,\u2019 and dedicated it to the then Bishop of\nCarlisle. Nor is this fact of the dedication immaterial, for the said\nBishop was the father of the future Lord Chief Justice Ellenborough, who\nenjoys the melancholy fame of having been the inveterate and successful\nopponent of nearly every movement made in his time, in favour of the\nmitigation of our penal laws. The chapter on Crimes and Punishments\nin Paley and the speeches of Lord Ellenborough on the subject in the\nHouse of Lords are, in point of fact, the same thing; so that Paley\u2019s\nchapter is of distinct historical importance, as the chief cause of the\nobstruction of reform, and as the best expression of the philosophy of\nhis day. If other countries adopted Beccaria\u2019s principles more quickly\nthan our own, it was simply that those principles found no opponents\nanywhere equal to Archdeacon Paley and his pupil, Lord Ellenborough.\n\nPaley, of course, defended the thing he found established; nor,\nconsidering the system he had to defend, did he state the case for it\nwithout ingenuity. He had, indeed, nothing to add to what Blackstone\nhad said regarding punishment, namely, that it was inflicted, not in\nproportion to the real guilt of an offence, but in proportion to its\nfacility of commission and difficulty of detection. To steal from a shop\nwas not more criminal than to steal from a house, but, as it was more\ndifficult to detect, it was more severely punished. Sheep, horses, and\ncloth on bleaching-grounds were more exposed to thieves than other kinds\nof property; therefore their theft required a stronger deterrent penalty.\n\nThere was only one offence which Paley thought the English law punished\ntoo severely, and that was the offence of privately stealing from the\nperson. In all other cases he defended the application of the capital\npenalty. It was, he thought, the peculiar merit of the English law that\nit swept into the net every crime which under any possible circumstance\nmight merit death, whilst it only singled out a few cases in each class\nof crime for actual punishment; so that whilst few really suffered death,\nthe dread and danger of it hung over the crimes of many. The law was not\ncruel, for it was never meant to be indiscriminately executed, but left a\nlarge margin for the exercise of mercy.\n\nPaley agreed with Beccaria that the certainty of punishment was of\nmore consequence than its severity. For this reason he recommended\n\u2018undeviating impartiality in carrying the laws into execution;\u2019 he blamed\nthe \u2018weak timidity\u2019 of juries, leading them to be over-scrupulous about\nthe certainty of their evidence, and protested against the maxim that\nit was better for ten guilty men to escape than for one innocent man\nto perish. A man who fell by a mistaken sentence might, he argued, be\nconsidered as falling for his country, because he was the victim of a\nsystem of laws which maintained the safety of the community.\n\nSuch was the reasoning which for nearly half a century governed the\ncourse of English history, and which for all that time it was a heresy to\ndispute.\n\nBarbarous spectacles were, Paley thought, justly found fault with, as\ntending to demoralise public feeling. \u2018But,\u2019 he continued, \u2018if a mode\nof execution could be devised which would augment the horror of the\npunishment, without offending or impairing the public sensibility by\ncruel or unseemly exhibitions of death, it might add something to the\nefficacy of example; and by being reserved for a few atrocious crimes\nmight also enlarge the scale of punishment, an addition to which seems\nwanting, for as the matter remains at present you hang a malefactor for\na simple robbery, and can do no more to the villain who has poisoned his\nfather. Something of the sort we have been describing was the proposal,\nnot long since suggested, of casting murderers into a den of wild beasts,\nwhere they would perish in a manner dreadful to the imagination, yet\nconcealed from the view.\u2019 It is interesting after this to learn, that\nPaley thought torture properly exploded from \u2018the mild and cautious\nsystem of penal jurisprudence established in this country,\u2019 and that (to\ndo him justice) he urged private persons to be tender in prosecuting, out\nof regard for the difficulty of prisoners to obtain an honest means of\nlivelihood after their discharge.\n\nHoward\u2019s book on the Lazarettos of Europe appeared four years after\nPaley\u2019s work. Although it did not deal directly with crimes, it\nindirectly treated of their connection with punishment. Howard was able\nto show that whilst in Middlesex alone 467 persons had been executed in\nnine years, only six had been executed in Amsterdam; that for a hundred\nyears the average number of executions had been one a year at Utrecht\nand that for twenty-four years there had not even been one there. The\ninference therefore was that the diminution of punishment had a direct\neffect in diminishing crime. Howard also advocated the restriction of\ncapital punishment to cases of murder, arson, and burglary; highwaymen,\nfootpads, and habitual thieves should, he thought, end their days in a\npenitentiary rather than on the gallows. Even this was a bold proposal,\nin a state of society yet in bondage to Paley.\n\nSomething, however, occurred more fatal to the reform of our penal laws\nthan even the philosophy of Paley, and that was the French Revolution.\nBefore 1790 there had been 115 capital offences in France; so that to\nalter the criminal law in England was to follow a precedent of unpleasant\nauspices. Reform not unnaturally savoured of revolution, and especially\na reform of the penal laws. In 1808 Romilly said he would advise anyone,\nwho desired to realise the mischievous effects of the French Revolution\nin England to attempt some legislative reform on humane and liberal\nprinciples. With bitterness he tells the story of a young nobleman, who,\naddressing him insolently at the bar of the House of Commons, informed\nhim that he for his part was for hanging all criminals. Romilly observed\nthat he supposed he meant punishments should be certain and the laws\nexecuted, whatever they were. \u2018No, no,\u2019 was the reply, \u2018it isn\u2019t that.\nThere is no good done by mercy. They only get worse: I would hang them\nall up at once.\u2019 And this represented the prevalent opinion. Windham,\nin a speech against the Shoplifting Bill, inquired, \u2018Had not the French\nRevolution begun with the abolition of capital punishment in every case?\u2026\nWas such a system as this was to be set up without consideration against\nthat of Dr. Paley!\u2019[36]\n\nRomilly\u2019s first idea with respect to the reform of the criminal law was\na sufficiently humble one. It was nothing more than to raise the amount\nof the value of the property, the theft of which should expose a man to\ndeath. Twelvepence, as fixed by the statute of Elizabeth, originally\nsignified a much greater theft than it had come to signify after a lapse\nof two centuries. Romilly had at first no idea of removing the death\npenalty for theft; his only hope was to get it affixed to a graver theft\nthan the larceny of a shilling. Yet even so he could not bring himself to\nconsult with the judges on the subject of his intended bill, for \u2018he had\nnot the least hope they would approve of the measure.\u2019\n\nIt was by the advice of Scarlett, Lord Abinger, that he ventured to aim\nat the repeal of all statutes punishing mere theft with death; but,\ndeeming it hopeless to urge their abolition all at once, he resolved\nto begin with that famous statute of Elizabeth which made it a capital\ncrime to steal a handkerchief or anything else from the person of another\nwhich was of the value of a shilling. His bill to effect this passed\nboth Houses the same year it was introduced (1808), in spite of the\nstrong opposition of the great legal dignitaries in either House. The\nstatute was based, said Judge Burton, on the experience of two and a\nhalf centuries. The alternative punishment of transportation for seven\nyears, said the Attorney-General, would be too short; it should be for\nmore years than seven, if not for life. If any change of punishment were\nnecessary, said Lord Ellenborough, it should be transportation for life.\n\nSuch was legal opinion generally as expressed by its ablest\nrepresentatives with respect to the due punishment for pocket-picking not\na hundred years ago. It is easy now to smile at such errors, and, at the\nbarren waste of wisdom spent in their defence, but what weight after that\ncan be attached, on subjects of the general policy of the law, to the\nopinion of its chief professors? Can it be too much regretted that Lord\nChief Justice Ellenborough should have sacrificed to his own authority,\nwhilst alive, the authority of all judges ever destined to succeed him?\n\nThe success which attended Romilly\u2019s Privately Stealing Bill and the\nfailure which attended almost all his other efforts was probably due\nto the fact that larceny from the person without violence was, as has\nbeen said, the one single kind of offence which had Paley\u2019s sanction\nfor ceasing to be capital. But the very success of his first bill was\nthe chief cause of the failure of his subsequent ones. For, capital\npunishment having been removed for mere pilfering, prosecutions became\nmore frequent, and the opponents of reform were thus able to declare that\nan increase of theft had been the direct consequence of the abolition\nof the capital penalty. It was in vain to point out, that the apparent\nincrease of theft was due to the greater readiness of individuals to\nprosecute and of juries to convict, when a verdict of guilt no longer\ninvolved death as the consequence.\n\nRomilly also injured his cause by a pamphlet on the criminal law, in\nwhich he criticised severely the doctrines of Paley. So strongly was\nthis resented, that in 1810 his bill to abolish capital punishment for\nstealing forty shillings from a dwelling-house did not even pass the\nCommons, being generally opposed, as it was by Windham, because the\nmaintenance of Paley\u2019s reputation was regarded as a great object of\nnational concern.[37] That is to say, men voted not so much against the\nbill as against the author of a heresy against Paley.\n\nIn those days to steal five shillings\u2019 worth of goods from a shop\nwas a capital offence, and Paley had explained the philosophy of the\npunishment. It would be tedious to follow the course of Romilly\u2019s bill\nagainst this law, called the Shoplifting Act, through the details of\nits history. Suffice it to say that it passed the Commons in 1810,\n1811, 1813, 1816, but was regularly thrown out by the Lords, and only\ndefinitely became law many years later. But though the debates on the\nsubject no longer possess the vivid interest that once belonged to them,\nand are best left to the oblivion that enshrouds them, it is instructive\nto take just one sample of the eloquence and arguments, that once\nled Lords and Bishops captive and expressed the highest legal wisdom\nobtainable in England.\n\nLord Ellenborough, on the last day but one of May 1810, appealed to\ntheir lordships to pause, before they passed the Shoplifting Bill and\ngave their assent to the repeal of a law which had so long been held\nnecessary for the security of the public. No one, he insisted, was more\ndisposed than himself to the exercise of clemency, but there was not the\nslightest ground for the insinuations of cruelty that had been cast on\nthe administration of the law. If shoplifting did not require the penalty\nof death, the same rule would have to apply to horse- and sheep-stealing;\nand, in spite of all that was said in favour of this speculative\nhumanity, they must all agree, that prevention of crime should be the\nchief object of the law, and that terror alone could prevent the crime\nin question. Those who were thus speculating in modern legislation\nurged that punishment should be certain and proportionate; but he\ncould satisfy the House that any attempt to apply a punishment in exact\nconformity to the offence would be perfectly ludicrous. He had consulted\nwith the other judges, and they were _unanimously of opinion_ that it\nwould not be expedient to remit this part of the severity of the criminal\nlaw.[38] He therefore entreated them to pause.\n\nNeed it be said that the House of Lords paused, as they were entreated to\ndo, and that they paused and paused again, in a manner more suggestive\nof the full stop than the comma, generally out of deference to the\nsame authority? Romilly was indignant that so many prelates voted\nagainst his bills; but could they have done otherwise, when the best\nlegal authorities in England urged that it would be fatal to vote for\nthem?\u2014when they were gravely told that if a certain bill passed, they\nwould not know whether they stood on their heads or on their feet?\n\nLord Ellenborough was so hard upon \u2018speculative humanity,\u2019 as opposed\nto real practical common sense, that the speculative school are never\nlikely to forget him. But they owe too much to him not to forgive him;\nsince he is the standing proof, that in matters of the general policy of\nthe law professional opinion is a less trustworthy guide than popular\nsentiment, and that in questions of law reform it is best to neglect the\nfossil-wisdom of forgotten judges, and to seek the opinion of Jones round\nthe corner as readily as that of Jones upon the Bench.\n\nA strong feeling against the pillory was aroused by the sentence passed\nagainst Lord Cochrane in 1814, by which, for supposed complicity in\na plot to raise the price of the Funds, he was condemned to a year\u2019s\nimprisonment, to a fine of 1000_l._, and to stand in the pillory. A bill\nfor the abolition of the pillory accordingly passed the Commons the\nvery next year, but Lord Ellenborough succeeded again in bringing the\nUpper House to a pause: the pillory forsooth was as old as 1269; it was\nspoken of by the old historians; it was not confined to this country,\nfor Du Cange spoke of it on the Continent. For these reasons the pillory\nremained a legal punishment down to the first year of the present reign.\n\nYet Lord Ellenborough was one of the best judges known to English\nhistory; he was, according to his biographer, a man \u2018of gigantic\nintellect,\u2019 and one of the best classical scholars of his day; and if he\nerred, it was with all honesty and goodness of purpose. The same must be\nsaid of Lord Chief Justice Tenterden\u2019s opposition to any change in the\nlaw of forgery. His great merits too as a judge are matter of history,\nyet when the Commons had passed the bill for the abolition of capital\npunishment for forgery, Lord Tenterden assured the House of Lords\nthat they could not \u2018without great danger take away the punishment of\ndeath.\u2019 \u2018When it was recollected how many thousand pounds, and even tens\nof thousands, might be abstracted from a man by a deep-laid scheme of\nforgery, he thought that this crime ought to be visited with the utmost\nextent of punishment which the law then wisely allowed.\u2019 The House of\nLords again paused in submission to judicial authority.\n\nSir James Mackintosh, who succeeded Romilly as law reformer, in 1820\nintroduced with success six penal reform bills into the House of Commons;\nbut the Lords assented to none of them that were of any practical\nimportance to the country. They agreed, indeed, that it should no longer\nbe a capital offence for an Egyptian to reside one year in the country,\nor for a man to be found disguised in the Mint, or to injure Westminster\nBridge; but they did not agree to remove the capital penalty for such\noffences as wounding cattle, destroying trees, breaking down the banks\nof rivers, or sending threatening letters. It was feared that if the\npunishment were mitigated, the whole of Lincolnshire might be submerged,\nwhole forests cut down, and whole herds destroyed. As to the Shoplifting\nBill, they would not let death be abolished for stealing in shops\naltogether, but only where the value of the theft was under 10_l._ That\nseemed the limit of safe concession.\n\nSir Robert Peel, who was the first Ministerial law reformer, succeeded\nin getting the death penalty repealed for several crimes which were\npractically obsolete, but forty kinds of forgery alone still remained\ncapital offences.\n\nSo great, however, did the changes appear to be, that Sir James\nMackintosh declared, towards the close of his life, that it was as if he\nhad lived in two different countries, such was the contrast between the\npast and the present. Yet Sir James died in the very year that the first\nReform Bill passed, and it was not till after that event that any really\ngreat progress was made towards ameliorating the penal laws.\n\nIt is well known that Lord Tenterden refused ever to sit again in the\nHouse of Lords if the Reform Bill became law, and that he predicted that\nthat measure would amount to the political extinction of the Upper House.\nAs regards the history of our criminal law Lord Tenterden was right, for\nthe period of long pauses had passed away, and rapid changes were made\nwith but short intervals of breathing-time. From the year the Reform\nBill passed the school of Beccaria and Bentham achieved rapid successes\nin England. In 1832 it ceased to be capital to steal a horse or a sheep,\nin 1833 to break into a house, in 1834 to return prematurely from\ntransportation, in 1835 to commit sacrilege or to steal a letter. But\neven till 1837 there were still 37 capital offences on the statute-book;\nand now there are only two, murder and treason. Hanging in chains was\nabolished in 1834; the pillory was wholly abolished in 1837; and the same\nyear Ewart, after many years\u2019 struggle, obtained for prisoners on trial\nfor felony the right (still merely a nominal one)[39] of being defended\nby counsel.\n\nThus it has come about that, after steady opposition and fierce conflict,\nEnglish law finds itself at the very point which Johnson and Goldsmith\nhad attained a hundred years before; so true is it, as Beccaria has said,\nthat the enlightenment of a nation is always a century in advance of its\npractice. The victory has conclusively been with the ultra-philosophers,\nas they were once called, with the speculative humanitarians, for whom\ngood Lord Ellenborough had so honest a contempt. Paley\u2019s philosophy has\nlong since been forgotten, and if it affords any lesson at all, it lies\nchiefly in a comparison between his gloomy predictions and the actual\nresults of the changes he deprecated. The practical and professional\nschool of law has yielded on all the most important points to the\ndissolving influence of Beccaria\u2019s treatise; and the growing demand for\nincreasing the security of human life by the institution of a penalty,\nmore effective because more certain, than that at present in force,\npoints to the still further triumph of Beccaria\u2019s principles, likely\nbefore long to mark the progress of his influence in England.\n\n\n\n\nCHAPTER IV.\n\nTHE PROBLEMS OF PENOLOGY.\n\n\nIf we would bring to the study of Beccaria\u2019s treatise the same\ndisposition of mind with which he wrote it, we must enter upon the\nsubject with the freest possible spirit of inquiry, and with a spirit of\ndoubtfulness, undeterred in its research by authority however venerable,\nby custom however extended, or by time however long. It has been from too\ngreat reverence for the wisdom of antiquity that men in all ages have\nconsigned their lives and properties to the limited learning and slight\nexperience of generations which only lived for themselves and had no\nthought of binding posterity in the rules they thought suitable to their\nown times. Beccaria sounded the first note of that appeal from custom\nto reason in the dominion of law which has been, perhaps, the brightest\nfeature in the history of modern times, and is still transforming the\ninstitutions of all countries.\n\nThe object, therefore, of this chapter is chiefly negative, being none\nother than to raise such mistrust of mere custom, and so strong a sense\nof doubt, by the contradictions apparent in existing laws and theories,\nthat the difficulties of their solution may tempt to some investigation\nof the principles on which they rest.\n\nThat Penology is still only in its experimental stage as a science,\nin spite of the progress it has made in recent times, is clear from\nthe changes that are so constantly being made in every department of\nour penal system. We no longer mutilate nor kill our criminals, as\nour ancestors did in the plenitude of their wisdom; we have ceased to\ntransport them, and our only study now is to teach them useful trades\nand laborious industry. Yet whether we shall better bring them to love\nlabour by compulsory idleness or by compulsory work, whether short\nimprisonment or long is the most effective discipline, whether seclusion\nor association is least likely to demoralise them, these and similar\nquestions have their answers in a quicksand of uncertainty. This only\nmay experience be said to have yet definitely proved, that very little\nrelation exists in any country between the given quantity of crime and\nthe quantity or severity of punishment directed to its prevention. It has\ntaken thousands of years to establish this truth, and even yet it is but\npartially recognised over the world.\n\nIt would appear at first sight that there could be little to say about\ncrimes and punishments, so obvious and self-evident seem the relations\nthat exist between them. Many people still believe in an innate sense\nof justice in mankind, sufficient always to prevent wide aberrations\nfrom equity. Is it, they might ask, conceivable that men should ever\nlose sight of the distinction between the punishment of guilt and the\npunishment of innocence?\u2014that they should ever punish one equally with\nthe other? Yet there is no country in the world which in its past or\npresent history has not involved the relations of a criminal in the\npunishment inflicted on him; and in savage countries generally it is\nstill common to satisfy justice with vengeance on some blood-relation of\na malefactor who escapes from the punishment due to his crime.\n\nIt would also seem to demand no great insight to perceive that a\nvoluntary intention must be a universal attribute of a criminal action.\nNo one would think of punishing a man who in his sleep killed another,\nalthough, if the injury to society be the measure of punishment, his\ncrime is equivalent to intentional homicide. Yet at Athens an involuntary\nmurderer was banished until he could, give satisfaction to the relatives\nof the deceased; and in China, though the penal code generally separates\nintentional from accidental crimes, anyone who kills a near relation\nby accident or commits certain kinds of arson by accident undergoes\ndifferent degrees of banishment and a fixed number of bamboo strokes.[40]\n\nEven inanimate objects or animals it has been thought through many ages\nreasonable to punish. In Athens an axe or stone that killed anyone\nby accident was cast beyond the border; and the English law was only\nrepealed in the present reign which made a cartwheel, a tree, or a beast,\nthat killed a man, forfeit to the State for the benefit of the poor. The\nJewish law condemned an ox that gored anyone to death to be stoned, just\nas it condemned the human murderer. And in the middle ages pigs, horses,\nor oxen were not only tried judicially like men, with counsel on either\nside and witnesses, but they were hung on gallows like men, for the\nbetter deterrence of their kind in future.[41]\n\nThese customs had doubtless their defenders, and left the world not\nwithout a struggle. It must have cost some one, whosoever first\nquestioned the wisdom of hanging animals or murdering a criminal\u2019s\nrelations, as much ridicule as it cost Beccaria to question the efficacy\nof torture or the right of capital punishment. But the boldness of\nthought in that unknown reformer was probably lost sight of in the\narrogance of his profanity, and he doubtless paid with his own neck for\nhis folly in defending the pig\u2019s.\n\nIt may be said that all such absurdities are past; that the Jews, the\nAthenians, the Chinese, the Europeans of the middle ages can scarcely\nbe cited as reasonable beings; that they had no rational theory of\npunishment, and that their errors have been long since discarded. But at\nleast their example suggests that even in our own system there may be\ninconsistencies and blemishes which custom and authority hide from our\neyes.\n\nPenal laws are the expression of the moral sentiments of mankind, and\neither are as variable as the other. In Holland it was once a capital\noffence to kill a stork, and in England to cut down a man\u2019s cherry-tree.\nFor a Roman lady to drink wine was as heinous a sin as adultery, for\neither of which she incurred the extreme sentence of the law. In Athens\nidleness was for a long time punishable; though to a Spartan an Athenian\nfined for idleness seemed to be punished for keeping up his dignity.\nIn Mexico drunkenness was a graver crime than slander; for whilst the\nslanderer lost his ears or lips, the drunken man or woman was clubbed or\nstoned to death.\n\nBut if penal laws thus express the wide variability of human morality,\nthey also contribute to make actions moral or immoral according to the\npenalties by which they enforce or prevent them. For not only does\nwhatever is immoral tend to become penal, but anything can be made\nimmoral by being first made penal; and hence indifferent actions often\nremain immoral long after they have ceased to be actually punishable.\nThus the Jews made Sabbath-breaking equally immoral with homicide or\nadultery, by affixing to each of them the same capital penalty; and the\nformer offence, though it no longer forms part of any criminal code,\nhas still as much moral force against it as many an offence directly\npunishable by the law.\n\nBut perhaps the best illustrations of the tendency of actions to\nretain the infamy, attached to them by a past condition of fanatical\npunishments, are the cases of suicide and child-killing. Could a Greek of\nthe classical period, or a cultivated historian like Plutarch reappear on\nearth, nothing would strike him more vividly than the modern conception\nor recent treatment of these crimes. According to Plutarch, Lycurgus, the\ngreat Spartan lawgiver, met his death by voluntary starvation, from the\npersuasion that even the deaths of lawgivers should be of use to mankind,\nand serve them with an example of virtue and greatness; and Seneca held\nthat it was the part of a wise man not to live as long as he could but\nas long as he ought. With what astonishment, then, would not Plutarch or\nSeneca read of recent European punishments for suicide\u2014of Lady Hales\nlosing the estate she was jointly possessed of with her husband, the\nJudge, because he drowned himself; of the stake and the cross-roads; of\nthe English law which still regards suicide as murder, and condemns one\nof two men who in a mutual attempt at self-destruction survives the other\nto the punishment of the ordinary murderer! Is it possible, he would ask,\nthat an action which was once regarded as among the noblest a man could\nperform, has really come to be looked upon with any other feeling than\none of pity or a sad respect?\n\nThe case of infanticide suggests similar thoughts. When we remember that\nboth Plato and Aristotle commended as a valuable social custom that\nwhich we treat as a crime; when we recall the fact that the life of a\nSpartan infant depended on a committee of elders, who decided whether it\nshould live or perish, we shall better appreciate the distance we have\ntravelled, or, as some would say, the progress we have made, if we take\nup some English daily paper and read of some high-minded English judge\nsentencing, at least formally, some wretched woman to death, because, in\norder to save her child from starvation or herself from shame, she has\nreleased it from existence. Yet the feeling, of which such a sentence\nis the expression, is often extolled as one of the highest triumphs of\ncivilisation; and the laws, as if there were no difference between adult\nand infant life, glory in protecting the weakness of a child by their\nmerciless disregard for the weakness of its mother.\n\nBut at least, it will be thought, we have by this time arrived at some\nprinciples about punishment which correspond with the eternal truths of\nequity. Is not Equality, for instance, one of the primary essentials of\npunishment? Does it not stand as a penal axiom with almost the sanction\nof a moral law that all men should suffer equally for equal crimes? Yet,\nif by equality be meant the same punishment, the same kind of labour,\nthe same term of servitude, the same pecuniary fine\u2014and this is the only\nthing it can mean\u2014what more obvious than that the same punishment for\nrich and poor, for young and old, for strong and weak, for men and women,\nfor educated and uneducated, will bring to the constitution of a penal\ncode the utmost inequality the imagination can conceive? Beccaria insists\nthat the law can do no more than assign the same extrinsic punishment to\nthe same crime; that is, the same punishment, regardless of all other\nexternal considerations; and he calls for the infliction of the same\npunishment on the nobleman as on the commoner. Let it be so; but the same\npunishment is no longer an equal one; and hence from this very demand\nfor equality springs the demand for its very opposite, for what Bentham\ncalls the _equability_ of punishment; that is, consideration for the\ndifferent circumstances of individual criminals. So that the same nominal\npunishment not being the same real one, equality of punishment appears to\nbe a chimera, and the law, which punishes, say, a distinguished officer\nless severely than it punishes a costermonger for the same crime, errs\nperhaps really less from actual equality than if it condemned both to\nprecisely the same punishment.\n\nAgain, Proportion between crime and punishment seems to be another\nnatural demand of equity. Yet it is evident that it is only approximately\npossible, and will vary in every age and country according to the\nprevalent notions of morality. Is imprisonment for a year, or\nimprisonment for life, or for how long, a fair and proportionate\npunishment for perjury? Who shall decide? Shall we submit it to the\nopinion of the judges? But has not Romilly left on record the story of\nthe two men tried by two different judges for stealing some chickens, who\nwere sentenced respectively one to imprisonment for two months, and the\nother to transportation? Shall we then give up all attempt at proportion\nand apply the same deterrent as equally efficacious against slight or\ngrave offences? Draco, when asked why he made death the punishment\nfor most offences that were possible, is said to have replied, \u2018Small\nones deserve it, and I can find no greater for the gravest.\u2019 The same\nreasoning was for a long time that of our own law; and in Japan, where\nevery wrong act was one of disobedience to the Emperor, and accordingly\nof equal value, the same penalty of death for gambling, theft, or murder,\nobviated all difficulties with regard to a proportion which is easier to\nimagine than it is to define.\n\nAnalogy between crime and punishment is another idea which, except in\nthe case of death for death, has been relegated from the practice of\nmost criminal laws. Yet the principle has in its favour the authority of\nMoses, the authority of the whole world and of all time, that punishment\nshould, if possible, resemble the crime it punishes in kind; so that\na man who blinds another should be blinded himself, he who disfigures\nanother be disfigured himself. Thus in the old-world mythology, Theseus\nand Hercules inflict on the evil powers they conquer the same cruelties\ntheir victims were famous for; Termenus having his skull broken because\nwith his own skull he broke the heads of others; and Busiris, who\nsacrificed others, being himself sacrificed in his turn. Both Montesquieu\nand Beccaria also advocate analogy in punishment, and so does Bentham\nto some degree; there being, indeed, few greater contrasts between the\ntheories of the great English jurist and modern English practice than\nthat the former should not have deprecated some suffering by burning as a\npenalty analogous to the crime of arson, and that he should have advised\nthe transfixing of a forger\u2019s hand or of a calumniator\u2019s tongue by an\niron instrument before the public gaze as good and efficient punishments\nfor forgery and slander.\n\nThese are some of the difficulties of the subject, which teach us the\nnecessity of constant open-mindedness with regard to all ideas or\npractices connected with criminal law. But, would we further examine our\nestablished notions, we should consider a statement from Hobbes which\ngoes to the very root of the theory of punishment.\n\n\u2018In revenges or punishments,\u2019 says Hobbes, \u2018men ought not to look at the\ngreatness of the evil past, but the greatness of the good to follow,\nwhereby we are forbidden to inflict punishment with any other design than\nfor the correction of the offender and the admonition of others.\u2019 And\nover and over again the same thing has been said, till it has come to be\na commonplace in the philosophy of law, that the object of punishment is\nto reform and deter. As was once said by a great legal authority, \u2018We\ndo not hang you because you stole a horse, but that horses may not be\nstolen.\u2019[42] Punishment by this theory is a means to an end, not an end\nin itself.\n\nYet, supposing it were proved to-morrow that punishment fails entirely of\nthe ends imputed to it; that, for example, the greater number of crimes\nare committed by criminals who have been punished already; that for one\nchance of a man\u2019s reformation during his punishment there are a hundred\nin favour of his deterioration; and that the deterrent influence of his\npunishment is altogether removed by his own descriptions of it; shall we\nsuppose for a moment that society would cease to punish, on the ground\nthat punishment attained none of its professed ends? Would it say to the\nhorse-stealer, \u2018Keep your horse, for nothing we can do to you can make\nyou any better, nor deter others from trying to get horses in the same\nway?\u2019\n\nOr to take a stronger case. A deserter from the ranks escapes to his\nhome, breaks into it at night, robs an infirm father of all the savings\nhe has provided for his old age, and in a struggle for their possession\nso injures him that he dies. Must the law disclaim all indignation, all\nresentment, in the punishment it inflicts, and say to such a ruffian\nthat it only deals hard with him in order to warn others by his example,\nand with the pious hope of making a good man of him in the future? If\nresentment is ever just, is it wrong to give it public expression? If it\nis natural and right in private life, why should it be a matter of shame\nin public life? If there is such a thing as just anger for a single man,\ndoes it become unjust when distributed among a million?\n\nAs a matter of fact the law affords a very clear proof, that its real\npurpose is to administer retributive justice and that punishment has no\nend beyond itself, by its careful apportionment of punishment to crime,\nby its invariable adjustment between the evil a man has done and the evil\nit deals out to him in return. For what purpose punish offences according\nto a certain scale, for what purpose stay to measure their gravity, if\nmerely the prevention of crime is the object of punishment? Why punish\na slight theft with a few months\u2019 imprisonment and a burglary with as\nmany years? The slight theft, as easier to commit, as more tempting\naccordingly, should surely have a harder penalty affixed to it than a\ncrime which, as it is more difficult, is also less probable and less in\nneed of strong counter-inducements to restrain it. That the law never\nreasons in this way is because it weighs offences according to their\ndifferent degrees of criminality, or, in other words, because it feels\nthat the fair _retaliation_ for the burglary is not a fair _retaliation_\nfor the theft.\n\nIf, moreover, the prevention of crime is the chief object of punishment,\nwhy wait till the crime is committed? Why not punish before, as a\ncertain Turk in Barbary is said to have done, who, whenever he bought\na fresh Christian slave, had him forthwith suspended by his heels and\nbastinadoed, that the severe sense of his punishment might prevent him\nfrom committing in future the faults that should merit it?[43] Why\nshould we ever let a man out of prison who has once entered one? Is he\nnot then a hundred times more likely to violate the law than he was\nbefore; and is he ever more dangerous to society than when he has once\nsuffered for the public example, and been released from the discipline\nthat was intended to reform him? It is still true, as Goldsmith said\nlong ago, that we send a man to prison for one crime and let him loose\nagain ready to commit a thousand. And so it is, that of the 74,000 souls\nwho make up our criminal classes, whilst about 34,000 of them fill our\nprisons and reformatories, there is still an army of 40,000 at large in\nour midst, whom we class as _known thieves_, _receivers of stolen goods_,\nand _suspected persons_.[44]\n\nA child\u2019s simple philosophy of punishment therefore is after all the\ncorrect one, when it tells you without hesitation that the reason a man\nis punished for a bad action is simply \u2018because he deserves it.\u2019 The\nnotion of desert in punishment is based entirely on feelings of the\njustice of resentment. So that the primary aim of legal punishment is\nprecisely the same as may be shown historically to have been its origin,\nnamely, the regulation by society of the wrongs of individuals. In all\nearly laws and societies distinct traces may be seen of the transition\nof the _vendetta_, or right of private revenge, from the control of the\nperson or family injured by a crime to that of the community at large.\nThe latter at first decided only the question of guilt, whilst leaving\nits punishment to the pleasure of the individuals directly concerned\nby it. Even to this day in Turkey sentences of death for murder run as\nfollows: So-and-so is condemned to death _at the demand of the victim\u2019s\nheirs_; and such sentences are sometimes directed to be carried out in\ntheir presence.[45] By degrees the community obtained control of the\npunishment as well, and thus private might became public right, and the\nresentment of individual injuries the Retributive Justice of the State.\n\nThe recognition of this regulation of resentment as the main object of\npunishment affords the best test for measuring its just amount. For\nthat amount will be found to be just which is necessary; that is to\nsay, which just suffices for the object it aims at\u2014the satisfaction\nof general or private resentment. It must be so much, and no more, as\nwill prevent individuals from preferring to take the law into their own\nhands and seeking to redress their own injuries. This degree can only\nbe gathered from experience, nor is it any real objection to it, that it\nmust obviously be somewhat arbitrary and variable. Both Wladimir I., the\nfirst Christian Czar of Russia, and Wladimir II. tried the experiment of\nabolishing capital punishment for murder; but the increase of murders\nby the _vendetta_ compelled them to fall back upon the old modes of\npunishment.[46] Some centuries later the Empress Elizabeth successfully\ntried the same experiment, without the revival of the _vendetta_, the\nstate of society having so far altered that the relations of a murdered\nman no longer insisted on the death of his murderer. But had Elizabeth\nabolished all legal punishment for murder\u2014had she, that is, allowed no\npublic _vendetta_ of any kind\u2014undoubtedly the _vendetta_ would have\nbecome private again.\n\nBy the same rule, in the case of theft, the value of the thing stolen,\nwith some equivalent for the trouble of its recovery, taken from the\noffender or made a lien on his earnings, appears to be all that justice\ncan demand. Sir Samuel Romilly, himself second to none as a lawyer,\nwrote seventy years ago: \u2018If the restitution of the property stolen,\nand only a few weeks\u2019 or even but a few days\u2019 imprisonment were the\nunavoidable consequence of theft, no theft would ever be committed.\u2019\nYet the following sentences are taken at random from authentic English\nsources: three months\u2019 imprisonment for stealing a pipe, six months for\nstealing a penny, a twelvemonth for stealing an umbrella, five years\u2019\npenal servitude for stealing some stamps from a letter, seven years for\nstealing twopence. In such cases the principle of vindictiveness exceeds\nthe limits of necessity, and therefore of justice; whilst the law loses\nall its dignity as the expression of unimpassioned resentment.\n\nIs it possible, then, so beforehand to apportion punishments to crimes\nthat when a crime is committed it shall be but necessary to refer to a\ncode and at once detect its appropriate punishment? Or must the law be\ngeneral in its language, and leave a wide margin to the discretion of the\njudge? Beccaria would have the judicial function confined solely to the\nascertainment of the fact of a crime, its punishment preordained by the\nlaw. On the other hand it is said, that it is impossible to anticipate\nevery case that may arise; that no two cases are ever alike; that it\nis better to leave the nice adjustment of penalties to the wisdom and\nimpartiality of a judge, and only limit his discretion by rules of a most\nexpansive description.\n\nThe Chinese penal code of 1647 is probably the nearest approach to\nBeccaria\u2019s conception, and nothing is more marvellous than the precision\nwith which it apportions punishments to every shade of crime, leaving\nno conceivable offence, of commission or omission, without its exact\nnumber of bamboo strokes, its exact pecuniary penalty, or its exact term\nor distance of banishment. It is impossible in this code to conceive any\ndiscretion or room for doubt left to the judicial officers beyond the\ndiscovery of the fact of an alleged crime. But what is practicable in\none country is practicable in another; so that the charge so often urged\nagainst thus eliminating judicial discretion, that it is fair in theory\nbut impossible in practice, finds itself at direct issue with the facts\nof actual life.[47]\n\nBut although the laws of every country thus recognise in different\ndegrees the retributive nature of punishment, by their constant attention\nto its apportionment to crime, there is another corollary of the\ndesirability of a just proportion between the two, which has never been,\nnor is ever likely to be, accepted: namely, that from the point of view\nof the public interest, which in theory is the only legal view, it is no\nmitigation of a crime that it is a first offence, nor any aggravation of\none that it is the second.\n\nFor since the observance of some regular proportion between crime and\npunishment, whatever that proportion may be, constitutes the first\nprinciple of an equitable code; and since the most important thing in\npublic morality is a fixed penal estimate for every class of crime; it\nis above all things desirable that the law should always adhere to such\nproportion and estimate, by concerning itself solely with the crime\nand not with the criminal. The injury to the public is precisely the\nsame whether a criminal has broken the law for the first time or for\nthe thousandth and first; and to punish a man more severely for his\nsecond offence than for his first, because he has been punished before,\nis to cast aside all regard for that due proportion between crime and\npunishment which is after all the chief ingredient of retributive\njustice, and to inflict a penalty often altogether incommensurate with\nthe injury inflicted on the public.\n\nFor instance, the injury to the public is no greater the hundredth time\na man steals a rabbit than it is the first. The public may be interested\nin the prevention of poaching, but it is not interested in the person\nof the poacher, nor in the number of times he may have broken the law.\nThe law claims to be impersonal\u2014to treat offences as they affect the\nState, not as they affect individuals; to act mechanically, coldly, and\ndispassionately. It has, therefore, simply to deal with the amount of\ninjury done by each specific offence, and to affix to it its specific\npenalty, regardless of all matters of moral antecedents. The repetition\nof an offence may make its immorality the greater, but its criminality\nremains the same, and this only is within the province of the law.\n\nIt is the specific crime, not the fact that it is a second or third\nfelony, which is injurious. Neither a community nor an individual suffer\nmore from the commission of a crime by a man who commits it for the\nsecond time than from its commission by a man who has never committed it\nbefore. If two brothers are each robbed of a pound apiece on two several\noccasions, the one who is robbed each time by the same criminal suffers\nno more than the one who is robbed each time by different criminals.\nStill less is the public more injured in one case than in the other.\nTherefore the former brother is entitled for his second loss to no more\nrestitution than the other, nor has any more claim on society for the\ninfliction of a severer punishment on his behalf than that inflicted for\nthe second loss of his brother.\n\nA few stories may be taken as illustrative of thousands to indicate the\nmischief and travesty of justice which arises from the neglect of this\nprinciple, and from the custom of making a legal inquiry into moral\nantecedents.\n\nA farm labourer, with a wife and four children, and earning eleven\nshillings a week, was imprisoned in the county gaol for two months for\nthe theft of a pound of butter. Soon after his release sickness entered\nhis home, and to supply his children\u2019s wants he again yielded to\ntemptation and stole twelve duck\u2019s eggs. For this he was sentenced to\nseven years\u2019 penal servitude; or rather not for this theft, but because\nhe had already incurred a severe punishment for a theft of some butter.\nThe sentence was most perfectly lawful, but was it not perfectly unjust?\n\nAlmost any number of the \u2018Times\u2019 will illustrate the same thing. Take\nthe account of the Middlesex Sessions of February 24, 1880. There we\nfind the case of a man and woman sentenced to seven and five years\u2019\npenal servitude respectively. What enormities had they committed? The\nman had stolen three-halfpence from somebody; and the woman, who was a\nlaundress, had stolen two skirts, of the value of six shillings, from a\nvendor of sheep\u2019s trotters. The man had incurred previously seven years\u2019\npenal servitude for a robbery with violence, and the woman had three\ntimes in her life been sentenced to imprisonment. But is it just that,\nbecause a man has been severely punished once, no rule nor measure shall\nbe observed with him if he incur punishment again? And might not a vendor\nof sheep\u2019s trotters have been satisfied, without a laundress becoming a\nburden to the State?\n\nIt will be said, of course, that the practice of giving increased\nsentences where there have been previous convictions prevails all over\nthe world and in all states of civilisation. But in that very fact lies\nthe strength of the argument against it. By the Roman law a third case\nof theft, however slight, exposed a man to death.[48] By the laws of St.\nLouis the man who stole a thing of trifling value lost an ear the first\ntime, a foot the second, and was hung the third. By the criminal code\nof Sardinia in the fifteenth century, asses were condemned to lose one\near the first time they trespassed on a field not their master\u2019s, and\ntheir second ear for a second offence. But enough of such instances. The\npractice is undoubtedly universal; but so at one time were ordeals and\ntortures. May not, then, the practice be, like them, part and parcel of\na crude state of law, such as was unavoidable in its emergence to better\nthings, but such as it is worth some effort to escape from?\n\nThere are, however, certain limitations even to the supposed universality\nof the custom. For the Roman jurists did not consider a re-conviction as\na circumstance in itself which justified aggravation of punishment; and\nall that can be gathered from some fragments in the Pandects and Code is,\nthat some particular cases of repeated crimes were punished more severely\nthan a first offence. But they were crimes _of the same kind_; and a man\nwhose first crime was a theft and whose second was an assault would\nnot have incurred an aggravated penalty. It is the same to-day in the\nAustrian, Tuscan, and a few other codes: a second crime is only punished\nmore severely as a second crime when it is of the same kind as the first,\nso that it would not suffice to prove simply a previous conviction\nfor felony irrespective of the particular sort. There is also another\nlimitation that has sometimes been recognised, for in the Roman law the\nrule of an increased penalty fell to the ground, if three years elapsed\nwithout offence between the punishment for one crime and the commission\nof a second.[49]\n\nIf it be said that a second conviction makes it necessary for society\nto protect itself by stronger measures against a member who thus defies\nits power, it may be asked whether this is not an application of exactly\nthe same reasoning to the crimes of individuals, which as applied to\nthe crimes of all men generally led our ancestors so far astray in the\ndistribution of their punishments. Nothing could have been more plausible\nthan their reasoning: \u2018The punishment in vogue does not diminish the\ncrime, therefore increase the punishment.\u2019 But nothing could have been\nless satisfactory than the result, for with the increase of punishment\nthat of crime went hand in hand. The same reasoning is equally plausible\nin the case of individuals, with the same perplexing question resulting\nin the end: \u2018How comes it that, in spite of the threatened greater\npunishment, the majority of criminals are yet old offenders?\u2019\n\nIt is unhappily no mere theory, that the majority of crimes are\ncommitted precisely by those who risk most in committing them; by\nthose, that is, who commit them with the aggravated penalty full in\nview. By the existing law (of which both the Criminal Code- and the\nPenal Servitude-Commissioners have proposed the mitigation) anyone\nconvicted of felony after a previous conviction for felony is liable to\npenal servitude for life, or to imprisonment with hard labour for four\nyears, with one or more whippings. The minimum punishment for a second\nconviction of felony is seven years. Yet, with the knowledge of such\nincreased punishments before their eyes, with the full consciousness of\ntheir liabilities as old offenders, official statistics show that of both\nthe male and female convicts in the English convict prisons _considerably\nmore than half have incurred previous convictions_.[50] Of the male\nconvicts in 1878, 79 per cent., and of the female 89 per cent., were\ncases of reciduous crime. May it not, then, be argued from such a failure\nof the system to an error in the principle on which it rests? For is it\nnot evident that the aggravated penalty does as little to deter as the\noriginal punishment does to reform?\n\nBut undoubtedly punishment, although in its origin and present intention\nvindictive, must exercise a certain preventive force against crime,\nand this preventive force can scarcely be estimated, for that which is\nprevented is, of course, not seen. But the efficiency of punishment as a\ndeterrent is proportioned to its certainty, and there is a large element\nof uncertainty that can never be eliminated. For every malefactor there\nare two hopes: first, that he may escape detection or apprehension;\nsecondly, that he may escape conviction. That his hopes of impunity are\nnot without reason greater than his fears of punishment the following\nfacts attest.\n\nIn a period of ten years, from 1867 to 1876, the total number of\nprincipal indictable offences committed in the metropolis against\nproperty\u2014and these constitute the great majority of crimes\u2014were\n117,345. But the apprehensions for these offences were only 26,426,\nthe convictions only 19,242. In other words, the chances against\napprehension for such crimes as burglary or larceny are four to one in\nfavour of the criminal, whilst the chances against his conviction and\npunishment are fully as high as six to one. When we thus find that only\n16 per cent. of such crimes receive any punishment, the remaining 84\nper cent. escaping it altogether, and that only 22 per cent. are even\nfollowed by apprehension, we shall the more admire the general efficacy\nof our criminal machinery, in which prevention by punishment plays so\nsmall a part.[51]\n\nBut punishment bears much the same relation to crime in the country at\nlarge that it does in the metropolis. Let one year be taken as a fair\nsample of all. The total number of indictable offences of all kinds\n_reported to the police_ in 1877-8 was 54,065. For these offences only\n24,062 persons were apprehended. Of these latter only 16,820 were held to\nbail or committed for trial; and of these again 12,473 were convicted and\npunished.[52] So that, though the proportion of convictions to the number\nof prisoners who come to trial is about 75 per cent., the proportion of\nconvictions, that is, of punishments, to the number of crimes committed\nis so low as 23 per cent. Of the 54,065 crimes reported to the police\nin one year 41,592 were actually committed with impunity; and thus the\nproportion which successful crime of all sorts bears to unsuccessful is\nrather more than as four to one.[53] So that there is evident truth in\nwhat a good authority has said: \u2018Few offences comparatively are followed\nby detection and punishment, and with a moderate degree of cunning an\noffender may generally go on for a long time with but feeble checks, if\nnot complete impunity.\u2019[54]\n\nAgainst this general uncertainty of punishment, which no severity in the\nlaw can affect or make up for, the only certainty of punishment dependent\non the law is in the event of conviction. But even this certainty is of\na very qualified nature, for it depends on sentiments of due proportion\nbetween a crime and its penalty, which in no two men are the same. Every\nincrease of severity in punishment diminishes its certainty, since it\nholds out to a criminal fresh hopes of impunity from the clemency of his\njudges, prosecutors, or jury.\n\nBut there is a still further uncertainty of punishment, for it is as well\nknown in the criminal world as elsewhere that the sentence pronounced in\ncourt is not the real sentence, and that neither penal servitude for\nfive years nor penal servitude for life mean necessarily anything of\nthe sort. The humanity of modern legislation insists on a remission of\npunishment, dependent on a convict\u2019s life in the public works prisons,\nin order that the element of hope may brighten his lot and perchance\nreform his character. This remission was at first dependent simply on\nhis conduct, which was perhaps too generously called good where it was\nhard for it to be bad; now it depends on his industry and amount of\nwork done. Yet the element of hope might be otherwise assured than by\nlessening the certainty of punishment, say, by associating industry\nor good conduct with such little privileges of diet, letter-writing,\nor receiving of visits, as still shed some rays of pleasure over the\nmonotony of felon-life. It should not be forgotten, that the Commission\nof 1863, which so strongly advocated the remissibility of parts of penal\nsentences, did so in despite of one of its principal members, against\nno less an authority than the Lord Chief Justice, then Sir Alexander\nCockburn.[55] The very fact of the remissibility of a sentence is an\nadmission of its excessive severity; for to say that a sentence is never\ncarried out is to say that it need never have been inflicted.\n\nThe question, therefore, arises, Does crime depend to any appreciable\nextent on imprisonment at all, or on the length or shortness of\nsentences?\n\nThe right to ask such a question derives itself from recent experience.\nIn 1853 the country decided to shorten terms of penal servitude as\ncompared with those of the then expiring system of transportation, for\nwhich they were to be substituted. Four years later it was resolved\nto equalise terms of penal servitude with those formerly given of\ntransportation, though transportation for seven years was still to have\nits equivalent in three of penal servitude. Then came the garrotting\nyear, 1862, in consequence of which the minimum term of penal servitude\nwas raised to five years, whilst no sentence of penal servitude, after\na previous conviction of felony, was to be for less than seven years.\nNow again the tide has turned in favour of shorter sentences, and it is\nofficially proposed to relinquish the latter minimum of servitude as too\nsevere, and as leading in practice to sentences of simple imprisonment,\nwhich on the other hand are declared to be too slight.\n\nIn such a zigzag path has our penal legislation been feeling, and is\nstill feeling, its way, with evident misgiving of that principle of\nrepression, as false as it is old, that an increase of crime can only be\nmet by an increase of punishment.\n\nThere seem to be three principal reasons why, under our present system,\ncrime still keeps its general level, irrespective of all changes in our\ndegrees of punishment.\n\nIn the first place, our public works prisons, however excellent for\ntheir material results, are so many schools of crime, where for the one\nhonest trade a man learns by compulsion he acquires a knowledge of three\nor four that are dishonest. \u2018I have become acquainted,\u2019 says a released\nconvict, \u2018with more of what is bad and evil, together with the schemes\nand dodges of professional thieves and swindlers, during the four years\nI served the Queen for nothing, than I should have done in fifty years\noutside the prison walls.\u2019 \u2018The association rooms at Dartmoor are as bad\nas it is possible for anything to be \u2026 they are really class-rooms in the\ncollege of vice, where all are alike students and professors. The present\nsystem in most instances merely completes the man\u2019s vicious and criminal\neducation, instead of in the slightest degree reforming him.\u2019[56] It has\nbeen attempted in various ways to obviate this difficulty, by diminishing\nopportunities of companionship; but the real demoralisation of prison\nlife is probably due less to the actual contact of bad men with one\nanother than to the deadened sense of criminality which they derive\nfrom the feeling of numbers, just as from the same cause the danger of\ndrowning is forgotten on the ice. Prisoners in gangs lose all shame of\ncrime, just as men in armies forget their native horror of murder.\n\nIn the second place, a large proportion of the habitual criminal class\nis formed of weak-minded or imbecile persons, notorious for the repeated\ncommission of petty thefts, crimes of violence and passion, and confessed\nto be \u2018not amenable to the ordinary influences of self-interest or\nfear of punishment.\u2019[57] It is now proposed to separate this class of\nprisoners from others; but is punishment operative on them at all? Is not\ntheir proper place an asylum?\n\nIn the third place, there is the discharge from prison; and truly, if the\nprevention of crime be a main object of society, it is just when a man\nis released from prison that, from a social point of view, there would\nseem most reason to send him there. For even if, whilst in prison, he has\nlearned no dishonest means of livelihood, how shall he, when out of it,\nset about obtaining an honest one? If temptation was too strong for him\nwhen all doors were open to him, is it likely to be less strong when most\nare closed? Will it not be something like a miracle, if, with two pounds\npaid to him on his discharge and his railway fare paid home, he eat for\nany considerable time the bread of honesty, and sleep the sleep of the\njust?\n\nThat these causes do to a great extent defeat the preventive effect of\nour penal laws, is proved by the tale of our criminal statistics, which\nreveal the fact that most of our crime is committed by those who have\nonce been punished, and that of general crime about 77 per cent. is\ncommitted with impunity. But if so large a proportion of crimes pass\nunpunished altogether, it is evident that society depends much less for\nits general security upon its punishments than is commonly supposed.\nMight it not, therefore, still further relax such punishments, which\nare really a severe tax on the great majority of honest people for the\nrepression of the very small proportion who constitute the dishonest part\nof the community?[58]\n\nFor if punishment is weak to prevent crime, it is strong to produce it,\nand it is scarcely open to doubt that its productive force is far greater\nthan its preventive. Our terms of imprisonment compel more persons to\nenter a career of crime than they prevent from pursuing one, that being\noften the only resource left for those who depend on a criminal\u2019s labour.\nWhether in prison or the workhouse, such dependents become a charge\nto society; nor does it seem reasonable, that if one man under sore\ntemptation steals a loaf, a hundred other men who do no such thing must\ncontribute to keep, not only the prisoner himself, but his family too, in\ntheir daily bread for so long a time as it pleases the law to detain him\nfrom earning his and their necessary subsistence.\n\nSince, therefore, there is more to fear from a punished than from an\nunpunished criminal, there is the less reason to regret the general\nimpunity of crime. There is indeed a large class of crimes for the\nprevention of which more would be done, by leaving them to their natural\nconsequences, and to the strong power against them which the general\ninterests and moral feelings of mankind will always enforce, than by\nactual punishment. It is particularly crimes of dishonesty which are\nbest punished by the mere fact of their discovery. By the Norwegian law\nif an offender holds any official place he is punished, not by fine\nor imprisonment, but by the loss of his office and all the privileges\nconnected with it.[59] And if we imagine a country without any legal\npenalty at all for theft or dishonesty, thieves and their tribe would\nsoon find their proper punishment, by that process of social shifting,\nwhich would drive them to the most deleterious or dangerous occupations\nof life even more effectually than it so drives them at present. The less\ndependence is placed on the penal sanctions of crime, the stronger do the\nmoral restraints from it become.\n\nIt is against crimes affecting the person that punishments are most\ndesirable and their vindictive character most justly displayed. Personal\nviolence calls for personal detention or personal chastisement; and the\nprinciple of analogy in punishment is most appropriate in the case of a\nman who maltreats his wife or abuses his strength against any weakness\ngreater than his own. Punishment in such cases is a demand of natural\njustice, whether anyone is affected by the example or not, and whether\nor not the man himself is improved by it. Not only is it the best means\nof enforcing that personal security which is one of the main functions\nof the State, but it is an expression of that sense of moral reprobation\nwhich is so necessary to the good order of society.\n\nRepression by the law seems likewise the only means of preventing that\nlarge class of actions which affect the general character and tone of\na country, whilst they injuriously affect no individual in particular.\nThe protection of creatures too feeble to protect themselves justifies,\nunder this head, the legal punishment of cruelty to animals. It is idle\nto say that the law can do nothing against the average moral sense of\nthe community, for the law is often at first the only possible lever of\nour moral ideas. Were it not for the law we should still bait bulls and\nbears, and find amusement in cock-throwing; and till the law includes\nhares and pigeons within the pale of protection drawn so tenderly round\nbulls and bears, no moral sense is likely to arise against the morbid\npleasures of coursing and pigeon-shooting.\n\nThat the punishments of long custody by which we now defend our lives\nand properties are out of all proportion to the real needs of social\nexistence is indicated by such a fact as that no increase of crime used\nto attend the periodical release of prisoners which was for long, if\nit is not still, customary in Russia at the beginning of each reign.\nNeither in India, when on the Queen\u2019s assumption of the title of Empress,\na pardon was granted to about one-tenth of the prison population, did\nany increase of crime ensue, as, according to all criminal reasoning,\nit should have done, if the safety of society depends on the custody\nof the criminal class.[60] In Sweden a low rate of crime seems to be a\ndirect consequence of a low scale of punishment. Of those condemned to\n_travaux forc\u00e9s_, which may vary from a period of two months to a period\nfor life, 64 per cent. are condemned for one year, and only 3 per cent.\nare condemned for seven years;[61] whilst sentences to the latter period\nin England form between 50 and 60 per cent. of the sentences to penal\nservitude.\n\nBut if the custody of the criminal class has been overrated as a\npreventive of crime, or regarded as the sole preventive instead of one\namongst many, it does not follow that crime on that account must be left\nto itself. It only follows that we should trust to punishment less and to\nother agencies more in our war with crime, and that we should seek to\ncheck the latter at its source, not in its full stream, by attending to\nthe improvement of the general conditions of life. It is quite certain,\nfor instance, that the spread of education, of which Beccaria wrote in\nterms of such despair, means the diminution of crime; and as the majority\nof crimes are committed between the ages of twenty and forty, it may be\npredicted that from the present year onwards the great Act of 1870 will\nbear increasing fruit in lowering our criminal statistics. More too may\nbe hoped for from the electric light than from any multiplication of\nprisons.\n\nThere are a few obvious remedies by which the inducements to crime might\nbe easily diminished. In 1808 Sir Samuel Romilly brought in a bill, to\nprovide persons tried and acquitted of felony with compensation, at the\ndiscretion of the judge, for the loss they incurred by their detention\nand trial. This was objected to, on the ground that the payment of such\ncompensation out of the county rates would discourage prosecutions; and\nthe only justice done to men falsely accused from that day to this is the\nauthorisation given to goal-governors in 1878 to provide prisoners, who\nhave been brought from another county for trial at the assizes and have\nbeen acquitted, with means of returning to their own homes. Something\nmore than this is required to save a man so situated from falling into\nreal crime.\n\nOne thing that might be done, which would also serve at the same time to\nkeep a prisoner\u2019s family from want, the main source of crime, would be\nthe formation of a Prisoners\u2019 Fund, for his and their benefit. For this\nthere is a precedent in a quite recent Act. For the Act, which abolished\nthe forfeiture of a felon\u2019s property, enabled the Crown to appoint an\nadministrator of it, for the benefit of the persons injured by the crime\nand the felon\u2019s family, the property itself and its income reverting\nultimately to the convict or to his representatives. There could,\nhowever, be no objection in justice to the forfeiture of a proportionate\npart of every felon\u2019s property, such forfeiture to be dedicated to the\nformation of a fund, out of which assistance should be given, both to\nthe families of prisoners during their custody and to the prisoners\nthemselves on their discharge.[62] Such a fund might be still further\nincreased by the substitution of a lien on a man\u2019s wages or income for\nmany minor offences now punished, but not prevented, by imprisonment.\n\nBy the present English law a person convicted of more offences than one\nmay be sentenced for each offence separately, the punishment of each one\nin succession taking effect on the expiration of the other. By this law\n(which the Criminal Code Commissioners propose to alter) imprisonment\nmay be spread over the whole of a lifetime. On this point the Chinese\nlaw again offers a model, for it enacts that when two or more offences\nare proved against a man, they shall all be estimated together, and\nthe punishment of all the lesser offences be included in that of the\nprincipal charge, not in addition to it So also if the offences are\ncharged at different times, and the punishment of one has been already\ndischarged, there is no further punishment for the other subsequent\ncharges, unless they be charges of greater criminality, in which case\nonly the difference between the punishments can be legally incurred.[63]\nBut this of course presupposes a definite scale of crimes and punishments.\n\nSuch are some of the problems connected with penology, which best\nillustrate the imperfection of its hitherto attained results. Only one\nthing as yet seems to stand out from the mist, which is, that closely\nassociated as crime and punishment are both in thought and speech, they\nare but little associated in reality. The amount of crime in a country\nappears to be a given quantity, dependent on quite other causes than\nthe penal laws directed to its repression. The efficiency of the latter\nseems proportioned to their mildness, not to their severity; such\nseverity being always spoiled by an inevitable moderation in practice.\nThe conclusion, therefore, would seem to be, that a short simple code,\nwith every punishment attached to every offence, with every motive for\naggravation of punishment stated, and on so moderate a scale that no\ndiscretion for its mitigation should be necessary, would be the means\nbest calculated to give to penal laws their utmost value as preventives\nof crime, though experience proves that as such preventives their place\nis a purely secondary one in a really good system of legislation.\n\n\n\n\nFOOTNOTES\n\n[1] By a Cabinet Order of June 3, 1740. See Carlyle\u2019s _Frederick the\nGreat_, iii. 7.\n\n[2] Pike, _History of Crime in England_, ii. 283, 346.\n\n[3] Beccaria was born in 1738, and his book appeared in 1764. Therefore\nhe was only 26. The 28 must refer to the time he wrote the letter.\n\n[4] _Lettre 80._\n\n[5] _I Piaceri della Immaginazione_, in his collected works by Villari,\np. 546.\n\n[6] Villari, _Opere di Beccaria_, 547.\n\n[7] It is published in the Haarlem edition of the _Dei Delitti_, 1766.\n\n[8] The letter is in Diderot\u2019s _\u0152uvres_, ix. 451-66.\n\n[9] See the two volumes of their _Lettere_ published at Milan by Dr. C.\nCasati, 1880.\n\n[10] _Lettere_, ii. 221: \u2018Il suo libro d\u2019oro sicuro \u00e8 chiuso.\u2019\n\n[11] _Lettere_, ii. 150.\n\n[12] Pietro had sent some of his manuscripts to Morellet, perhaps in\nthe hope that the latter would offer to translate them. Anyhow Beccaria\nbrought back no compliments to Pietro from Paris, and the key to Pietro\u2019s\nfeelings lies in the words he wrote to his brother the day after\nBeccaria\u2019s return: \u2018Non mi ha detto una sillaba che mostri che alcuno\nsappia in Parigi, che io sono al mondo.\u2019\n\n[13] _Lettere_, i. 391; ii. 70, 127, 151, 211, 295. It is satisfactory\nfor this point to be settled, for even so lately as 1862, Sig. Cant\u00f9, in\nhis work on Beccaria, attributes the _Risposta_ to him, saying that all\nthe intrinsic proofs are in favour of its being his work. P. 58.\n\n[14] _Ibid._ ii. 159.\n\n[15] _Lettere_, ii. 225.\n\n[16] Morellet, _M\u00e9moires_, i. 167: \u2018Revenu \u00e0 Milan il a fait peu de\nchose, et sa fin n\u2019a pas r\u00e9pondu \u00e0 son d\u00e9but, ph\u00e9nom\u00e8ne commun parmi les\ngens de lettres d\u2019Italie, qui ont un premier feu bien vif, mais qui, \u00e0 25\net 30 ans, se d\u00e9sabusent comme Salomon et reconnaissent que la science\nest vanit\u00e9, sans avoir attendu d\u2019\u00eatre aussi savant que lui.\u2019\n\n[17] Cant\u00f9, Beccaria, 42.\n\n[18] In a book called _Cautio Criminalis_, published in 1718.\n\n[19] Jardine\u2019s _Reading on Torture_.\n\n[20] Tooke\u2019s _Catharine II._, 441-8. Rambaud\u2019s _Russie_, 476. \u2018Dans\nl\u2019instruction pour la confection du nouveau Code, Catharine II., suivant\nsa propre expression, avait _pill\u00e9_ les philosophes d\u2019Occident, mais\nsurtout Montesquieu et Beccaria.\u2019\n\n[21] Morellet, _M\u00e9moires_, i. 165.\n\n[22] _General C. Lee\u2019s Memoirs._\n\n[23] This fact rests on the authority of a gentleman of Pisa, who told\nit to Dr. Rush, the so-called \u2018American \u00c6sculapius,\u2019 who wrote against\ncapital punishment towards the end of the last century.\n\n[24] By Gustavus III. It had, however, been discontinued long before, as\nBeccaria speaks of it as non-existent when he wrote.\n\n[25] Turnbull\u2019s _Visit to Philadelphia Prison_, 1797.\n\n[26] _Times_, March 1, 1880.\n\n[27] For most of the above facts the writer is indebted to the papers\npublished by the Howard Association, kindly sent to him by the Secretary,\nMr. Tallack.\n\n[28] Diodorus Siculus, i. 65: \u1f00\u03bd\u03c4\u1f76 \u03b3\u1f70\u03c1 \u03c4\u03bf\u1fe6 \u03b8\u03b1\u03bd\u03ac\u03c4\u03bf\u03c5 \u03c4\u03bf\u1f7a\u03c2 \u03ba\u03b1\u03c4\u03b1\u03b4\u03b9\u03ba\u03b1\u03c3\u03b8\u03ad\u03bd\u03c4\u03b1\u03c2\n\u1f20\u03bd\u03ac\u03b3\u03ba\u03b1\u03b6\u03b5 \u03bb\u03b5\u03b9\u03c4\u03bf\u03c5\u03c1\u03b3\u03b5\u1fd6\u03bd \u03c4\u03b1\u1fd6\u03c2 \u03c0\u03cc\u03bb\u03b5\u03c3\u03b9 \u03b4\u03b5\u03b4\u03b5\u03bc\u03ad\u03bd\u03bf\u03c5\u03c2.\n\n[29] Gibbon, c. 48: \u2018During his government of twenty-five years the\npenalty of death was abolished in the Roman Empire.\u2019 A.D. 1118-1143.\n\n[30] Beccaria doubtless got the expression from Helvetius, who used it in\nhis _L\u2019Esprit_, i. 228, 291.\n\n[31] _Vicar of Wakefield_, c. 27; and _Citizen of the World_, letter 79.\nJohnson was more outspoken in the _Rambler_, No. 114 (1751), in which he\nadvocated the restriction of capital punishment to cases of murder.\n\n[32] Lord Kames\u2019 _Historical Law Tracts_. _Criminal Law._ 1776.\n\n[33] _Enquiry into the Late Increase of Robbers_ (1751).\n\n[34] Meredith\u2019s speech of May 13, 1777, in _Parl. Deb._, xix. 239.\n\n[35] Lecky\u2019s _England_, i. 506.\n\n[36] Speech, May 11, 1810.\n\n[37] Romilly\u2019s _Memoirs_, ii. 322.\n\n[38] Hansard, and Campbell\u2019s _Chief Justices_, iii. 233. The arguments\nare almost Paley\u2019s word for word.\n\n[39] Stephen\u2019s _English Criminal Law_, 156, 178.\n\n[40] Sir G. Staunton\u2019s _Penal Code of China_, 347, 416.\n\n[41] See several instances in Baring Gould\u2019s _Curiosities of Olden\nTimes_, in the chapter on Queer Culprits.\n\n[42] So Seneca, _De Ira._, i. 16: \u2018Nemo prudens punit quia peccatum\nest, sed ne peccetur. Revocari enim pr\u00e6terita non possunt, futura\nprohibentur.\u2019 Compare _ibid._, ii. 31, and Plato, _Laws_, xi. 934 A.\n\n[43] The same is the philosophy of the nursery-rhyme book:\u2014\n\n \u2018That\u2019s Jack. Lay a stick on his back.\n What\u2019s he done? I cannot say.\n We\u2019ll find out to-morrow, and beat him to-day.\u2019\n\nSo said also a more serious authority, Periander, tyrant of Corinth,\nsometimes counted among the Seven Wise Men of Greece: \u03bc\u1f74 \u03bc\u03cc\u03bd\u03bf\u03bd \u03c4\u03bf\u1f7a\u03c2\n\u1f00\u03bc\u03b1\u03c1\u03c4\u03ac\u03bd\u03bf\u03bd\u03c4\u03b1\u03c2 \u03ac\u03bb\u03bb\u1f70 \u03ba\u03b1\u1f76 \u03c4\u03bf\u1f7a\u03c2 \u03bc\u03ad\u03bb\u03bb\u03bf\u03bd\u03c4\u03b1\u03c2 \u03ba\u03cc\u03bb\u03b1\u03b6\u03b5. \u2018Punish not only those who\nhave done wrong, but those who are going to.\u2019\n\n[44] _Judicial Statistics_, 1878, xi.\n\n[45] White\u2019s _Three Years in Constantinople_, ii. 331.\n\n[46] Pierson, _Aus Russland\u2019s Vergangenheit_, 31, 32.\n\n[47] See Sir G. Staunton\u2019s _Penal Code of China_, lxxi. 278-9, 285, 345,\n367, 381, 449, for tables apportioning punishment to different crimes\naccording to an exact mathematical scale. There is no reason to suppose\nthat this scale was never acted upon, even if it is not observed now,\nabout which there is no good evidence.\n\n[48] Farinaccius: \u2018Potest pro tribus furtis, quamvis minimis, p\u0153na mortis\nimponi.\u2019 The philosophy of this was, that to do anything twice was the\nsame as doing it frequently: \u2018Quod bis fit, frequenter fieri dicitur.\u2019\n\n[49] The French have two words, _r\u00e9cidive_ and _r\u00e9cidiver_, to signify a\nrelapse into crime, the word being applied as a metaphor from medicine,\nwhere it means the recurrence of a disease. In English we might adopt the\nword _reciduous_ to express renewed acts of crime after punishment.\n\n[50] The figures for May 1878 are: Men, 8,983; of these only 2,064 had\nhad no previous conviction of any kind, 4,672 had had sentences short of\npenal servitude, and 2,247 penal servitude sentences. Of the 1,226 women,\n124 had never been convicted before, 635 had had sentences short of penal\nservitude, 567 penal servitude sentences.\u2014(_P.S. Report_, iii. 1170. See\nalso ii. 206, 296, 364.)\n\n[51] _Penal Servitude Acts Commission_, 1879, vol. iii. 1195-6.\n\n[52] _Judicial Statistics_, 1878, xvi. 45.\n\n[53] The same seems to be also true of France. \u2018Quoi de plus important\nque ce fait, qu\u2019en moyenne annuelle 30,000 crimes ou d\u00e9lits restent\nimpunis parce que les auteurs en sont inconnus, et 10,000 environ parce\nque les charges port\u00e9es contre les accus\u00e9s ou pr\u00e9venus ont \u00e9t\u00e9 jug\u00e9es\ninsuffisantes.\u2019\u2014LEGOYT, _La France et l\u2019\u00c9tranger_, i. 406.\n\n[54] Hill, _Crime_, 28.\n\n[55] _Memorials of Millbank_, ii. 274-5.\n\n[56] The author of _Five Years\u2019 Penal Servitude_. With this testimony\nagrees thoroughly that of the Chaplain of Parkhurst Prison (_P.S. Rep._\niii. 707-8), that of the Governor of Portland Prison (ii. 164-5), and\nthat of the Governor of Spike Island (iii. 814-5).\n\n[57] _Penal Servitude Report_, i. 43.\n\n[58] If we include offences proceeded against summarily with the\nindictable offences reported, about 2 per cent. of the population may be\ncounted as dishonest.\n\n[59] _Strafgesetzbuch_, c. vi. 33.\n\n[60] Wheeler, _Imperial Assemblage at Delhi_, 1877, 124, 127.\n\n[61] _Congr\u00e8s p\u00e9nitentiaire international._ Tableau xii.\n\n[62] There is a precedent for such a law in the legislation of Leopold,\nGrand Duke of Tuscany: \u2018Les malheureux injustement emprisonn\u00e9s et\nreconnus innocents devaient \u00eatre indemnis\u00e9s au moyen d\u2019un fonds form\u00e9 par\nles amendes, m\u00e9sure \u00e9quitable et profond\u00e9ment humaine.\u2019\u2014LOISELEUR, _Hist.\ndes Peines_, 336.\n\n[63] Staunton\u2019s _Penal Code of China_, 29.\n\n\n\n\nDEI DELITTI E DELLE PENE.\n\nBY THE\n\nMARQUIS CESARE BECCARIA.\n\n_TRANSLATED._\n\n \u2018In rebus quibuscumque difficilioribus non expectandum ut quis\n simul et serat et metat, sed pr\u00e6paratione opus est, ut per\n gradus maturescant.\u2019\u2014BACON.\n\n\n\n\n_TO THE READER._\n\n\nSome remnants of the laws of an ancient conquering people, which a\nprince who reigned in Constantinople some 1,200 years ago caused to\nbe compiled, mixed up afterwards with Lombard rites and packed in the\nmiscellaneous volumes of private and obscure commentators\u2014these are what\nform that set of traditional opinions which from a great part of Europe\nreceive nevertheless the name of laws; and to this day it is a fact,\nas disastrous as it is common, that some opinion of Carpzovius, some\nold custom pointed out by Clarus, or some form of torture suggested in\nterms of complacent ferocity by Farinaccius, constitute the laws, so\ncarelessly followed by those, who in all trembling ought to exercise\ntheir government over the lives and fortunes of men. These laws, the\ndregs of the most barbarous ages, are examined in this book in so far as\nregards criminal jurisprudence, and I have dared to expose their faults\nto the directors of the public happiness in a style which may keep at a\ndistance the unenlightened and intolerant multitude. The spirit of frank\ninquiry after truth, of freedom from commonplace opinions, in which this\nbook is written, is a result of the mild and enlightened Government under\nwhich the Author lives. The great monarchs, the benefactors of humanity,\nwho are now our rulers, love the truths expounded, with force but without\nfanaticism, by the obscure philosopher, who is only roused to indignation\nby the excesses of tyranny, but is restrained by reason; and existing\nabuses, for whosoever well studies all the circumstances, are the satire\nand reproach of past ages, and by no means of the present age or of its\nlawgivers.\n\nWhoever, therefore, shall wish to honour me with his criticisms, I\nwould have begin with a thorough comprehension of the purpose of my\nwork\u2014a purpose which, so far from diminishing legitimate authority,\nwill serve to increase it, if opinion can effect more over men\u2019s minds\nthan force, and if the mildness and humanity of the government shall\njustify it in the eyes of all men. The ill-conceived criticisms that have\nbeen published against this book are founded on confused notions, and\ncompel me to interrupt for a moment the arguments I was addressing to my\nenlightened readers, in order to close once for all every door against\nthe misapprehensions of timid bigotry or against the calumnies of malice\nand envy.\n\nThere are three sources of the moral and political principles which\ngovern mankind, namely, revelation, natural law, and social conventions.\nWith regard to their principal object there is no comparison between\nthe first and the other two, but they all resemble one another in\nthis, that they all three conduce to the happiness of this present\nmortal life. To consider the different relations of social conventions\nis not to exclude those of revelation and natural law; rather it is\nthe thousandfold changes which revelation and natural law, divine and\nimmutable though they be, have undergone in the depraved mind of man, by\nhis own fault, owing to false religions and arbitrary notions of virtue\nand vice, that make it appear necessary to examine, apart from all other\nconsiderations, the result of purely human conventions, expressed or\nimplied, for the public need and welfare: this being an idea in which\nevery sect and every moral system must necessarily agree; and it will\nalways be a laudable endeavour, which seeks to constrain the headstrong\nand unbelieving to conform to the principles that induce men to live\ntogether in society. There are, then, three distinct kinds of virtue and\nvice\u2014the religious, the natural, and the political. These three kinds\nought never to conflict, although all the consequences and duties that\nflow from any one of them do not necessarily flow from the others. The\nnatural law does not require all that revelation requires, nor does the\npurely social law require all that natural law requires; but it is most\nimportant to distinguish the consequences of the conventional law\u2014that\nis, of the express or tacit agreements among men\u2014from the consequences\nof the natural law or of revelation, because therein lies the limit of\nthat power, which can rightly be exercised between man and man without\na special mandate from the Supreme Being. Consequently the idea of\npolitical virtue may, without any slur upon it, be said to be variable;\nthat of natural virtue would be always clear and manifest, were it not\nobscured by the stupidity or the passions of men; whilst the idea of\nreligious virtue remains ever one and the same, because revealed directly\nfrom God and by Him preserved.\n\nIt would, therefore, be a mistake to ascribe to one, who only discusses\nsocial conventions and their consequences, principles contrary either to\nnatural law or to revelation, for the reason that he does not discuss\nthem. It would be a mistake, when he speaks of a state of war as anterior\nto a state of society, to understand it in the sense of Hobbes, as\nmeaning that no obligation nor duty is prior to the existence of society,\ninstead of understanding it as a fact due to the corruption of human\nnature and the want of any expressed sanction. It would be a mistake\nto impute it as a fault to a writer who is considering the results of\nthe social compact that he does not admit them as pre-existent to the\nformation of the compact itself.\n\nDivine justice and natural justice are in their essence immutable and\nconstant, because the relation between similar things is always the\nsame; but human or political justice, being nothing more than a relation\nbetween a given action and a given state of society, may vary according\nas such action becomes necessary or useful to society; nor is such\njustice easily discernible, save by one who analyses the complex and very\nchangeable relations of civil combinations. When once these principles,\nessentially distinct, become confused, there is no more hope of sound\nreasoning about public matters. It appertains to the theologian to fix\nthe boundaries between the just and the unjust, in so far as regards the\nintrinsic goodness or wickedness of an act; to fix the relations between\nthe politically just and unjust appertains to the publicist; nor can the\none object cause any detriment to the other, when it is obvious how the\nvirtue that is purely political ought to give place to that immutable\nvirtue which emanates from God.\n\nWhoever, then, I repeat, will honour me with his criticisms, let him not\nbegin by supposing me to advocate principles destructive of virtue or\nreligion, seeing that I have shown that such are not my principles; and\ninstead of his proving me to be an infidel or a rebel, let him contrive\nto find me a bad reasoner or a shortsighted politician; but let him not\ntremble at every proposition on behalf of the interests of humanity; let\nhim convince me either of the inutility or of the possible political\nmischief of my principles; let him prove to me the advantage of received\npractices. I have given a public testimony of my religion and of my\nsubmission to my sovereign in my reply to the Notes and Observations; to\nreply to other writings of a similar nature would be superfluous; but\nwhoever will write with that grace which becomes honest men, and with\nthat knowledge which shall relieve me from the proof of first principles,\nof what character soever, he shall find in me not so much a man who is\neager to reply as a peaceable lover of the truth.\n\n\n\n\nCHAPTER I.\n\nINTRODUCTION.\n\n\nMen for the most part leave the regulation of their chief concerns to\nthe prudence of the moment, or to the discretion of those whose interest\nit is to oppose the wisest laws; such laws, namely, as naturally help\nto diffuse the benefits of life, and check that tendency they have to\naccumulate in the hands of a few, which ranges on one side the extreme\nof power and happiness, and on the other all that is weak and wretched.\nIt is only, therefore, after having passed through a thousand errors in\nmatters that most nearly touch their lives and liberties, only after\nweariness of evils that have been suffered to reach a climax, that men\nare induced to seek a remedy for the abuses which oppress them, and to\nrecognise the clearest truths, which, precisely on account of their\nsimplicity, escape the notice of ordinary minds, unaccustomed as they\nare to analyse things, and apt to receive their impressions anyhow, from\ntradition rather than from inquiry.\n\nWe shall see, if we open histories, that laws, which are or ought to\nbe covenants between free men, have generally been nothing but the\ninstrument of the passions of some few men, or the result of some\naccidental and temporary necessity. They have never been dictated by an\nunimpassioned student of human nature, able to concentrate the actions\nof a multitude of men to a single point of view, and to consider them\nfrom that point alone\u2014_the greatest happiness divided among the greatest\nnumber_. Happy are those few nations which have not waited for the slow\nmovement of human combinations and changes to cause an approach to better\nthings, after intolerable evils, but have hastened the intermediate steps\nby good laws; and deserving is that philosopher of the gratitude of\nmankind, who had the courage, from the obscurity of his despised study,\nto scatter abroad among the people the first seeds, so long fruitless, of\nuseful truths.\n\nThe knowledge of the true relations between a sovereign and his subjects,\nand of those between different nations; the revival of commerce by the\nlight of philosophical truths, diffused by printing; and the silent\ninternational war of industry, the most humane and the most worthy of\nrational men\u2014these are the fruits which we owe to the enlightenment of\nthis century. But how few have examined and combated the cruelty of\npunishments, and the irregularities of criminal procedures, a part of\nlegislation so elementary and yet so neglected in almost the whole of\nEurope; and how few have sought, by a return to first principles, to\ndissipate the mistakes accumulated by many centuries, or to mitigate,\nwith at least that force which belongs only to ascertained truths, the\nexcessive caprice of ill-directed power, which has presented up to this\ntime but one long example of lawful and cold-blooded atrocity! And yet\nthe groans of the weak, sacrificed to the cruelty of the ignorant or\nto the indolence of the rich; the barbarous tortures, multiplied with\na severity as useless as it is prodigal, for crimes either not proved\nor quite chimerical; the disgusting horrors of a prison, enhanced\nby that which is the cruellest executioner of the miserable\u2014namely,\nuncertainty;\u2014these ought to startle those rulers whose function it is to\nguide the opinion of men\u2019s minds.\n\nThe immortal President, Montesquieu, has treated cursorily of this\nmatter; and truth, which is indivisible, has forced me to follow the\nluminous footsteps of this great man; but thinking men, for whom I write,\nwill be able to distinguish my steps from his. Happy shall I esteem\nmyself if, like him, I shall succeed in obtaining the secret gratitude\nof the unknown and peaceable followers of reason, and if I shall inspire\nthem with that pleasing thrill of emotion with which sensitive minds\nrespond to the advocate of the interests of humanity.\n\nTo examine and distinguish all the different sorts of crimes and the\nmanner of punishing them would now be our natural task, were it not that\ntheir nature, which varies with the different circumstances of times and\nplaces, would compel us to enter upon too vast and wearisome a mass of\ndetail. But it will suffice to indicate the most general principles and\nthe most pernicious and common errors, in order to undeceive no less\nthose who, from a mistaken love of liberty, would introduce anarchy,\nthan those who would be glad to reduce their fellow-men to the uniform\nregularity of a convent.\n\nWhat will be the penalty suitable for such and such crimes?\n\nIs death a penalty really _useful and necessary_ for the security and\ngood order of society?\n\nAre torture and torments _just_, and do they attain the _end_ which the\nlaw aims at?\n\nWhat is the best way of preventing crimes?\n\nAre the same penalties equally useful in all times?\n\nWhat influence have they on customs?\n\nThese problems deserve to be solved with such geometrical precision\nas shall suffice to prevail over the clouds of sophistication, over\nseductive eloquence, or timid doubt. Had I no other merit than that of\nhaving been the first to make clearer to Italy that which other nations\nhave dared to write and are beginning to practise, I should deem myself\nfortunate; but if, in maintaining the rights of men and of invincible\ntruth, I should contribute to rescue from the spasms and agonies of death\nany unfortunate victim of tyranny or ignorance, both so equally fatal,\nthe blessings and tears of a single innocent man in the transports of his\njoy would console me for the contempt of mankind.\n\n\n\n\nCHAPTER II.\n\nTHE ORIGIN OF PUNISHMENTS\u2014THE RIGHT OF PUNISHMENT.\n\n\nFrom political morality, unless founded on the immutable sentiments\nof mankind, no lasting advantage can be hoped. Whatever law deviates\nfrom these sentiments will encounter a resistance which will ultimately\nprevail over it, just in the same way as a force, however slight, if\nconstantly applied, will prevail over a violent motion applied to any\nphysical body.\n\nIf we consult the human heart we shall therein discover the fundamental\nprinciples of the real right of the sovereign to punish crimes.\n\nNo man has gratuitously parted with a portion of his own liberty with a\nview to the public good; that is a chimera which only exists in romances.\nEach one of us would wish, if it were possible, that the covenants which\nbind others should not bind himself. There is no man but makes himself\nthe central object of all the combinations of the globe.\n\nThe multiplication of the human race, slight in the abstract, but far\nin excess of the means afforded by nature, barren and deserted as it\noriginally was, for the satisfaction of men\u2019s ever increasing wants,\ncaused the first savages to associate together. The first unions\nnecessarily led to others to oppose them, and so the state of war passed\nfrom individuals to nations.\n\nLaws are the conditions under which men, leading independent and isolated\nlives, joined together in society, when tired of living in a perpetual\nstate of war, and of enjoying a liberty which the uncertainty of its\ntenure rendered useless. Of this liberty they voluntarily sacrificed\na part, in order to enjoy the remainder in security and quiet. The\nsum-total of all these portions of liberty, sacrificed for the good of\neach individually, constitutes the sovereignty of a nation, and the\nsovereign is the lawful trustee and administrator of these portions.\nBut, besides forming this trust-fund, or deposit, it was necessary to\nprotect it from the encroachments of individuals, whose aim it ever\nis not only to recover from the fund their own deposit, but to avail\nthemselves of that contributed by others. \u2018Sensible motives,\u2019 were\ntherefore wanted to divert the despotic will of the individual from\nre-plunging into their primitive chaos the laws of society. Such motives\nwere found in punishments, established against transgressors of the\nlaws; and I call them _sensible_ motives, because experience has shown\nthat the majority of men adopt no fixed rules of conduct, nor avoid that\nuniversal principle of dissolution, observable alike in the moral as in\nthe physical world, save by reason of motives which directly strike the\nsenses and constantly present themselves to the mind, counterbalancing\nthe strong impressions of private passions, opposed as they are to the\ngeneral welfare; not eloquence, nor declamations, nor the most sublime\ntruths have ever sufficed to curb the passions for any length of time,\nwhen excited by the lively force of present objects.\n\nAs it, then, was necessity which constrained men to yield a part of\ntheir individual liberty, it is certain that each would only place in\nthe general deposit the least possible portion\u2014only so much, that is,\nas would suffice to induce others to defend it. The aggregate of these\nleast possible portions constitutes the right of punishment; all that\nis beyond this is an abuse and not justice, a fact but not a right.[64]\nPunishments which exceed what is necessary to preserve the deposit\nof the public safety are in their nature unjust; and the more just\npunishments are, the more sacred and inviolable is personal security, and\nthe greater the liberty that the sovereign preserves for his subjects.\n\n\n\n\nCHAPTER III.\n\nCONSEQUENCES.\n\n\nThe first consequence of these principles is, that the laws alone can\ndecree punishments for crimes, and this authority can only rest with\nthe legislator, who represents collective society as united by a social\ncontract. No magistrate (who is part of society) can justly inflict\npunishments upon another member of the same society. But since a\npunishment that exceeds the legally fixed limit is the lawful punishment\n_plus_ another one, a magistrate can, under no pretext of zeal or the\npublic good, add to the penalty already decreed against a delinquent\ncitizen.\n\nThe second consequence is, that the sovereign, who represents society\nitself, can only form general laws, obligatory on all; he cannot judge\nwhether any one in particular has broken the social compact, for in\nthat case the nation would be divided into two parties, one represented\nby the sovereign, asserting the violation of such contract; the other by\nthe accused, denying the same. Hence the necessity of a third person to\njudge of the fact; in other words, of a magistrate, whose decisions shall\nsimply consist of affirmations or denials of particular facts, and shall\nalso be subject to no appeal.\n\nThe third consequence is this: if it were proved that the severity of\npunishments were simply useless (to say nothing of being directly opposed\nto the public good and to the very object of preventing crimes), even\nin that case it would be contrary not only to those beneficent virtues\nthat flow from an enlightened reason, which prefers to rule over happy\nhuman beings than over a flock of slaves, the constant victims of timid\ncruelty, but it would be also contrary to justice and to the nature of\nthe social contract itself.\n\n\n\n\nCHAPTER IV.\n\nINTERPRETATION OF THE LAWS.\n\n\nThere is also a fourth consequence of the above principles: that the\nright to interpret penal laws cannot possibly rest with the criminal\njudges, for the very reason that they are not legislators. The judges\nhave not received the laws from our ancestors as a family tradition, as\na legacy that only left to posterity the duty of obeying them, but they\nreceive them from living society, or from the sovereign that represents\nit and is the lawful trustee of the actual result of men\u2019s collective\nwills; they receive them, not as obligations arising from an ancient\noath[65] (null, because it bound wills not then in existence, and\niniquitous, because it reduced men from a state of society to that of\na flock), but as the result of the tacit or expressed oath made to the\nsovereign by the united wills of living subjects, as chains necessary for\ncurbing and regulating the disorders caused by private interests. This is\nthe natural and real source of the authority of the laws.\n\nWho, then, will be the rightful interpreter of the laws? Will it be the\nsovereign, the trustee of the actual wills of all, or the judge, whose\nsole function it is to examine whether such and such a man has committed\nan illegal act or not?\n\nIn every criminal case a judge ought to form a complete syllogistic\ndeduction, in which the statement of the general law constitutes the\n_major premiss_; the conformity or non-conformity of a particular action\nwith the law, the _minor premiss_; and acquittal or punishment, the\nconclusion. When a judge is obliged, or of his own accord wishes, to make\neven no more than two syllogisms, the door is opened to uncertainty.\n\nNothing is more dangerous than that common axiom, \u2018We must consult the\nspirit of the laws.\u2019 It is like breaking down a dam before the torrent\nof opinions. This truth, which seems a paradox to ordinary minds,\nmore struck as they are by a little present inconvenience than by the\npernicious but remote consequences which flow from a false principle\nenrooted among a people, seems to me to be demonstrated. Our knowledge\nand all our ideas are reciprocally connected together; and the more\ncomplicated they are, the more numerous are the approaches to them, and\nthe points of departure. Every man has his own point of view\u2014a different\none at different times; so that \u2018the spirit of the laws\u2019 would mean\nthe result of good or bad logic on the part of a judge, of an easy or\ndifficult digestion; it would depend now on the violence of his passions,\nnow on the feebleness of the sufferer, on the relationship between the\njudge and the plaintiff, or on all those minute forces which change the\nappearances of everything in the fluctuating mind of man. Hence it is\nthat we see a citizen\u2019s fate change several times in his passage from one\ncourt to another; that we see the lives of wretches at the mercy of the\nfalse reasonings or of the temporary caprice of a judge, who takes as his\nrightful canon of interpretation the vague result of all that confused\nseries of notions which affect his mind. Hence it is that we see the same\ncrimes punished differently by the same court at different times, owing\nto its having consulted, not the constant and fixed voice of the laws,\nbut their unstable and erring interpretations.\n\nNo inconvenience that may arise from a strict observance of the letter\nof penal laws is to be compared with the inconveniences of subjecting\nthem to interpretation. The momentary inconvenience in the former case\ninvolves, indeed, correcting the words of the law which are the cause of\nthe uncertainty, a task both easy and necessary; but the fatal licence of\narguing, the source of so many arbitrary and venal disputes, is thereby\nprevented. When a fixed code of laws, which must be observed to the\nletter, leaves to the judge no further trouble than to inquire into the\nactions of citizens and to decide on their conformity to the written law;\nwhen the standard of just and unjust, which should equally direct the\nactions of the ignorant citizen as of the philosophical one, is not a\nmatter of controversy but of fact; then are people no longer subject to\nthe petty tyrannies of many men, which are all the more cruel by reason\nof the smaller distance that separates the sufferer from the inflictor of\nsuffering, and which are more pernicious than the tyrannies of a single\nman, inasmuch as the despotism of many is only curable by that of one,\nand a despot\u2019s cruelty is proportioned, not to the power he possesses,\nbut to the obstacles he encounters. Under a fixed code of laws citizens\nacquire that consciousness of personal security, which is just, because\nit is the object of social existence, and which is useful, because it\nenables them to calculate exactly the evil consequences of a misdeed. It\nis true they will also acquire a spirit of independence, but not such\na spirit as will seek to shake the laws and prove rebellious against\nthe chief magistrates, except against such of them as have dared to\napply the sacred name of virtue to a spiritless submission to their own\nself-interested and capricious opinions. These principles will displease\nthose who have assumed the right to transfer to their subordinates the\nstrokes of tyranny they themselves have suffered from their superiors. I\npersonally should have everything to fear, if the spirit of tyranny and\nthe spirit of reading ever went together.\n\n\n\n\nCHAPTER V.\n\nOBSCURITY OF THE LAWS.\n\n\nIf the interpretation of laws is an evil, it is clear that their\nobscurity, which necessarily involves interpretation, must be an evil\nalso, and an evil which will be at its worst where the laws are written\nin any other than the vernacular language of a country. For in that case\nthe people, being unable to judge of themselves how it may fare with\ntheir liberty or their limbs, are made dependent on a small class of men;\nand a book, which should be sacred and open to all, becomes, by virtue of\nits language, a private and, so to speak, a family manual.\n\nThe greater the number of those who understand and have in their hands\nthe sacred code of the laws, the fewer will be the crimes committed; for\nit is beyond all doubt that ignorance and uncertainty of punishments lend\nassistance to the eloquence of the passions. Yet what shall we think\nof mankind, when we reflect, that such a condition of the laws is the\ninveterate custom of a large part of cultivated and enlightened Europe?\n\nOne consequence of these last reflections is, that without writing no\nsociety will ever assume a fixed form of government, wherein the power\nshall belong to the social whole, and not to its parts, and wherein the\nlaws, only alterable by the general will, shall not suffer corruption\nin their passage through the crowd of private interests. Experience\nand reason have taught us, that the probability and certainty of human\ntraditions diminish in proportion to their distance from their source. So\nthat if there be no standing memorial of the social contract, how will\nlaws ever resist the inevitable force of time and passion?\n\nFrom this we see how useful is the art of printing, which makes the\npublic, and not a few individuals, the guardians of the sacred laws, and\nwhich has scattered that dark spirit of cabal and intrigue, destined to\ndisappear before knowledge and the sciences, which, however apparently\ndespised, are in reality feared by those that follow in their wake. This\nis the reason that we see in Europe the diminution of those atrocious\ncrimes that afflicted our ancestors and rendered them by turns tyrants\nor slaves. Whoever knows the history of two or three centuries ago and\nof our own, can see that from the lap of luxury and effeminacy have\nsprung the most pleasing of all human virtues, humanity, charity, and the\ntoleration of human errors; he will know what have been the results of\nthat which is so wrongly called \u2018old-fashioned simplicity and honesty.\u2019\nHumanity groaning under implacable superstition; the avarice and ambition\nof a few dyeing with human blood the golden chests and thrones of kings;\nsecret assassinations and public massacres; every noble a tyrant to the\npeople; the ministers of the Gospel truth polluting with blood hands that\nevery day came in contact with the God of mercy\u2014these are not the works\nof this enlightened age, which some, however, call corrupt.\n\n\n\n\nCHAPTER VI.\n\nIMPRISONMENT.\n\n\nAn error, not less common than it is contrary to the object of\nsociety\u2014that is, to the consciousness of personal security\u2014is leaving a\nmagistrate to be the arbitrary executor of the laws, free at his pleasure\nto imprison a citizen, to deprive a personal enemy of his liberty on\nfrivolous pretexts, or to leave a friend unpunished in spite of the\nstrongest proofs of his guilt. Imprisonment is a punishment which, unlike\nevery other, must of necessity precede the declaration of guilt; but\nthis distinctive character does not deprive it of the other essential\nof punishment, namely, that the law alone shall determine the cases\nunder which it shall be merited. It is for the law, therefore, to point\nout the amount of evidence of a crime which shall justify the detention\nof the accused, and his subjection to examination and punishment. For\nsuch detention there may be sufficient proofs in common report, in a\nman\u2019s flight, in a non-judicial confession, or in the confession of\nan accomplice; in a man\u2019s threats against or constant enmity with the\nperson injured; in all the facts of the crime, and similar indications.\nBut these proofs should be determined by the laws, not by the judges,\nwhose decisions, when they are not particular applications of a general\nmaxim in a public code, are always adverse to political liberty. The\nmore that punishments are mitigated, that misery and hunger are banished\nfrom prisons, that pity and mercy are admitted within their iron doors,\nand are set above the inexorable and hardened ministers of justice, the\nslighter will be the evidences of guilt requisite for the legal detention\nof the suspected.\n\nA man accused of a crime, imprisoned and acquitted, ought to bear\nno mark of disgrace. How many Romans, accused of the gravest crimes\nand then found innocent, were reverenced by the people and honoured\nwith magisterial positions! For what reason, then, is the lot of a\nman innocently accused so different in our own times? Because, in the\ncriminal system now in vogue, the idea of force and might is stronger in\nmen\u2019s minds than the idea of justice; because accused and convicted are\nthrown in confusion into the same dungeon; because imprisonment is rather\na man\u2019s punishment than his mere custody; and because the two forces\nwhich should be united are separated from one another, namely, the\ninternal force, which protects the laws, and the external force, which\ndefends the throne and the nation. Were they united, the former, through\nthe common sanction of the laws, would possess in addition a judicial\ncapacity, although independent of that possessed by the supreme judicial\npower; and the glory that accompanies the pomp and ceremony of a military\nbody would remove the infamy, which, like all popular sentiments, is more\nattached to the manner than the thing, as is proved by the fact that\nmilitary prisons are not regarded in public estimation as so disgraceful\nas civil ones. There still remain among our people, in their customs and\nin their laws (always a hundred years, in point of merit, in arrear of\nthe actual enlightenment of a nation), there still remain, I say, the\nsavage impressions and fierce ideas of our ancestors of the North.\n\n\n\n\nCHAPTER VII.\n\nPROOFS AND FORMS OF JUDGMENT.\n\n\nThere is a general theorem which is most useful for calculating the\ncertainty of a fact, as, for instance, the force of the proofs in the\ncase of a given crime:\u2014\n\n1. When the proofs of a fact are dependent one on another\u2014that is to say,\nwhen each single proof rests on the weight of some other\u2014then the more\nnumerous the proofs are, the smaller is the probability of the fact in\nquestion, because the chances of error in the preliminary proofs would\nincrease the probability of error in the succeeding ones.\n\n2. When the proofs of a fact all depend equally on a single one, their\nnumber neither increases nor diminishes the probability of the fact in\nquestion, because their total value resolves itself into that of the\nsingle one on which they depend.\n\n3. When the proofs are independent of each other\u2014that is to say, when\nthey do not derive their value one from the other\u2014then the more numerous\nthe proofs adduced, the greater is the probability of the fact in\nquestion, because the falsity of one proof affects in no way the force of\nanother.\n\nI speak of probability in connection with crimes, which, to deserve\npunishment, ought to be proved. But the paradox is only apparent, if one\nreflects that, strictly speaking, moral certainty is only a probability,\nbut a probability which is called certainty, because every sensible\nperson necessarily assents to it, by a force of habit which arises\nfrom the necessity of acting, and which is prior to all speculation.\nThe certainty requisite for certifying that a man is a criminal is,\ntherefore, the same that determines everyone in the most important\nactions of his life. The proofs of a crime may be divided into \u2018perfect\u2019\nand \u2018imperfect,\u2019 the former being of such a nature as exclude the\npossibility of a man\u2019s innocence, and the latter such as fall short of\nthis certainty. Of the first kind one proof alone is sufficient for\ncondemnation; of the second, or imperfect kind, as many are necessary as\nsuffice to make a single perfect proof; that is to say, when, though each\nproof taken separately does not exclude the possibility of innocence,\nyet their convergence on the same point makes such innocence impossible.\nBut let it be noted that imperfect proofs, from which an accused has it\nin his power to justify himself and declines to do so, become perfect.\nThis moral certainty of proofs, however, is easier to feel than to define\nwith exactitude: for which reason I think that the best law is one which\nattaches to the chief judge assessors, taken by lot, not by selection,\nthere being in this case more safety in the ignorance which judges by\nsentiment than in the knowledge which judges by opinion. Where the laws\nare clear and precise, the function of a judge consists solely in the\ncertification of fact. If for searching out the proofs of a crime ability\nand cleverness are required, and if in the presentation of the result\nclearness and precision are essential, all that is required to judge\nof the result is simple and common good sense, a faculty which is less\nfallacious than the learning of a judge, accustomed as he is to wish to\nfind men guilty and to reduce everything to an artificial system borrowed\nfrom his studies. Happy the nation where the laws are not a science! It\nis a most useful law that everyone shall be judged by his equals, because\nwhere a citizen\u2019s liberty and fortune are at stake those sentiments which\ninequality inspires should have no voice; that feeling of superiority\nwith which the prosperous man regards the unfortunate one, and that\nfeeling of dislike with which an inferior regards his superior, have no\nscope in a judgment by one\u2019s equals. But when the crime in question is an\noffence against a person of a different rank from the accused, then one\nhalf of the judges should be the equals of the accused, the other half\nequals of the plaintiff, that so, every private interest being balanced,\nby which the appearances of things are involuntarily modified, only the\nvoice of the laws and of truth may be heard. It is also in accordance\nwith justice that an accused person should have power up to a certain\npoint of refusing judges whom he may suspect; and if he is allowed the\nexercise of this power for some time without opposition, he will seem\nto condemn himself. Verdicts should be public, and the proofs of guilt\npublic, in order that opinion\u2014which is, perhaps, the only bond of society\nthere is\u2014may place a check on outbursts of force and passion, and that\nthe people may say, \u2018We are not slaves without defence\u2019: a feeling\nwhich both inspires them with courage and is as good as a tribute to a\nsovereign who understands his real interest. I refrain from pointing\nout other details and precautions which require similar regulations.\nI should have said nothing at all, had it been necessary for me to say\neverything.\n\n\n\n\nCHAPTER VIII.\n\nWITNESSES.\n\n\nIt is a great point in every good system of laws to determine exactly\nthe credibility of witnesses and the proofs of guilt Every reasonable\nman\u2014that is, every man with a certain connection between his ideas and\nwith feelings like those of other men\u2014is capable of bearing witness. The\ntrue measure of his credibility is only the interest he has in speaking\nor in not speaking the truth; so that nothing can be more frivolous than\nto reject the evidence of women on the pretext of their feebleness,\nnothing more childish than to apply the results of real death to civil\ndeath as regards the testimony of the condemned, nothing more unmeaning\nthan to insist on the mark of infamy in the infamous when they have no\ninterest in lying.\n\nAmong other abuses of grammar, which have no slight influence on human\naffairs, that one is notable which makes the evidence of a condemned\ncriminal null and void. \u2018He is _dead civilly_\u2019 say gravely the\nperipatetic lawyers, \u2018and a _dead man_ is incapable of any action.\u2019 In\nsupport of this silly metaphor many victims have been sacrificed, and\nit has very often been disputed with all seriousness whether the truth\nshould not yield to judicial formulas. Provided that the testimony of\na condemned criminal does not go to the extent of stopping the course\nof justice, why should not a fitting period be allowed, even after\ncondemnation, both to the extreme wretchedness of the criminal and to the\ninterests of truth, so that, by his adducing fresh matter to alter the\ncomplexion of the fact, he may justify himself or others in a new trial?\nForms and ceremonies are necessary in the administration of justice,\nbecause they leave nothing to the free will of the administrator; because\nthey give the people an idea of a justice which is not tumultuary and\nself-interested, but steadfast and regular; and because men, the slaves\nof habit and imitation, are more influenced by their feelings than by\narguments. But such forms can never without fatal danger be so firmly\nfixed by the laws as to be injurious to truth, which from being either\ntoo simple or two complex needs some external pomp to conciliate the\nignorant populace.\n\nThe credibility, therefore, of a witness must diminish in proportion\nto the hatred, friendship, or close connection between himself and the\naccused. More than one witness is necessary, because, so long as one\naffirms and another denies, nothing is proved, and the right which\neveryone has of being held innocent prevails. The credibility of a\nwitness becomes appreciably less, the greater the atrocity of the\ncrime imputed,[66] or the improbability of the circumstances, as in\ncharges of magic and gratuitously cruel actions. It is more likely, as\nregards the former accusation, that many men should lie than that such\nan accusation should be true, because it is easier for many men to be\nunited in an ignorant mistake or in persecuting hatred than for one man\nto exercise a power which God either has not conferred or has taken away\nfrom every created being. The same reasoning holds good also of the\nsecond accusation, for man is only cruel in proportion to his interest\nto be so, to his hatred or to his fear. Properly speaking, there is no\nsuperfluous feeling in human nature, every feeling being always in strict\naccordance with the impressions made upon the senses. In the same way the\ncredibility of a witness may sometimes be lessened by the fact of his\nbeing a member of some secret society, whose purposes and principles are\neither not well understood or differ from those of general acceptance;\nfor such a man has not only his own passions but those of others besides.\n\nLastly, a witness\u2019s evidence is almost null when spoken words are\nconstrued into a crime. For the tone, the gesture, all that precedes or\nfollows the different ideas attached by men to the same words, so alter\nand modify a man\u2019s utterances, that it is almost impossible to repeat\nthem exactly as they were spoken. Moreover, actions of a violent and\nunusual character, such as real crimes are, leave their traces in the\nnumberless circumstances and effects that flow from them; and of such\nactions the greater the number of the circumstances adduced in proof, the\nmore numerous are the chances for the accused to clear himself. But words\nonly remain in the memory of their hearers, and memory is for the most\npart unfaithful and often deceitful. It is on that account ever so much\nmore easy to fix a calumny upon a man\u2019s words than upon his actions.\n\n\n\n\nCHAPTER IX.\n\nSECRET ACCUSATIONS.\n\n\nPalpable but consecrated abuses, which in many nations are the necessary\nresults of a weak political constitution, are Secret Accusations. For\nthey render men false and reserved, and whoever may suspect that he sees\nin his neighbour an informer will see in him an enemy. Men then come to\nmask their real feelings, and by the habit of hiding them from others\nthey at last get to hide them from themselves. Unhappy they who have come\nto that; who, without clear and fixed principles to guide them, wander\nlost and confused in the vast sea of opinions, ever busied in saving\nthemselves from the horrors that oppress them, with the present moment\never embittered by the uncertainty of the future, and without the lasting\npleasures of quiet and security, devouring in unseemly haste those few\npleasures, which occur at rare intervals in their melancholy lives and\nscarcely console them for the fact of having lived! Is it of such men we\ncan hope to make intrepid soldiers, defenders of their country and crown?\nIs it among such men we shall find incorrupt magistrates, able with their\nfree and patriotic eloquence to sustain and develop the true interests\nof their sovereign, ready, with the tribute they bear, to carry to the\nthrone the love and blessings of all classes of men, and thence to bring\nback to palaces and cottages alike peace and security, and that active\nhope of ameliorating their lot which is so useful a leaven, nay, which is\nthe life of States?\n\nWho can protect himself from calumny, when it is armed by the strongest\nshield of tyranny, secrecy? What sort of government can that ever be\nwhere in every subject a ruler suspects an enemy, and is obliged for the\nsake of the general tranquillity to rob each individual of its possession?\n\nWhat are the pretexts by which secret accusations and punishments are\njustified? Are they the public welfare, the security and maintenance of\nthe form of government? But how strange a constitution is that, where\nhe who has force on his side, and opinion, which is even stronger than\nforce, is afraid of every citizen! Is then the indemnity of the accuser\nthe excuse? In that case the laws do not sufficiently defend him; and\nshall there be subjects stronger than their sovereign? Or is it to save\nthe informer from infamy? What! secret calumny be fair and lawful, and an\nopen one deserving of punishment! Is it, then, the nature of the crime?\nIf indifferent actions, or even useful actions, are called crimes, then\nof course accusations and trials can never be secret enough. But how\ncan there be crimes, that is, public injuries, unless the publicity of\nthis example, by a public trial, be at the same time the interest of\nall men? I respect every government, and speak of none in particular.\nCircumstances are sometimes such that to remove an evil may seem utter\nruin when it is inherent in a national system. But had I to dictate new\nlaws in any forgotten corner of the universe, my hand would tremble and\nall posterity would rise before my eyes before I would authorise such a\ncustom as that of secret accusations.\n\nIt has already been remarked by Montesquieu that public accusations are\nmore suited to republics, where the public good ought to be the citizens\u2019\nfirst passion, than to monarchies, where such a sentiment is very feeble,\nowing to the nature of the government itself, and where the appointment\nof officers to accuse transgressors of the law in the name of the public\nis a most excellent institution. But every government, be it republican\nor monarchical, ought to inflict upon a false accuser the same punishment\nwhich, had the accusation been true, would have fallen upon the accused.\n\n\n\n\nCHAPTER X.\n\nSUGGESTIVE INTERROGATIONS\u2014DEPOSITIONS.\n\n\nOur laws prohibit _suggestive_ (leading) questions in a lawsuit:\nthose, that is (according to the doctors of law), which, instead of\napplying, as they should do, to the _genus_ in the circumstances of\na crime, refer to the _species_; those, in other words, which from\ntheir immediate connection with a crime suggest to the accused a direct\nanswer. Questions, according to the criminal lawyers, ought, so to speak,\n\u2018to envelop the main fact spirally and never to attack it in a direct\nline.\u2019 The reasons for this method are, either that an answer may not\nbe _suggested_ to the accused which may place him face to face with\nthe charge against him, or perhaps because it seems unnatural for him\ndirectly to criminate himself. But, whichever of these reasons it may be,\nthe contradiction is remarkable between the existence of such a custom\nand the legal authorisation of torture; for what interrogatory can be\nmore _suggestive_ than pain? The former reason applies to the question of\ntorture, because pain will _suggest_ to a strong man obstinate silence,\nin order that he may exchange the greater penalty for the lesser, whilst\nit will _suggest_ to a weak man confession, in order that he may escape\nfrom present torment, which has more influence over him than pain which\nis to come. The other reason evidently applies too, for if a _special_\nquestion leads a man to confess against natural right, the agonies of\ntorture will more easily do the same. But men are more governed by the\ndifference of names than by that of things.\n\nFinally, a man who, when examined, persists in an obstinate refusal to\nanswer, deserves a punishment fixed by the laws, and one of the heaviest\nthey can inflict, that men may not in this way escape the necessary\nexample they owe to the public. But this punishment is not necessary when\nit is beyond all doubt that such a person has committed such a crime,\nquestions being useless, in the same way that confession is, when other\nproofs sufficiently demonstrate guilt And this last case is the most\nusual, for experience proves that in the majority of trials the accused\nare wont to plead \u2018Not guilty.\u2019\n\n\n\n\nCHAPTER XI.\n\nOATHS.\n\n\nA contradiction between the laws and the natural feelings of mankind\narises from the oaths which are required of an accused, to the effect\nthat he will be a truthful man when it is his greatest interest to\nbe false; as if a man could really swear to contribute to his own\ndestruction, or as if religion would not be silent with most men when\ntheir interest spoke on the other side. The experience of all ages has\nshown that men have abused religion more than any other of the precious\ngifts of heaven; and for what reason should criminals respect it, when\nmen esteemed as the wisest have often violated it? Too weak, because too\nfar removed from the senses, are for the mass of people the motives\nwhich religion opposes to the tumult of fear and the love of life.\nThe affairs of heaven are conducted by laws absolutely different from\nthose which govern human affairs; so why compromise those by these?\nWhy place men in the terrible dilemma of either sinning against God or\nconcurring in their own ruin? The law, in fact, which enforces such an\noath commands a man either to be a bad Christian or to be a martyr. The\noath becomes gradually a mere formality, thus destroying the force of\nreligious feelings, which for the majority of men are the only pledge of\ntheir honesty. How useless oaths are has been shown by experience, for\nevery judge will bear me out when I say that no oath has ever yet made\nany criminal speak the truth; and the same thing is shown by reason,\nwhich declares all laws to be useless, and consequently injurious, which\nare opposed to the natural sentiments of man. Such laws incur the same\nfate as dams placed directly in the main stream of a river: either they\nare immediately thrown down and overwhelmed, or a whirlpool formed by\nthemselves corrodes and undermines them imperceptibly.\n\n\n\n\nCHAPTER XII.\n\nTORTURE.\n\n\nA cruelty consecrated among most nations by custom is the torture of the\naccused during his trial, on the pretext of compelling him to confess his\ncrime, of clearing up contradictions in his statements, of discovering\nhis accomplices, of purging him in some metaphysical and incomprehensible\nway from infamy, or finally of finding out other crimes of which he may\npossibly be guilty, but of which he is not accused.\n\nA man cannot be called _guilty_ before sentence has been passed on him by\na judge, nor can society deprive him of its protection till it has been\ndecided that he has broken the condition on which it was granted. What,\nthen, is that right but one of mere might by which a judge is empowered\nto inflict a punishment on a citizen whilst his guilt or innocence are\nstill undetermined? The following dilemma is no new one: either the crime\nis certain or uncertain; if certain, no other punishment is suitable for\nit than that affixed to it by law; and torture is useless, for the same\nreason that the criminal\u2019s confession is useless. If it is uncertain, it\nis wrong to torture an innocent person, such as the law adjudges him to\nbe, whose crimes are not yet proved.\n\nWhat is the political object of punishments? The intimidation of other\nmen. But what shall we say of the secret and private tortures which the\ntyranny of custom exercises alike upon the guilty and the innocent? It\nis important, indeed, that no open crime shall pass unpunished; but the\npublic exposure of a criminal whose crime was hidden in darkness is\nutterly useless. An evil that has been done and cannot be undone can\nonly be punished by civil society in so far as it may affect others with\nthe hope of impunity. If it be true that there are a greater number\nof men who either from fear or virtue respect the laws than of those\nwho transgress them, the risk of torturing an innocent man should be\nestimated according to the probability that any man will have been more\nlikely, other things being equal, to have respected than to have despised\nthe laws.\n\nBut I say in addition: it is to seek to confound all the relations of\nthings to require a man to be at the same time accuser and accused, to\nmake pain the crucible of truth, as if the test of it lay in the muscles\nand sinews of an unfortunate wretch. The law which ordains the use of\ntorture is a law which says to men: \u2018Resist pain; and if Nature has\ncreated in you an inextinguishable self-love, if she has given you an\ninalienable right of self-defence, I create in you a totally contrary\naffection, namely, an heroic self-hatred, and I command you to accuse\nyourselves, and to speak the truth between the laceration of your muscles\nand the dislocation of your bones.\u2019\n\nThis infamous crucible of truth is a still-existing monument of that\nprimitive and savage legal system, which called trials by fire and\nboiling water, or the accidental decisions of combat, _judgments of\nGod_, as if the rings of the eternal chain in the control of the First\nCause must at every moment be disarranged and put out for the petty\ninstitutions of mankind. The only difference between torture and the\ntrial by fire and water is, that the result of the former seems to depend\non the will of the accused, and that of the other two on a fact which is\npurely physical and extrinsic to the sufferer; but the difference is only\napparent, not real. The avowal of truth under tortures and agonies is as\nlittle free as was in those times the prevention without fraud of the\nusual effects of fire and boiling water. Every act of our will is ever\nproportioned to the force of the sensible impression which causes it, and\nthe sensibility of every man is limited. Hence the impression produced by\npain may be so intense as to occupy a man\u2019s entire sensibility and leave\nhim no other liberty than the choice of the shortest way of escape, for\nthe present moment, from his penalty. Under such circumstances the answer\nof the accused is as inevitable as the impressions produced by fire\nand water; and the innocent man who is sensitive will declare himself\nguilty, when by so doing he hopes to bring his agonies to an end. All\nthe difference between guilt and innocence is lost by virtue of the very\nmeans which they profess to employ for its discovery.\n\nTorture is a certain method for the acquittal of robust villains and for\nthe condemnation of innocent but feeble men. See the fatal drawbacks of\nthis pretended test of truth\u2014a test, indeed, that is worthy of cannibals;\na test which the Romans, barbarous as they too were in many respects,\nreserved for slaves alone, the victims of their fierce and too highly\nlauded virtue. Of two men, equally innocent or equally guilty, the\nrobust and courageous will be acquitted, the weak and the timid will be\ncondemned, by virtue of the following exact train of reasoning on the\npart of the judge: \u2018I as judge had to find you guilty of such and such\na crime; you, A B, have by your physical strength been able to resist\npain, and therefore I acquit you; you, C D, in your weakness have yielded\nto it; therefore I condemn you. I feel that a confession extorted amid\ntorments can have no force, but I will torture you afresh unless you\ncorroborate what you have now confessed.\u2019\n\nThe result, then, of torture is a matter of temperament, of calculation,\nwhich varies with each man according to his strength and sensibility;\nso that by this method a mathematician might solve better than a judge\nthis problem: \u2018Given the muscular force and the nervous sensibility of an\ninnocent man, to find the degree of pain which will cause him to plead\nguilty to a given crime.\u2019\n\nThe object of examining an accused man is the ascertainment of truth.\nBut if this truth is difficult to discover from a man\u2019s air, demeanour,\nor countenance, even when he is quiet, much more difficult will it be\nto discover from a man upon whose face all the signs, whereby most men,\nsometimes in spite of themselves, express the truth, are distorted\nby pain. Every violent action confuses and causes to disappear those\ntrifling differences between objects, by which one may sometimes\ndistinguish the true from the false.\n\nA strange consequence that flows naturally from the use of torture is,\nthat an innocent man is thereby placed in a worse condition than a guilty\none, because if both are tortured the former has every alternative\nagainst him. For either he confesses the crime and is condemned, or he\nis declared innocent, having suffered an undeserved punishment. But the\nguilty man has one chance in his favour, since, if he resist the torture\nfirmly, and is acquitted in consequence, he has exchanged a greater\npenalty for a smaller one. Therefore the innocent man can only lose, the\nguilty may gain, by torture.\n\nThis truth is, in fact, felt, though in a confused way, by the very\npersons who place themselves farthest from it. For a confession made\nunder torture is of no avail unless it be confirmed by an oath made\nafter it; and yet, should the criminal not confirm his confession, he is\ntortured afresh. Some doctors of law and some nations only allow this\ninfamous begging of the question to be employed three times; whilst other\nnations and other doctors leave it to the discretion of the judge.\n\nIt were superfluous to enlighten the matter more thoroughly by mentioning\nthe numberless instances of innocent persons who have confessed\nthemselves guilty from the agonies of torture; no nation, no age, but\ncan mention its own; but men neither change their natures nor draw\nconclusions. There is no man who has ever raised his ideas beyond the\ncommon needs of life but runs occasionally towards Nature, who with\nsecret and confused voice calls him to herself; but custom, that tyrant\nof human minds, draws him back and frightens him.\n\nThe second pretext for torture is its application to supposed criminals\nwho contradict themselves under examination, as if the fear of the\npunishment, the uncertainty of the sentence, the legal pageantry, the\nmajesty of the judge, the state of ignorance that is common alike to\ninnocent and guilty, were not enough to plunge into self-contradiction\nboth the innocent man who is afraid, and the guilty man who seeks to\nshield himself; as if contradictions, common enough when men are at their\nease, were not likely to be multiplied, when the mind is perturbed and\nwholly absorbed in the thought of seeking safety from imminent peril.\n\nTorture, again, is employed to discover if a criminal is guilty of other\ncrimes besides those with which he is charged. It is as if this argument\nwere employed: \u2018Because you are guilty of one crime you may be guilty of\na hundred others. This doubt weighs upon me: I wish to ascertain about it\nby my test of truth: the laws torture you because you are guilty, because\nyou may be guilty, because I mean you to be guilty.\u2019\n\nTorture, again, is inflicted upon an accused man in order to discover\nhis accomplices in crime. But if it is proved that it is not a fitting\nmethod for the discovery of truth, how will it serve to disclose\naccomplices, which is part of the truth to be discovered? As if a man\nwho accuses himself would not more readily accuse others. And is it just\nto torment men for the crimes of others? Will not the accomplices be\ndisclosed from the examination of the witnesses and of the accused, from\nthe proofs and whole circumstances of the crime; in sum, from all those\nvery means which should serve to convict the accused himself of guilt?\nAccomplices generally fly immediately after the capture of a companion;\nthe uncertainty of their lot of itself condemns them to exile, and\nfrees the country from the danger of fresh offences from them; whilst\nthe punishment of the criminal who is caught attains its precise object,\nnamely, the averting of other men by terror from a similar crime.\n\nAnother ridiculous reason for torture is the purgation from infamy; that\nis to say, a man judged infamous by the laws must confirm his testimony\nby the dislocation of his bones. This abuse ought not to be tolerated in\nthe eighteenth century. It is believed that pain, which is a physical\nsensation, purges from infamy, which is merely a moral condition. Is\npain, then, a crucible, and infamy a mixed impure substance? But infamy\nis a sentiment, subject neither to laws nor to reason, but to common\nopinion. Torture itself causes real infamy to the victim of it. So the\nresult is, that by this method infamy will be taken away by the very fact\nof its infliction!\n\nIt is not difficult to go back to the origin of this ridiculous law,\nbecause the absurdities themselves that a whole nation adopts have always\nsome connection with other common ideas which the same nation respects.\nThe custom seems to have been derived from religious and spiritual ideas,\nwhich have so great an influence on the thoughts of men, on nations,\nand on generations. An infallible dogma assures us, that the stains\ncontracted by human weakness and undeserving of the eternal anger of\nthe Supreme Being must be purged by an incomprehensible fire. Now,\ninfamy is a civil stain; and as pain and fire take away spiritual and\nincorporeal stains, why should not the agonies of torture take away the\ncivil stain of infamy? I believe that the confession of a criminal, which\nsome courts insist on as an essential requisite for condemnation, has\na similar origin;\u2014because in the mysterious tribunal of repentance the\nconfession of sins is an essential part of the sacrament. This is the way\nmen abuse the surest lights of revelation; and as these are the only ones\nwhich exist in times of ignorance, it is to them on all occasions that\ndocile humanity turns, making of them the most absurd and far-fetched\napplications.\n\nThese truths were recognised by the Roman legislators, for they inflicted\ntorture only upon slaves, who in law had no personality. They have\nbeen adopted by England, a nation, the glory of whose literature, the\nsuperiority of whose commerce and wealth, and consequently of whose\npower, and the examples of whose virtue and courage leave us no doubt as\nto the goodness of her laws. Torture has also been abolished in Sweden;\nit has been abolished by one of the wisest monarchs of Europe, who,\ntaking philosophy with him to the throne, has made himself the friend\nand legislator of his subjects, rendering them equal and free in their\ndependence on the laws, the sole kind of equality and liberty that\nreasonable men can ask for in the present condition of things. Nor has\ntorture been deemed necessary in the laws which regulate armies, composed\nthough they are for the most part of the dregs of different countries,\nand for that reason more than any other class of men the more likely\nto require it. A strange thing, for whoever forgets the power of the\ntyranny exercised by custom, that pacific laws should be obliged to learn\nfrom minds hardened to massacre and bloodshed the most humane method of\nconducting trials.\n\n\n\n\nCHAPTER XIII.\n\nPROSECUTIONS AND PRESCRIPTIONS.\n\n\nAs soon as the proofs of a crime and its reality are fully certified,\nthe criminal must be allowed time and opportunity for his defence;\nbut the time allowed must be so short as not to interfere with the\nspeediness of his punishment, which, as we have seen, is one of the\nprincipal restraints from crime. A false philanthropy seems opposed to\nthis shortness of time; but all doubt will vanish, on reflection that the\nmore defective any system of law is, the greater are the dangers to which\ninnocence is exposed.\n\nBut the laws should fix a certain space of time both for the defence of\nthe accused and for the discovery of proofs against him. It would place\nthe judge in the position of a legislator were it his duty to fix the\ntime necessary for the latter. In the same way those atrocious crimes,\nwhose memory tarries long in men\u2019s minds, deserve, when once proved, no\nprescription in favour of a criminal who has fled from his country; but\nlesser and obscure crimes should be allowed a certain prescription, which\nmay remove a man\u2019s uncertainty concerning his fate, because the obscurity\nin which for a long time his crimes have been involved deducts from the\nbad example of his impunity, and the possibility of reform meantime\nremains to him. It is enough to indicate these principles, because I\ncannot fix a precise limit of time, except for a given system of laws and\nin given social circumstances. I will only add that, the advantage of\nmoderate penalties in a nation being proved, the laws which shorten or\nlengthen, according to the gravity of crimes, the term of prescription\nor of proofs, thus making of prison itself or of voluntary exile a part\nof the punishment, will supply an easy classification of a few mild\npunishments for a very large number of crimes.\n\nBut these periods of time will not be lengthened in exact proportion to\nthe atrocity of crimes, since the probability of a crime is in inverse\nratio to its atrocity. It will, then, be necessary to shorten the period\nfor inquiry and to increase that of prescription; which may appear to\ncontradict what I said before, namely, that it is possible to inflict\nequal penalties on unequal crimes, by counting as a penalty that period\nof imprisonment or of prescription which precedes the verdict. To explain\nto the reader my idea: I distinguish two kinds of crimes\u2014the first,\natrocious crimes, beginning with homicide and including all the excessive\nforms of wickedness; the second comprising less considerable crimes. This\ndistinction is founded in human nature. Personal security is a natural\nright, the security of property a social one. The number of motives\nwhich impel men to violate their natural affections is far smaller than\nthose which impel them, by their natural longing for happiness, to\nviolate a right which they do not find written in their hearts but only\nin the conventions of society. The very great difference between the\nprobability of these two kinds of crime respectively makes it necessary\nthat they should be ruled by different principles. In cases of the more\natrocious crimes, because they are more uncommon, the time for inquiry\nought to be so much the less as the probability of the innocence of the\naccused is greater; and the time of prescription ought to be longer,\nas on an ultimate definite sentence of guilt or innocence depends the\ndestruction of the hope of impunity, the harm of which is proportioned\nto the atrocity of the crime. But in cases of lesser criminality, where\nthe presumption in favour of a man\u2019s innocence is less, the time for\ninquiry should be longer; and as the harm of impunity is less, the\ntime of prescription should be shorter. But such a division of crimes\nought, indeed, not to be admitted, if the danger of impunity decreased\nexactly in proportion to the greater probability of the crime. One should\nremember that an accused man, whose guilt or innocence is uncertain, may,\nthough acquitted for lack of proofs, be subjected for the same crime to\na fresh imprisonment and inquiry, in the event of fresh legal proofs\nrising up against him, so long as the time of prescription accorded by\nthe laws has not been past. Such at least is the compromise that I think\nbest fitted to preserve both the liberty and the security of the subject,\nit being only too easy so to favour the one at the expense of the other,\nthat these two blessings, the inalienable and equal patrimony of every\ncitizen, are left unprotected and undefended, the one from declared or\nveiled despotism, the other from the turbulence of civil anarchy.\n\nThere are some crimes which are at the same time of common occurrence\nand of difficult proof. In them the difficulty of proof is equivalent\nto a probability of innocence; and the harm of their impunity being so\nmuch the less to be considered as their frequency depends on principles\nother than the risk of punishment, the time for inquiry and the period\nof prescription ought both to be proportionately less. Yet cases of\nadultery and pederasty, both of difficult proof, are precisely those\nin which, according to received principles, tyrannical presumptions\nof _quasi-proofs_ and _half-proofs_ are allowed to prevail (as if\na man could be _half-innocent_ or _half-guilty_, in other words,\n_half-punishable_ or _half-acquittable_); in which torture exercises its\ncruel sway over the person of the accused, over the witnesses, and even\nover the whole family of an unfortunate wretch, according to the coldly\nwicked teaching of some doctors of law, who set themselves up as the rule\nand standard for judges to follow.\n\nIn view of these principles it will appear strange (to anyone who does\nnot reflect, that reason has, so to speak, never yet legislated for a\nnation), that it is just the most atrocious crimes or the most secret and\nchimerical ones\u2014that is, those of the least probability\u2014which are proved\nby conjectures or by the weakest and most equivocal proofs: as if it were\nthe interest of the laws and of the judge, not to search for the truth,\nbut to find out the crime; as if the danger of condemning an innocent\nman were not so much the greater, the greater the probability of his\ninnocence over that of his guilt.\n\nThe majority of mankind lack that vigour which is equally necessary for\nthe greatest crimes as for the greatest virtues; whence it would appear,\nthat both extremes are contemporaneous phenomena in nations which depend\nrather on the energy of their government and of the passions that tend to\nthe public good, than on their size and the constant goodness of their\nlaws. In the latter the weakened passions seem more adapted to maintain\nthan to improve the form of government. From which flows an important\nconsequence, namely, that great crimes in a nation do not always prove\nits decline.\n\n\n\n\nCHAPTER XIV.\n\nCRIMINAL ATTEMPTS, ACCOMPLICES, IMPUNITY.\n\n\nIt does not follow, because the laws do not punish intentions, that\ntherefore a crime begun by some action, significative of the will to\ncomplete it, is undeserving of punishment, although it deserves less than\na crime actually committed. The importance of preventing an attempt at a\ncrime justifies a punishment; but, as there may be an interval between\nthe attempt and the execution, the reservation of a greater punishment\nfor a consummated crime may present a motive for its non-completion.\n\nThe same may be said, though for a different reason, where there\nare several accomplices of a crime, not all of them its immediate\nperpetrators. When several men join together in an undertaking, the\ngreater its risk is, the more will they seek to make it equal for all\nof them; the more difficult it will be, therefore, to find one of them\nwho will be willing to put the deed into execution, if he thereby incurs\na greater risk than that incurred by his accomplices. The only exception\nwould be where the perpetrator received a fixed reward, for then, the\nperpetrator having a compensation for his greater risk, the punishment\nshould be equalised between him and his accomplices. Such reflections may\nappear too metaphysical to whosoever does not consider that it is of the\nutmost advantage for the laws to afford as few grounds of agreement as\npossible between companions in crime.\n\nSome courts promise impunity to an accomplice in a serious crime who will\nexpose his companions, an expedient that has its drawbacks as well as its\nadvantages. Among the former must be counted the national authorisation\nof treachery, a practice which even criminals detest; for crimes of\ncourage are less pernicious to a people than crimes of cowardice, courage\nbeing no ordinary quality, and needing only a beneficent directing force\nto make it conduce to the public welfare, whilst cowardice is more\ncommon and contagious, and always more self-concentrated than the other.\nBesides, a tribunal which calls for the aid of the law-breaker proclaims\nits own uncertainty and the weakness of the laws themselves. On the other\nhand, the advantages of the practice are, the prevention of crimes and\nthe intimidation of the people, owing to the fact that the results are\nvisible whilst the authors remain hidden; moreover, it helps to show that\na man who breaks his faith to the laws, that is, to the public, is likely\nalso to break it in private life. I think that a general law promising\nimpunity to an accomplice who exposes a crime would be preferable to\na special declaration in a particular case, because in this way the\nmutual fear which each accomplice would have of his own risk would tend\nto prevent their association; the tribunal would not make criminals\naudacious by showing that their aid was called for in a particular case.\nSuch a law, however, should accompany impunity with the banishment of\nthe informer.\u2026 But to no purpose do I torment myself to dissipate the\nremorse I feel in authorising the inviolable laws, the monument of\npublic confidence, the basis of human morality, to resort to treachery\nand dissimulation. What an example to the nation it would be, were the\npromised impunity not observed, and were the man who had responded to\nthe invitation of the laws dragged by learned quibbles to punishment, in\nspite of the public troth pledged to him! Such examples are not rare in\ndifferent countries; neither, therefore, is the number small, of those\nwho consider a nation in no other light than in that of a complicated\nmachine, whose springs the cleverest and the strongest move at their\nwill. Cold and insensible to all that forms the delight of tender and\nsensitive minds, they arouse, with imperturbable sagacity, either the\nsoftest feelings or the strongest passions, as soon as they see them of\nservice to the object they have in view, handling men\u2019s minds just as\nmusicians do their instruments.\n\n\n\n\nCHAPTER XV.\n\nTHE MILDNESS OF PUNISHMENTS.\n\n\nFrom the simple consideration of the truths hitherto demonstrated it is\nevident that the object of punishment is neither to torment and inflict\na sensitive creature nor to undo a crime already committed. Can he,\nwhose function it is, so far from acting from passion, to tranquillise\nthe private passions of his fellows, harbour in the body politic such\nuseless cruelty, the instrument either of furious fanatics or of weak\ntyrants? Shall perchance the shrieks of an unhappy wretch call back from\nnever-receding time actions already executed? The object, therefore,\nof punishment is simply to prevent the criminal from injuring anew his\nfellow-citizens, and to deter others from committing similar injuries;\nand those punishments and that method of inflicting them should be\npreferred which, duly proportioned to the offence, will produce a more\nefficacious and lasting impression on the minds of men and inflict the\nleast torture on the body of a criminal.\n\nWho can read history without being horror-struck at the barbarous and\nuseless torments which men, who were called wise, in cold blood devised\nand executed? Who is there but must feel his blood boil, when he regards\nthe thousands of wretches whom misery, either intended or tolerated by\nthe laws (which have always favoured the few and outraged the many),\nhas driven to a desperate return to the original state of nature; when\nhe sees them either accused by men endowed with the same senses, and\nconsequently with the same passions as themselves, of impossible crimes,\nthe fiction of timid ignorance, or guilty of nothing but fidelity to\ntheir own principles; and when he sees them lacerated by slow tortures,\nsubject to well-contrived formalities, an agreeable sight for a fanatical\nmultitude?\n\nIn order that a punishment may attain its object, it is enough if the\nevil of the punishment exceeds the advantage of the crime, and in this\nexcess of evil the certainty of punishment and the loss of the possible\nadvantage from the crime ought to be considered as part; all beyond this\nis superfluous and consequently tyrannical. Men regulate their conduct by\nthe reiterated impression of evils they know, not by reason of evils they\nignore. Given two nations, in one of which, in the scale of punishments\nproportioned to the scale of crimes, the severest penalty is perpetual\nservitude, and in the other the wheel; I say that the former will have as\ngreat a dread of its severest punishment as the latter will have; and if\nthere be any reason for transporting to the former country the greater\npenalties of the other, the same reasoning will serve for increasing\nstill more the penalties of this latter country, passing imperceptibly\nfrom the wheel to the slowest and most elaborate tortures, nay, even to\nthe last refinements of that science which tyrants understand only too\nwell.\n\nThe more cruel punishments become, the more human minds harden, adjusting\nthemselves, like fluids, to the level of objects around them; and the\never living force of the passions brings it about, that after a hundred\nyears of cruel punishments, the wheel frightens men only just as much as\nat first did the punishment of prison.\n\nThe very severity of a punishment leads men to dare so much the more to\nescape it, according to the greatness of the evil in prospect; and many\ncrimes are thus committed to avoid the penalty of a single one. Countries\nand times where punishments have been most severe have ever been those\nwhere the bloodiest and most inhuman deeds have been committed, the same\nspirit of ferocity that guided the hand of the legislator having guided\nalso that of the parricide and assassin; on the throne dictating iron\nlaws for the villanous souls of slaves to obey, and in the obscurity of\nprivate life urging to the slaughter of tyrants, only to create fresh\nones in their stead.\n\nTwo other fatal consequences flow from the cruelty of punishments,\nand are contrary to their very purpose, the prevention of crimes. The\nfirst is, that it is not so easy to preserve the essential proportion\nbetween crime and punishment, because, however much a studied cruelty\nmay diversify its forms, none of them can go beyond the extreme limit of\nendurance which is a condition of the human organisation and sensibility.\nWhen once this extreme limit is attained, it would be impossible to\ninvent such a corresponding increase of punishment for still more\ninjurious and atrocious crimes as would be necessary to prevent them.\nThe other consequence is, that impunity itself arises from the severity\nof punishments. Men are restrained within limits both in good and evil;\nand a sight too atrocious for humanity can only be a passing rage, not a\nconstant system, such as the laws ought to be; if the latter are really\ncruel, either they are changed, or themselves give rise to a fatal\nimpunity.\n\nI conclude with this reflection, that the scale of punishments should be\nrelative to the condition of a nation. On the hardened minds of a people\nscarcely emerged from the savage state the impressions made should be\nstronger and more sensible. One needs a thunderbolt for the destruction\nof a fierce lion that faces round at the shot of a gun. But in proportion\nas men\u2019s minds become softened in the social state, their sensibility\nincreases, and commensurate with that increase should be the diminution\nof the force of punishment, if it be desired to maintain any proportion\nbetween the object and the sensation that attends it.\n\n\n\n\nCHAPTER XVI.\n\nCAPITAL PUNISHMENT.\n\n\nThis useless prodigality of punishments, by which men have never been\nmade any better, has driven me to examine whether the punishment\nof death be really useful and just in a well organised government.\nWhat kind of right can that be which men claim for the slaughter of\ntheir fellow-beings? Certainly not that right which is the source of\nsovereignty and of laws. For these are nothing but the sum-total of\nthe smallest portions of individual liberty, and represent the general\nwill, that is, the aggregate of individual wills. But who ever wished to\nleave to other men the option of killing him? How in the least possible\nsacrifice of each man\u2019s liberty can there be a sacrifice of the greatest\nof all goods, namely, of life? And if there could be that sacrifice, how\nwould such a principle accord with the other, that a man is not the\nmaster of his own life? Yet he must have been so, could he have given to\nhimself or to society as a body this right of killing him.\n\nThe death penalty therefore is not a right; I have proved that it cannot\nbe so; but it is a war of a nation against one of its members, because\nhis annihilation is deemed necessary and expedient. But if I can show\nthat his death is neither necessary nor expedient, I shall have won the\ncause of humanity.\n\nThe death of a citizen can only be deemed necessary for two reasons.\nThe first is when, though deprived of his personal freedom, he has\nstill such connections and power as threaten the national security;\nwhen his existence is capable of producing a dangerous revolution in\nthe established form of government. The death of a citizen becomes\nthen necessary when the nation is recovering or losing its liberty, or\nin a time of anarchy, when confusion takes the place of laws; but in\ntimes when the laws hold undisturbed sway, when the form of government\ncorresponds with the wishes of a united nation, and is defended\ninternally and externally by force, and by opinion which is perhaps even\nstronger than force, where the supreme power rests only with the real\nsovereign, and riches serve to purchase pleasures but not places, I see\nno necessity for destroying a citizen, except when his death might be the\nreal and only restraint for diverting others from committing crimes; this\nlatter case constituting the second reason for which one may believe\ncapital punishment to be both just and necessary.\n\nSince mankind generally, suspicious always of the language of reason, but\nready to bow to that of authority, remain unpersuaded by the experience\nof all ages, in which the supreme punishment has never diverted resolute\nmen from committing offences against society; since also they are equally\nunmoved by the example of the Romans and by twenty years of the reign\nof the Empress Elizabeth of Russia, during which she presented this\nillustrious example to the fathers of their people, an example which\nis at least equivalent to many conquests bought by the blood of her\ncountry\u2019s sons, it is sufficient merely to consult human nature itself,\nto perceive the truth of the assertion I have made.\n\nThe greatest effect that any punishment has upon the human mind is not\nto be measured by its intensity but by its duration, for our sensibility\nis more easily and permanently affected by very slight but repeated\nimpressions than by a strong but brief shock. Habit holds universal sway\nover every sentient being, and as we speak and walk and satisfy our\nneeds by its aid, so moral ideas only stamp themselves on our mind by\nlong and repeated impressions. It is not the terrible yet brief sight of\na criminal\u2019s death, but the long and painful example of a man deprived\nof his liberty, who, having become as it were a beast of burthen,\nrepays with his toil the society he has offended, which is the strongest\nrestraint from crimes. Far more potent than the fear of death, which men\never have before their eyes in the remote distance, is the thought, so\nefficacious from its constant recurrence: \u2018I myself shall be reduced to\nas long and miserable a condition if I commit similar misdeeds.\u2019\n\nCapital punishment makes an impression in prospect which, with all\nits force, does not fully meet that ready spirit of forgetfulness, so\nnatural to man even in his most important concerns, and so liable to\nbe accelerated by his passions. As a general rule, men are startled\nby the sight of violent sufferings, but not for long, and therefore\nsuch impressions are wont so to transform them as to make of ordinary\nmen either Persians or Spartans; but in a free and settled government\nimpressions should rather be frequent than strong.\n\nCapital punishment becomes a spectacle for the majority of mankind, and\na subject for compassion and abhorrence for others; the minds of the\nspectators are more filled with these feelings than with the wholesome\nterror the law pretends to inspire. But in moderate and continuing\npenalties the latter is the predominant feeling, because it is the only\none. The limit, which the legislator should affix to the severity of\npenalties, appears to lie in the first signs of a feeling of compassion\nbecoming uppermost in the minds of the spectators, when they look upon\nthe punishment rather as their own than as that of the criminal.\n\nIn order that a punishment may be just, it must contain only such\ndegrees of intensity as suffice to deter men from crimes. But as there\nis no one who on reflection would choose the total and perpetual loss\nof his liberty, however great the advantages offered him by a crime,\nthe intensity of the punishment of servitude for life, substituted for\ncapital punishment, has that in it which is sufficient to daunt the most\ndetermined courage. I will add that it is even more deterrent than death.\nVery many men face death calmly and firmly, some from fanaticism, some\nfrom vanity, which almost always attends a man to the tomb; others from a\nlast desperate attempt either no longer to live or to escape from their\nmisery; but neither fanaticism nor vanity have any place among fetters\nand chains, under the stick, under the yoke, in a cage of iron; the\nwretch thus punished is so far from terminating his miseries that with\nhis punishment he only begins them.\n\nThe mind of man offers more resistance to violence and to extreme but\nbrief pains than it does to time and to incessant weariness; for whilst\nit can, so to speak, gather itself together for a moment to repel the\nformer, its vigorous elasticity is insufficient to resist the long and\nrepeated action of the latter. In the case of capital punishment, each\nexample presented of it is all that a single crime affords; in penal\nservitude for life, a single crime serves to present numerous and lasting\nwarnings. And if it be important that the power of the laws should often\nbe witnessed, there ought to be no long intervals between the examples\nof the death penalty; but this would presuppose the frequency of crimes,\nso that, to render the punishment effective, it must not make on men\nall the impression that it ought to make, in other words, it must be\nuseful and not useful at the same time. And should it be objected that\nperpetual servitude is as painful as death, and therefore equally cruel,\nI will reply, that, taking into consideration all the unhappy moments of\nservitude, it will perhaps be even more painful than death; but whilst\nthese moments are spread over the whole of a lifetime, death exercises\nall its force in a single moment. There is also this advantage in penal\nservitude, that it has more terrors for him who sees it than for him\nwho suffers it, for the former thinks of the whole sum-total of unhappy\nmoments, whilst the latter, by the unhappiness of the present moment, has\nhis thoughts diverted from that which is to come. All evils are magnified\nin imagination, and every sufferer finds resources and consolations\nunknown to and unbelieved in by spectators, who substitute their own\nsensibility for the hardened soul of a criminal.\n\nThe following is the kind of reasoning adopted by the thief or the\nassassin, whose only motives for not breaking the laws are the gallows\nor the wheel. (I know that the analysis of one\u2019s own thoughts is an art\nonly learnt by education, but a thief does not the less act according to\ncertain principles because he is unable to express them). \u2018Of what sort,\u2019\nhe argues, \u2018are these laws that I am bound to observe, that leave so\ngreat an interval between myself and the rich man? He denies me the penny\nI ask of him, and excuses himself by ordering from me a work of which\nhe himself knows nothing. Who has made these laws? Were they not made\nby rich and powerful men, who have never deigned to visit the wretched\nhovels of the poor, who have never divided a musty loaf of bread amid\nthe innocent cries of famished children and the tears of a wife? Let\nus break these bonds, which are fatal to the greater number, and only\nuseful to a few indolent tyrants; let us attack injustice in its source.\nI will return to my state of natural independence; I will live for some\ntime happy and free on the fruits of my courage and address; and if\nthe day should ever come when I have to suffer and repent for it, the\ntime of suffering will be short, and I shall have one day of misery for\nmany years of liberty and pleasure. As the king of a small band, I will\ncorrect the errors of fortune, and see these tyrants pale and tremble\nbefore one, whom in their insolent arrogance they rated lower than their\nhorses or their dogs.\u2019 Then religion hovers before the mind of the\ncriminal, who turns everything to a bad use, and offering him a facile\nrepentance and an almost certain eternity of bliss does much to diminish\nin his eyes the horror of that last tragedy of all.\n\nBut the man who sees in prospect a great number of years, or perhaps the\nwhole of his life, to be passed in servitude and suffering before the\neyes of fellow-citizens with whom he is living in freedom and friendship,\nthe slave of those laws which had once protected him, makes a useful\ncomparison of all these circumstances with the uncertain result of his\ncrimes and with the shortness of the time for which he would enjoy their\nfruits. The ever present example of those whom he actually sees the\nvictims of their own imprudence, impresses him much more strongly than\nthe sight of a punishment which hardens rather than corrects him.\n\nCapital punishment is injurious by the example of barbarity it presents.\nIf human passions, or the necessities of war, have taught men to shed\none another\u2019s blood, the laws, which are intended to moderate human\nconduct, ought not to extend the savage example, which in the case of a\nlegal execution is all the more baneful in that it is carried out with\nstudied formalities. To me it seems an absurdity, that the laws, which\nare the expression of the public will, which abhor and which punish\nmurder, should themselves commit one; and that, to deter citizens from\nprivate assassination, they should themselves order a public murder. What\nare the true and the most useful laws? Are they not those covenants and\nconditions which all would wish observed and proposed, when the incessant\nvoice of private interest is hushed or is united with the interest of the\npublic? What are every man\u2019s feelings about capital punishment? Let us\nread them in the gestures of indignation and scorn with which everyone\nlooks upon the executioner, who is, after all, an innocent administrator\nof the public will, a good citizen contributory to the public welfare,\nan instrument as necessary for the internal security of a State as\nbrave soldiers are for its external. What, then, is the source of this\ncontradiction; and why is this feeling, in spite of reason, ineradicable\nin mankind? Because men in their most secret hearts, that part of them\nwhich more than any other still preserves the original form of their\nfirst nature, have ever believed that their lives lie at no one\u2019s\ndisposal, save in that of necessity alone, which, with its iron sceptre,\nrules the universe.\n\nWhat should men think when they see wise magistrates and grave priests\nof justice with calm indifference causing a criminal to be dragged\nby their slow procedure to death; or when they see a judge, whilst a\nmiserable wretch in the convulsions of his last agonies is awaiting the\nfatal blow, pass away coldly and unfeelingly, perhaps even with a secret\nsatisfaction in his authority, to enjoy the comforts and pleasures of\nlife? \u2018Ah\u2019 they will say, \u2018these laws are but the pretexts of force,\nand the studied cruel formalities of justice are but a conventional\nlanguage, used for the purpose of immolating us with greater safety, like\nvictims destined in sacrifice to the insatiable idol of tyranny. That\nassassination which they preach to us as so terrible a misdeed we see\nnevertheless employed by them without either scruple or passion. Let us\nprofit by the example. A violent death seemed to us a terrible thing in\nthe descriptions of it that were made to us, but we see it is a matter of\na moment. How much less terrible will it be for a man who, not expecting\nit, is spared all that there is of painful in it.\u2019\n\nSuch are the fatal arguments employed, if not clearly, at least vaguely,\nby men disposed to crimes, among whom, as we have seen, the abuse of\nreligion is more potent than religion itself.\n\nIf I am confronted with the example of almost all ages and almost all\nnations who have inflicted the punishment of death upon some crimes, I\nwill reply, that the example avails nothing before truth, against which\nthere is no prescription of time; and that the history of mankind conveys\nto us the idea of an immense sea of errors, among which a few truths,\nconfusedly and at long intervals, float on the surface. Human sacrifices\nwere once common to almost all nations, yet who for that reason will dare\ndefend them? That some few states, and for a short time only, should\nhave abstained from inflicting death, rather favours my argument than\notherwise, because such a fact is in keeping with the lot of all great\ntruths, whose duration is but as of a lightning flash in comparison with\nthe long and darksome night that envelops mankind. That happy time has\nnot yet arrived when truth, as error has hitherto done, shall belong to\nthe majority of men; and from this universal law of the reign of error\nthose truths alone have hitherto been exempt, which supreme wisdom has\nseen fit to distinguish from others, by making them the subject of a\nspecial revelation.\n\nThe voice of a philosopher is too feeble against the noise and cries\nof so many followers of blind custom, but the few wise men scattered\nover the face of the earth will respond to me from their inmost hearts;\nand, amid the many obstacles that keep it from a monarch, should truth\nperchance arrive in spite of him at his throne, let him know that it\ncomes there attended by the secret wishes of all men; let him know that\nbefore his praises the bloody fame of conquerors will be silenced, and\nthat posterity, which is just, will assign him the foremost place among\nthe pacific triumphs of a Titus, an Antonine, or a Trajan.\n\nHappy were humanity, if laws were now dictated to it for the first\ntime, when we see on the thrones of Europe beneficent monarchs, men\nwho encourage the virtues of peace, the sciences and the arts, who are\nfathers to their people, who are crowned citizens, and the increase of\nwhose authority forms the happiness of their subjects, because it removes\nthat intermediate despotism, more cruel because less secure, by which the\npeople\u2019s wishes, always sincere, and always attended to when they can\nreach the throne, have been usually intercepted and suppressed. If they,\nI say, suffer the ancient laws to exist, it is owing to the infinite\ndifficulties of removing from errors the revered rust of many ages; which\nis a reason for enlightened citizens to desire with all the greater\nardour the continual increase of their authority.\n\n\n\n\nCHAPTER XVII.\n\nBANISHMENT AND CONFISCATIONS.\n\n\nWhosoever disturbs the public peace, or obeys not the laws, that is, the\nconditions under which men bear with and defend one another, ought to be\nexcluded from society, that is, to be banished from it.\n\nBanishment, it would seem, should be employed in the case of those\nagainst whom, when accused of an atrocious crime, there is a great\nprobability but not a certainty of guilt; but for this purpose a statute\nis required, as little arbitrary and as precise as possible, condemning\nto banishment any man who shall have placed his country in the fatal\ndilemma of either fearing him or of injuring him, leaving him, however,\nthe sacred right of proving his innocence. Stronger reasons then should\nexist to justify the banishment of a native than of a foreigner, of a man\ncriminated for the first time than of one who has been often so situated.\n\nBut should a man who is banished and excluded for ever from the society\nof which he was a member be also deprived of his property? Such a\nquestion may be regarded from different points of view. The loss of\nproperty is a greater punishment than banishment; there ought, therefore,\nto be some cases in which, according to his crime, a man should lose\nthe whole, or part, or none of his property. The confiscation of the\nwhole will occur, when the legal sentence of banishment is of a kind to\nannihilate all the ties that exist between society and its offending\nmember; for in such a case the citizen dies, and only the man remains;\nand with regard to the political body civil death should produce the\nsame effect as natural death. It would seem then that the confiscated\nproperty should pass to a man\u2019s lawful heirs rather than to the head\nof the State, since death and banishment in its extreme form are the\nsame with regard to the body politic. But it is not by this subtlety\nthat I dare to disapprove of confiscations of property. If some have\nmaintained that confiscations have acted as checks on acts of revenge\nand on the great power of individuals, it is from neglecting to consider\nthat, however much good punishments may effect, they are not for that\nreason always just, because to be just they must be necessary; and\nan expedient injustice can be tolerated by no legislator, who wishes\nto close all doors against watchful tyranny, ever ready to hold out\nflattering hopes, by temporary advantages and by the prosperity of a few\npersons of celebrity, in disregard of future ruin and of the tears of\nnumberless persons of obscurity. Confiscations place a price on the heads\nof the feeble, cause the innocent to suffer the punishment of the guilty,\nand make the commission of crimes a desperate necessity even for the\ninnocent. What sadder sight can there be than that of a family dragged\ndown to infamy and misery by the crimes of its head, unable to prevent\nthem by the submission imposed on it by the laws, even supposing such\nprevention to have been within its power!\n\n\n\n\nCHAPTER XVIII.\n\nINFAMY.\n\n\nInfamy is a sign of public disapprobation, depriving a criminal of the\ngood-will of his countrymen, of their confidence, and of that feeling\nalmost of fraternity that a common life inspires. It does not depend upon\nthe laws. Hence the infamy which the laws inflict should be the same\nas that which arises from the natural relations of things, the same as\nthat taught by universal morality, or by that particular morality, which\ndepends on particular systems, and sets the law for ordinary opinions\nor for this and that nation. If the one kind of infamy is different\nfrom the other, either the law loses in public esteem, or the ideas of\nmorality and honesty disappear, in spite of declamations, which are never\nefficacious against facts. Whoever declares actions to be infamous which\nare in themselves indifferent, detracts from the infamy of actions that\nare really in themselves infamous.\n\nCorporal and painful punishments should not be inflicted for those\ncrimes which have their foundation in pride, and draw from pain itself\ntheir glory and nutriment. For such crimes ridicule and infamy are more\nfitted, these being penalties which curb the pride of fanatics by the\npride of the beholders, and only let truth itself escape their tenacity\nby slow and obstinate efforts. By such an opposition of forces against\nforces, and of opinions against opinions, the wise legislator destroys\nthat admiration and astonishment among a people, which a false principle\ncauses, whose original absurdity is usually hidden from view by the\nplausible conclusions deduced from it.\n\nPenalties of infamy ought neither to be too common, nor to fall upon too\nmany persons at a time; not too common, because the real and too frequent\neffects of matters of opinion weaken the force of opinion itself; not too\ngeneral, because the disgrace of many persons resolves itself into the\ndisgrace of none of them.\n\nThis, then, is the way to avoid confounding the relations and invariable\nnature of things, which, being unlimited by time and in ceaseless\noperation, confounds and overturns all narrow regulations that depart\nfrom it. It is not only the arts of taste and pleasure which have for\ntheir universal principle the faithful imitation of nature; but the art\nof politics itself, at least that which is true and permanent, is subject\nto this general maxim, since it consists in nothing else than the art\nof directing in the best way and to the same purposes the immutable\nsentiments of mankind.\n\n\n\n\nCHAPTER XIX.\n\nTHE PROMPTNESS OF PUNISHMENTS.\n\n\nThe more speedily and the more nearly in connection with the crime\ncommitted punishment shall follow, the more just and useful it will be.\nI say more just, because a criminal is thereby spared those useless and\nfierce torments of suspense which are all the greater in a person of\nvigorous imagination and fully conscious of his own weakness; more just\nalso, because the privation of liberty, in itself a punishment, can only\nprecede the sentence by the shortest possible interval compatible with\nthe requirements of necessity. Imprisonment, therefore, is simply the\nsafe custody of a citizen pending the verdict of his guilt; and this\ncustody, being essentially disagreeable, ought to be as brief and easy\nas possible. The shortness of the time should be measured both by the\nnecessary length of the preparations for the trial and by the seniority\nof claim to a judgment. The strictness of confinement should be no more\nthan is necessary either for the prevention of escape or for guarding\nagainst the concealment of the proof of crimes. The trial itself should\nbe finished in the shortest time possible. What contrast more cruel\nthan that between a judge\u2019s ease and a defendant\u2019s anguish? between\nthe comforts and pleasures of an unfeeling magistrate on the one hand,\nand the tears and wretchedness of a prisoner on the other? In general,\nthe weight of a punishment and the consequence of a crime should be as\nefficacious as possible for the restraint of other men and as little hard\nas possible for the individual who is punished; for one cannot call that\na proper form of society, where it is not an infallible principle, that\nits members intended, in constituting it, to subject themselves to as few\nevils as possible.\n\nI said that the promptness of punishment is more useful, because the\nshorter the interval of time between the punishment and the misdeed,\nthe stronger and the more lasting in the human mind is the association\nof these ideas, crime and punishment, so that insensibly they come to\nbe considered, the one as the cause and the other as its necessary and\ninevitable consequence. It is a proved fact that the association of\nideas is the cement of the whole fabric of the human intellect, and\nthat without it pleasure and pain would be isolated and ineffective\nfeelings. The further removed men are from general ideas and universal\nprinciples, that is, the more commonplace they are, the more they act\nby their immediate and nearest associations, to the neglect of remoter\nand more complex ones, the latter being of service only to men strongly\nimpassioned for a given object of pursuit, inasmuch as the light of\nattention illuminates a single object, whilst it leaves the others\nobscure. They are also of service to minds of a higher quality, because,\nhaving acquired the habit of running rapidly over many subjects at a\ntime, they possess facility in placing in contrast with one another many\npartial feelings, so that the result of their thoughts, in other words,\ntheir action, is less perilous and uncertain.\n\nThe close connection, therefore, of crime and punishment is of the\nutmost importance, if it be desirable that in rough and common minds\nthere should, together with the seductive idea of an advantageous crime,\nimmediately start up the associated idea of its punishment. Long delay\nhas no other effect than the perpetual separation of these two ideas;\nand whatever the impression produced by the punishment of a crime, it\nproduces it less as a punishment than as a sight, and only produces it\nwhen the horror of the particular crime, which would serve to strengthen\nthe feeling of the punishment, has been weakened in the minds of the\nspectators.\n\nAnother principle would serve admirably to draw still closer the\nimportant connection between a misdeed and its punishment, and that is,\nthat the latter should as far as possible conform to the nature of the\ncrime. This analogy facilitates marvellously the contrast that ought to\nexist between the impulse to the crime and the counter-influence of the\npunishment, the one, that is, diverting the mind and guiding it to an end\nquite different from that to which the seductive idea of transgressing\nthe law endeavours to lead it.\n\nPersons guilty of lesser crimes are usually either punished in the\nobscurity of a prison, or transported, as an example to nations who have\ngiven no offence, to a distant and therefore almost useless servitude.\nSince the gravest crimes are not those which men are tempted to commit\non the spur of the moment, the public punishment of a great misdeed will\nbe regarded by most men as strange and of impossible occurrence; but the\npublic punishment of lighter crimes, to which men\u2019s thoughts more readily\nincline, will make an impression, which, at the same time that it diverts\nthe mind from them, will restrain it still more from crimes of greater\ngravity. Punishments should not only be proportioned to one another and\nto crimes in point of force, but also in the mode of their infliction.\n\n\n\n\nCHAPTER XX.\n\nCERTAINTY OF PUNISHMENTS\u2014PARDONS.\n\n\nOne of the greatest preventives of crimes is, not the cruelty of the\npunishments attached to them, but their infallibility, and consequently\nthat watchfulness on the part of the magistrates and that inexorable\nseverity on the part of the judge which, to be a useful virtue, must\ncoincide with a mild system of laws. The certainty of a punishment,\nmoderate though it be, will ever make a stronger impression than the\nfear of another, more terrible, perhaps, but associated with the hope\nof impunity; for even the least evils when certain always terrify men\u2019s\nminds, and hope, that gift of heaven, which often makes up to us for\neverything, always throws into the distance the idea of greater evils,\nespecially when its force is increased by impunity, which avarice and\nweakness so often grant.\n\nIt is sometimes the custom to release a man from the punishment of a\nslight crime when the injured person pardons him: an act, indeed, which\nis in accordance with mercy and humanity but contrary to public policy;\nas if a private citizen could by his remission do away with the necessity\nof the example in the same way that he can excuse the reparation due for\nthe offence. The right of punishing does not rest with an individual,\nbut with the community as a whole, or the sovereign. An individual can\nonly renounce his particular portion of that right, not annul that of all\nthe rest.\n\nIn proportion as punishments become milder, clemency and pardon become\nless necessary. Happy the nation in which their exercise should be\nbaneful! Clemency, therefore, that virtue, which has sometimes made up\nin a sovereign for failings in all the other duties of the throne, ought\nto be excluded in a perfect system of legislation, where punishments\nare mild and the method of trial regular and expeditious. This truth\nwill appear a hard one to anybody living in the present chaotic state\nof the criminal law, where the necessity of pardon and favours accords\nwith the absurdity of the laws and with the severity of sentences of\npunishment. This right of pardon is indeed the fairest prerogative of\nthe throne, the most desirable attribute of sovereignty; it is, however,\nthe tacit mark of disapproval that the beneficent dispensers of the\npublic happiness exhibit towards a code, which with all its imperfections\nclaims in its favour the prejudice of ages, the voluminous and imposing\narray of innumerable commentators, the weighty apparatus of unending\nformalities, and the adhesion of those persons of half-learning who,\nthough less feared than real philosophers, are really more dangerous.\nBut let it be remembered that clemency is the virtue of the maker, not\nof the executor, of the laws; that it should be conspicuous in the code\nof laws rather than in particular judgments; that the showing to men,\nthat crimes may be pardoned and that punishment is not their necessary\nconsequence, encourages the hope of impunity, and creates the belief\nthat sentences of condemnation, which might be remitted and are not, are\nrather violent exhibitions of force than emanations of justice. What\nshall be said then when the sovereign grants a pardon, that is, public\nimmunity to an individual, and when a private act of unenlightened\nkindness constitutes a public decree of impunity? Let the laws therefore\nbe inexorable and their administrators in particular cases inexorable,\nbut let the law-maker be mild, merciful, and humane. Let him found his\nedifice, as a wise architect, on the basis of self-love; let the general\ninterest be the sum of the interests of each, and he will no longer be\nconstrained, by partial laws and violent remedies to separate at every\nmoment the public welfare from that of individuals, and to raise the\nappearance of public security on fear and mistrust. As a profound and\nfeeling philosopher let him allow men, that is, his brethren, to enjoy in\npeace that small share of happiness which is given them to enjoy in this\ncorner of the universe, in that immense system established by the First\nCause, by Him Who Is.\n\n\n\n\nCHAPTER XXI.\n\nASYLUMS OF REFUGE.\n\n\nThere remain two questions for me to examine: the first, whether asylums\nof refuge are just, and whether international agreements of extradition\nare expedient or not. There should be no spot within the boundaries of\nany country independent of the laws. Every citizen should be followed\nby their power, as every substance is followed by its shadow. There is\nonly a difference of degree between impunity and the right of asylum;\nand as the effective influence of punishment consists more in its\ninevitability than in its violence, asylums do more to invite to crimes\nthan punishments do to deter from them. The multiplication of asylums is\nthe formation of so many petty sovereignties; for where there are no laws\nto command, there it is easy for new laws, opposed to the general laws of\na country, to be formed, and consequently for a spirit opposed to that of\nthe whole collective social body to arise. All history shows that from\nasylums have issued great revolutions in States and in the opinions of\nmankind.\n\nSome persons have maintained that a crime, that is, an action contrary\nto the laws, is punishable wherever committed, as if the character of\nsubject were indelible, or, in other words, synonymous with, nay, worse\nthan, the character of slave; as if a man could be the subject of one\nkingdom and the resident of another, or as if his actions could without\ncontradiction be subordinate to two sovereign powers and to two legal\nsystems often contradictory. So some think that a cruel action done, say,\nat Constantinople is punishable at Paris, for the abstract reason that\nhe who offends humanity deserves to have collective humanity for his\nenemy, and merits universal execration; as if judges were the avengers\nof human sensibility in general, and not rather of the covenants that\nbind men together. The place of punishment is the place of the crime,\nbecause there, and there only, is it a compulsory duty to injure an\nindividual, to prevent an injury to the public. A villain, but one who\nhas not broken the covenants of the society of which he was not a member,\nmay be an object of fear, and for that reason be expelled and exiled by\nthe superior power of that society; but he cannot be legally and formally\npunished, since it is for the laws to avenge, not the intrinsic malice of\nparticular actions, but the violation of compacts.\n\nBut whether the international extradition of criminals be useful I would\nnot venture to decide, until laws more in conformity with the needs of\nhumanity, until milder penalties, and until the emancipation of law from\nthe caprice of mere opinion, shall have given security to oppressed\ninnocence and hated virtue; until tyranny shall have been confined,\nby the force of universal reason which ever more and more unites the\ninterests of kings and subjects, to the vast plains of Asia; however much\nthe conviction of finding nowhere a span of earth where real crimes were\npardoned might be the most efficacious way of preventing their occurrence.\n\n\n\n\nCHAPTER XXII.\n\nOF PROSCRIPTION.\n\n\nThe second question is, whether it is expedient to place a reward on the\nhead of a known criminal, and to make of every citizen an executioner\nby arming him against the offender. Either the criminal has fled from\nhis country or he is still within it. In the first case the sovereign\nencourages the commission of a crime and exposes its author to a\npunishment, being thereby guilty of an injury and of an usurpation of\nauthority in the dominions of another, and authorising other nations\nto do the same by himself. In the second case the sovereign displays\nhis own weakness, for he who has the power wherewith to defend himself\nseeks not to purchase it. Moreover, such an edict upsets all ideas of\nmorality and virtue, which are ever ready to vanish from the human\nmind at the very slightest breath. Now the laws invite to treachery,\nand anon they punish it; with one hand the legislator tightens the\nbonds of the family, of kindred, and of friendship, whilst with the\nother he rewards whosoever violates and despises them; always in\nself-contradiction, he at one moment invites to confidence the suspicious\nnatures of men, and at another scatters mistrust broadcast among them.\nInstead of preventing one crime, he causes a hundred. These are the\nresources of weak nations, whose laws are but the temporary repairs of\na ruined building that totters throughout. In proportion as a nation\nbecomes enlightened, good faith and mutual confidence become necessary,\nand tend ever more to identify themselves with true policy. Tricks,\nintrigues, dark and indirect paths, are for the most part foreseen, and\nthe general quickness of all men collectively over-reaches and blunts\nthat of single individuals. The very ages of ignorance, in which public\nmorality inclines men to obey the dictates of private morality, serve\nas instruction and experience for the ages of enlightenment. But laws\nwhich reward treachery and stir up clandestine hostility by spreading\nmutual suspicion among citizens, are opposed to this union of private and\npublic morality, a union which is so necessary, and to the observance of\nwhich individuals might owe their happiness, nations their peace, and\nthe universe a somewhat longer period of quiet and repose from the evils\nwhich at present pervade it.\n\n\n\n\nCHAPTER XXIII.\n\nPROPORTION BETWEEN CRIMES AND PUNISHMENTS.\n\n\nNot only is it the general interest that crimes should not be committed,\nbut that they should be rare in proportion to the evils they cause\nto society. The more opposed therefore that crimes are to the public\nwelfare, and the more numerous the incentives to them, the stronger\nshould be the repellent obstacles. This principle accordingly establishes\nthe necessity of a certain proportion between crimes and punishments.\n\nIf pleasure and pain are the motors of sensitive beings, if the invisible\nlawgiver of humanity has decreed rewards and punishments as one of the\nmotives to impel men to even their noblest endeavours, the inexact\ndistribution of these motives will give rise to that contradiction, as\nlittle noticed as it is of common occurrence, namely, that the laws\npunish crimes which are entirely of their own creation. If an equal\npenalty is attached to two crimes of unequal injury to society, the\ngreater crime of the two, if it promise a greater advantage than the\nother, will have no stronger motive in restraint of its perpetration.\nWhoever, for example, sees the same punishment of death decreed for the\nman who kills a pheasant and the man who slays his fellow or falsifies\nan important document, will draw no distinction between such crimes;\nand thus moral sentiments, the product only of many ages and of much\nbloodshed, the slowest and most difficult attainment of the human mind,\ndependent, it has been thought, on the aid of the most sublime motives\nand on a parade of the gravest formalities, will be destroyed and lost.\n\nIt is impossible to prevent all the disorders that may arise in the\nuniversal conflict of human passions. Their increase depends on that of\npopulation and on the crossings of private interests, which cannot be\ndirected with geometrical exactness to the public welfare. In political\narithmetic the calculation of probabilities must be substituted for\nmathematical exactness. Glance at the history of the world, and you\nwill see disorders increase with the increase of the bounds of empire;\nthus national feeling being to the same extent diminished, the general\ninducement to crime increases with the greater interest of each\nindividual in such disorders, and on this account the necessity for\naggravating penalties ever continues to increase.\n\nThat force, similar to the force of gravitation, which constrains us\nto seek our own well-being, only admits of counteraction in proportion\nto the obstacles opposed to it. The effects of this force make up the\nconfused series of human actions; if these clash together and impede one\nanother, punishments, which I would call _political obstacles_, prevent\nbad effects from resulting, without destroying the impelling cause, which\nlies in the sensibility inseparable from humanity; and the legislator, in\nenacting them, acts the part of a clever architect, whose function it is\nto counteract the tendency of gravitation to cause a building to fall,\nand to bring to bear all the lines which contribute to its strength.\n\nGiven the necessity of the aggregation of mankind, and given the\ncovenants which necessarily result from the very opposition of private\ninterests, a scale of offences may be traced, beginning with those which\ntend directly to the destruction of society, and ending with acts of\nthe smallest possible injustice committed against individual members\nof it. Between these extremes are comprised all the actions opposed to\nthe public welfare which are called crimes, and which by imperceptible\ndegrees decrease in enormity from the highest to the lowest. If\nthe infinite and obscure combinations of human actions admitted of\nmathematical treatment, there ought to be a corresponding scale of\npunishments, varying from the severest to the slightest penalty. If there\nwere an exact and universal scale of crimes and punishments, we should\nhave an approximate and general test by which to gauge the degrees of\ntyranny and liberty in different governments, the relative state of the\nhumanity or wickedness of different nations. But the wise legislator will\nrest satisfied with marking out the principal divisions in such a scale,\nso as not to invert their order, nor to affix to crimes of the first\ndegree punishments due to those of the last.\n\n\n\n\nCHAPTER XXIV.\n\nTHE MEASURE OF PUNISHMENTS.\n\n\nWe have seen that the true measure of crimes is the injury done to\nsociety. This is one of those palpable truths which, however little\ndependent on quadrants or telescopes for their discovery, and fully\nwithin the reach of any ordinary intelligence, are yet, by a marvellous\ncombination of circumstances, only recognised clearly and firmly by\nsome few thinkers, belonging to every nationality and to every age. But\nAsiatic ideas, and passions clothed with authority and power, have,\ngenerally by imperceptible movements, sometimes by violent assaults on\nthe timid credulity of mankind, dissipated those simple notions, which\nperhaps formed the first philosophy of primitive communities, and to\nwhich the enlightenment of this age seems likely to reconduct us, but\nto do so with that greater sureness, which can be gained from an exact\ninvestigation into things, from a thousand unhappy experiences, and from\nthe very obstacles that militate against it.\n\nThey who have thought that the criminal\u2019s intention was the true measure\nof crimes were in the wrong. For the intention depends on the actual\nimpression of things upon a man, and on his precedent mental disposition,\nthings which vary in all men and in each man, according to the very\nrapid succession of his ideas, his passions, and his circumstances. It\nwould, therefore, be necessary to form not only a particular code for\neach citizen, but a fresh law for every crime. Sometimes with the best\nintentions men do the greatest evil to society; and sometimes with the\nvery worst they do it the greatest good.\n\nOthers again measure crimes rather by the rank of the person injured\nthan by their importance in regard to the public weal. Were this the\ntrue measure of crimes, any act of irreverence towards the Supreme Being\nshould be punished more severely than the assassination of a monarch,\nwhereas the superiority of His nature affords an infinite compensation\nfor the difference of the offence.\n\nLastly, some have thought that the gravity of an act\u2019s sinfulness should\nbe an element in the measure of crimes. But an impartial observer of the\ntrue relations between man and man, and between man and God, will easily\nperceive the fallacy of this opinion. For the former relationship is one\nof equality; necessity alone, from the clash of passions and opposing\ninterests, having given rise to the idea of the _public utility_, the\nbasis of human justice. But the other relationship is one of dependence\non a perfect Being and Creator, who has reserved to Himself alone the\nright of being at the same time legislator and judge, and can alone\nunite the two functions without bad effects. If He has decreed eternal\npunishments to those who disobey His omnipotence, what insect shall\ndare to take the place of Divine justice, or shall wish to avenge that\nBeing, who is all-sufficient to Himself, who can receive from things no\nimpression of pleasure nor of pain, and who alone of all beings acts\nwithout reaction? The degree of sinfulness in an action depends on the\nunsearchable wickedness of the heart, which cannot be known by finite\nbeings without a revelation. How, then, found thereon a standard for the\npunishment of crimes? In such a case men might punish when God pardons,\nand pardon when God punishes. If men can act contrary to the Almighty by\noffending Him, they may also do so in the punishments they inflict.\n\n\n\n\nCHAPTER XXV.\n\nTHE DIVISION OF PUNISHMENTS.\n\n\nSome crimes tend directly to the destruction of society or to the\nsovereign who represents it; others affect individual citizens, by\nimperilling their life, their property, or their honour; whilst others,\nagain, are actions contrary to the positive or negative obligations which\nbind every individual to the public weal.\n\nAny action that is not included between the two above-indicated extremes\ncan only be called a _crime_ or punished as such by those who find their\ninterest in so calling it. The uncertainty of these limits has produced\nin different nations a system of ethics contrary to the system of laws,\nhas produced many actual systems of laws at total variance with one\nanother, and a quantity of laws which expose even the wisest man to the\nseverest penalties. Consequently the words _virtue_ and _vice_ have\nbecome of vague and variable meaning, and from the uncertainty thus\nsurrounding individual existence, listlessness and a fatal apathy have\nspread over political communities.\n\nThe opinion that each citizen should have liberty to do whatsoever is\nnot contrary to the laws, without fear of any other inconvenience than\nsuch as may arise from the action itself\u2014this is the political dogma\nthat should be believed by the people and promulgated by the chief\nmagistrates, a dogma as sacred as that of the incorrupt guardianship\nof the laws, without which there can be no legitimate society; a just\ncompensation to mankind for their sacrifice of that entire liberty of\naction which belongs to every sensitive being, and is only limited by the\nextent of its force. This it is that forms liberal and vigorous souls,\nand enlightened minds; that makes men virtuous with that virtue which can\nresist fear, and not with that flexible kind of prudence which is only\nworthy of a man who can put up with a precarious and uncertain existence.\n\nWhosoever will read with a philosophical eye the codes and annals of\ndifferent nations will find almost always that the names of _virtue_ and\n_vice_, of _good citizen_ and _criminal_, are changed in the course of\nages, not in accordance with the changes that occur in the circumstances\nof a country, and consequently in conformity with the general interest,\nbut in accordance with the passions and errors that have swayed different\nlegislators in succession. He will observe full often, that the passions\nof one age form the basis of the morality of later ones; that strong\npassions, the offspring of fanaticism and enthusiasm, weakened and, so\nto speak, gnawed away by time (which reduces to a level all physical and\nmoral phenomena) become little by little the prudence of the age, and a\nuseful instrument in the hand of the strong man and the clever. In this\nway the vaguest notions of honour and virtue have been produced; for they\nchange with the changes of time, which causes names to survive things; as\nalso with the changes of rivers and mountains, which form frequently the\nboundaries of moral no less than of physical geography.\n\n\n\n\nCHAPTER XXVI.\n\nCRIMES OF HIGH TREASON.\n\n\nThe first class of crimes\u2014that is, the worst, because they are the most\ninjurious to society\u2014are those known as crimes of high treason. Only\ntyranny and ignorance, which confound words and ideas of the clearest\nmeaning, can apply this name, and consequently the heaviest punishment,\nto different kinds of crimes, thus rendering men, as in a thousand other\ncases, the victims of a word. Every crime, be it ever so private, injures\nsociety; but every crime does not aim at its immediate destruction.\nMoral, like physical actions, have their limited sphere of activity, and\nare differently circumscribed, like all the movements of nature, by time\nand space; and therefore only a sophistical interpretation, which is\ngenerally the philosophy of slavery, can confound what eternal truth has\ndistinguished by immutable differences.\n\n\n\n\nCHAPTER XXVII.\n\nCRIMES AGAINST PERSONAL SECURITY\u2014ACTS OF VIOLENCE\u2014PUNISHMENTS OF NOBLES.\n\n\nAfter crimes of high treason come crimes opposed to the personal security\nof individuals. This security being the primary end of every properly\nconstituted society, it is impossible not to affix to the violation of\nany citizen\u2019s right of personal security one of the severest punishments\nthat the laws allow.\n\nSome crimes are injuries to a man\u2019s person, others to his property, and\nthe former should certainly be punished by corporal punishments.\n\nOffences, therefore, against personal security and liberty are among the\ngreatest of crimes. Under this head fall not only the assassinations and\nthefts of the common people, but those also committed by the nobles and\nmagistrates, whose influence, acting with greater force and to a greater\ndistance, destroys in those subject to them all ideas of justice and\nduty, and gives strength to those ideas of the right of the strongest,\nwhich are equally perilous ultimately to him who exercises no less than\nto him who endures it.\n\nNeither the noble nor the rich man ought to be able to pay a price for\ninjuries committed against the feeble and the poor; else riches, which,\nunder the protection of the laws, are the prize of industry, become the\nnourishment of tyranny. Whenever the laws suffer a man in certain cases\nto cease to be a _person_ and to become a _thing_, there is no liberty;\nfor then you will see the man of power devoting all his industry to\ngather from the numberless combinations of civil life those which the law\ngrants in his favour. This discovery is the magic secret that changes\ncitizens into beasts of burden, and in the hand of the strong man forms\nthe chain wherewith to fetter the actions of the imprudent and the weak.\nThis is the reason why in some governments, that have all the semblance\nof liberty, tyranny lies hidden or insinuates itself unforeseen, in some\ncorner neglected by the legislator, where insensibly it gains force and\ngrows.\n\nMen oppose the strongest barriers against open tyranny, but they see\nnot the imperceptible insect, which gnaws them away, and makes for the\ninvading stream an opening that is all the more sure by very reason of\nits concealment from view.\n\nOf what kind, then, will be the punishments due to the crimes of nobles,\nwhose privileges form so great a part of the laws of different countries?\nI will not here inquire whether this traditional distinction between\nnobles and commons be advantageous in a government, or necessary in a\nmonarchy; nor whether it be true that a nobility forms an intermediate\npower in restraint of the excesses of the two extremes, and not\nrather a caste which, in slavery to itself and to others, confines all\ncirculation of merit and hope to a very narrow circle, like those fertile\nand pleasant oases scattered among the vast sand-deserts of Arabia; nor\nwhether, supposing it to be true that inequality is inevitable and useful\nin society, it be also true that such inequality should subsist between\nclasses rather than individuals, and should remain with one part of the\nbody politic rather than circulate through the whole; whether it should\nrather perpetuate itself than be subject to constant self-destruction and\nrenovation. I will confine myself to the punishments proper for nobles,\naffirming that they should be the same for the greatest citizen as for\nthe least. Every distinction of honour or of riches presupposes, to be\nlegitimate, a prior state of equality, founded on the laws, which regard\nall subjects as equally dependent on themselves. One must suppose the\nmen, who renounced their natural state of despotic independence, to have\nsaid: \u2018Let him who is more industrious than his fellows have greater\nhonours, and let his fame be greater among his successors; let him who\nis more prosperous and honoured hope even to become more so, but let him\nfear no less than other men to break those conditions by virtue of which\nhe is raised above them.\u2019 True it is that such decrees did not emanate in\na convocation of the human race, but such decrees exist in the eternal\nrelations of things; they do not destroy the supposed advantages of a\nnobility, though they prevent its abuses; and they make laws feared,\nby closing every admission to impunity. And if any one shall say that\nthe same punishment inflicted upon a noble and upon a commoner is not\nreally the same, by reason of the diversity of their education, and of\nthe disgrace spread over an illustrious family, I will reply, that the\nsensibility of the criminal is not the measure of punishment, but the\npublic injury, and that this is all the greater when committed by the\nmore highly favoured man; that equality of punishment can only be so when\nconsidered extrinsically, being really different in each individual; and\nthat the disgrace of a family can be removed by public proofs of kindness\non the part of the sovereign towards the innocent family of the criminal.\nAnd who is there but knows that formalities which strike the senses serve\nas reasonings with the credulous and admiring populace?\n\n\n\n\nCHAPTER XXVIII.\n\nOF INJURIES AND OF HONOUR.\n\n\nInjuries that are personal and affect a man\u2019s honour\u2014that is, the fair\nshare of favour that he has a right to expect from others\u2014should be\npunished with disgrace.\n\nThere is a remarkable contradiction between the civil laws, which set\nso jealous and supreme a guard upon individual life and property, and\nthe laws of so-called _honour_, which set opinion above everything. This\nword _honour_ is one of those that have served as the basis for long\nand brilliant argumentations, without any fixed or permanent idea being\nattached to it. How miserable is the condition of human minds, more\ndistinctly cognisant of the remotest and least important ideas about\nthe movements of the heavenly bodies, than of those near and important\nmoral notions, which are ever fluctuating and confused, according as the\nwinds of passion impel them and a well-guided ignorance receives and\ntransmits them! But the seeming paradox will vanish, if one considers,\nthat, as objects become confused when too near the eyes, so the too great\npropinquity of moral ideas easily causes the numerous simple ideas which\ncompose them to become blended together, to the confusion of those clear\nlines of demarcation demanded by the geometrical spirit, which would\nfain measure exactly the phenomena of human sensibility. And the wonder\nwill vanish altogether from the impartial student of human affairs, who\nwill suspect that so great a moral machinery and so many restraints are\nperchance not needed, in order to render men happy and secure.\n\nThis _honour_, then, is one of those complex ideas which are an\naggregate not only of simple ideas but of ideas no less complex than\nthemselves, and which in their various presentments to the mind now admit\nand now omit some of their different component elements, only retaining\nsome few common ideas, just as in algebra several complex quantities\nadmit of a common divisor. To find this common divisor in the different\nideas that men form of _honour_, we must cast a rapid glance over the\nfirst formation of communities.\n\nThe necessity of remedying the disorders caused by the physical despotism\nof each man singly produced the first laws and the first magistrates;\nthis was the end and object of the institution of societies, and this\nend has always been maintained, either in reality or appearance, at the\nhead of all codes, even of those that operated otherwise. But the closer\ncontact of men with one another and the progress of their knowledge\nbrought about an endless series of mutual actions and needs, which\never lay beyond the foresight of the laws and below the actual power\nof individuals. From this epoch began the despotism of opinion, which\nafforded the only means for obtaining from others those benefits and\naverting those evils, for which the laws failed to provide. It is this\nopinion that is the trouble equally of the wise man and the fool; that\nhas raised the semblance of virtue to higher credit than virtue itself;\nthat even makes the rascal turn missionary, because he finds his own\ninterest therein. Hence the favour of men became not only useful but\nnecessary, if a man would not fall below the general level. Hence, not\nonly does the ambitious man seek after such favour as useful to himself,\nand the vain man go begging for it as a proof of his merit, but the man\nof honour also may be seen to require it as a necessity. This _honour_ is\na condition that very many men attach to their own existence. Born after\nthe formation of society, it could not be placed in the general deposit;\nit is rather a momentary return to the state of nature, a momentary\nwithdrawal of one\u2019s self from the dominion of those laws which, under the\ncircumstances, fail to afford the sufficient defence required of them.\n\nHence both in the state of extreme political liberty and in that of\nextreme political subjection the ideas of honour disappear or get\nperfectly confused with others. For in the former the despotism of the\nlaws renders the pursuit of the favour of others of no avail; and in\nthe latter state the despotism of men, by destroying civil existence,\nreduces everybody to a precarious and temporary personality. Honour,\ntherefore, is one of the fundamental principles of those monarchies that\nare a mitigated form of despotism, being to them what revolutions are to\ndespotic States, namely, a momentary return to the state of nature, and a\nreminder to the chief ruler of the condition of primitive equality.\n\n\n\n\nCHAPTER XXIX.\n\nDUELS.\n\n\nFrom this necessity of the favour of other people arose private duels,\nwhich sprang up precisely in an anarchical state of the laws. It is said\nthey were unknown to antiquity, perhaps because the ancients did not\nmeet suspiciously armed in the temples, the theatres, or with friends;\nperhaps because the duel was an ordinary and common sight, presented to\nthe people by gladiators, who were slaves or low people, and freemen\ndisdained to be thought and called private gladiators. In vain has it\nbeen sought to extirpate the custom by edicts of death against any man\naccepting a challenge, for it is founded on that which some men fear\nmore than death; since without the favour of his fellows the man of\nhonour foresees himself exposed either to become a merely solitary being,\na condition insufferable to a sociable man, or to become the butt of\ninsults and disgrace which, from their constant operation, prevail over\nthe fear of punishment. Why is it that the lower orders do not for the\nmost part fight duels like the great? Not only because they are disarmed,\nbut because the need of the favour of others is less general among the\npeople than among those who, in higher ranks, regard themselves with\ngreater suspicion and jealousy.\n\nIt is not useless to repeat what others have written, namely, that the\nbest method of preventing this crime is to punish the aggressor\u2014in other\nwords, the man who gives rise to the duel\u2014declaring him to be innocent\nwho without his own fault has been constrained to defend that which\nexisting laws do not assure to him, that is, opinion.\n\n\n\n\nCHAPTER XXX.\n\nTHEFTS.\n\n\nThefts without violence should be punished by fine. He who enriches\nhimself at another\u2019s expense ought to suffer at his own. But, as theft is\ngenerally only the crime of wretchedness and despair, the crime of that\nunhappy portion of mankind to whom the right of property (a terrible,\nand perhaps not necessary right[67]) has left but a bare subsistence;\nand as pecuniary penalties increase the number of criminals above the\nnumber of crimes, depriving the innocent of their bread in order to give\nit to the wicked, the fittest punishment will be that kind of servitude\nwhich alone can be called just, namely, the temporary servitude of a\nman\u2019s labour and person for the compensation of society, the personal\nand absolute dependence due from a man who has essayed to exercise\nan unjust superiority over the social compact. But when the theft is\naccompanied with violence, the punishment also should be a combination\nof corporal and servile punishment. Some previous writers have shown the\nevident abuse that arises from not distinguishing punishments for thefts\nof violence from those for thefts of cunning, thus making an absurd\nequation between a large sum of money and the life of a man. For they\nare crimes of a different nature; and in politics, as in mathematics,\nthis axiom is most certain, that between heterogeneous quantities the\nterms of difference are infinite; but it is never superfluous to repeat\nwhat has hardly ever been put into practice. Political machinery more\nthan anything else retains the motion originally given to it, and is the\nslowest to adapt itself to a fresh one.\n\n\n\n\nCHAPTER XXXI.\n\nSMUGGLING.\n\n\nSmuggling is a real crime against the sovereign and the nation; but its\npunishment should not be one of disgrace, because its commission incurs\nno disgrace in public opinion.\n\nBut why does this crime never entail disgrace upon its author, seeing\nthat it is a theft against the prince, and consequently against the\nnation? I answer, that offences which men do not consider can be\ncommitted against themselves do not interest them enough to produce\npublic indignation against their perpetrator. Smuggling is an offence\nof this character. Men in general, on whom remote consequences make\nvery feeble impressions, do not perceive the harm that smuggling can\ndo them, nay, often they enjoy a present advantage from it. They only\nperceive the injury done to the sovereign; they are not interested,\ntherefore, in withdrawing their favour from a smuggler as much as they\nare in doing so from a man who commits a theft in private life, who\nforges a signature, or brings upon them other evils. The principle is\nself-evident, that every sensitive being only interests himself in the\nevils which he knows. This crime arises from the law itself; since the\nbenefit it promises increases with the increase of the import duty, and\ntherefore the temptation and the facility of committing it increases with\nthe circumference of territory to be guarded and the small size of the\nprohibited wares. The penalty of losing both the prohibited goods, and\nwhatever effects are found with them, is most just; but its efficacy will\nbe greater in proportion as the import duty is lower, because men only\nincur risks relative to the advantage derivable from the prosperous issue\nof their undertaking.\n\nBut ought such a crime to be let go unpunished in the case of a man who\nhas no effects to lose? No: there are kinds of smuggling of so much\nimportance to the revenue (which is so essential and so difficult a part\nof a good system of laws), that such a crime deserves a considerable\npunishment, even imprisonment or servitude; but imprisonment and\nservitude conformable to the nature of the crime itself. For example,\nthe prison of the tobacco-smuggler ought not to be the same as that of\nthe assassin or the thief; and the labours of the former, limited to the\nwork and service of the very treasury he wished to defraud, will be the\npunishments most conformable to the nature of his crime.\n\n\n\n\nCHAPTER XXXII.\n\nOF DEBTORS.\n\n\nThe good faith of contracts and the security of commerce compel the\nlegislator to assure to creditors the persons of insolvent debtors. But\nI think it important to distinguish the fraudulent from the innocent\nbankrupt, the former of whom should receive the same punishment as that\nassigned to false coiners, since it is no greater crime to falsify a\npiece of coined money, the pledge of men\u2019s mutual obligations, than\nto falsify those obligations themselves. But the innocent bankrupt\u2014he\nwho, after a searching inquiry, has proved before his judges that\nthe wickedness or misfortune of some one else, or the inevitable\nvicissitudes of human prudence, have despoiled him of his substance\u2014for\nwhat barbarous reason ought such an one to be thrown into prison, and\ndeprived of the only poor benefit that remains to him, a barren liberty,\nin order to suffer the agonies of the really guilty, and, in despair at\nhis ruined honesty, to repent perhaps of that innocence, by which he\nlived peacefully under the protection of those laws that it was not in\nhis power not to offend against? Laws, too, dictated by the powerful\nby reason of their rapacity, and endured by the feeble by reason of\nthat hope, which generally glimmers in the human heart, and leads us\nto believe that unfavourable contingencies are reserved for others,\nfavourable ones for ourselves! Men left to their natural feelings love\ncruel laws, however much, as subject to them themselves, it might be for\ntheir individual interest that they should be mitigated; because their\nfear of being injured by others is greater than their desire to inflict\ninjuries themselves.\n\nTo return to the innocent bankrupt. Granting that his obligation should\nnot be extinguishable by anything short of total payment; granting that\nhe should not be suffered to withdraw from it without the consent of the\nparties interested, nor to transfer under the dominion of other laws his\nindustry, which should perforce be employed, under penalties, to enable\nhim to satisfy his creditors in proportion to his profits; what fair\npretext, I ask, can there be, such as the security of commerce or the\nsacred right of property, to justify the deprivation of his liberty? Such\na deprivation is only of use, when it is sought to discover the secrets\nof a supposed innocent bankrupt by the evils of servitude, a most unusual\ncircumstance where a rigorous inquiry is instituted. I believe it to be a\nmaxim in legislation, that the amount of political inconveniences varies\ndirectly in proportion to the injury they do the public, and inversely in\nproportion to the difficulty of their proof.\n\nIt would be possible to distinguish a case of fraud from a grave fault, a\ngrave fault from a light one, and this again from perfect innocence; then\nto affix to the first the penalties due for crimes of falsification; to\nthe second lesser penalties, but with the loss of personal liberty; and,\nreserving for the last degree the free choice of the means of recovery,\nto deprive the third degree of such liberty, whilst leaving it to a man\u2019s\ncreditors. But the distinction between grave and light should be fixed by\nthe blind impartiality of the laws, not by the dangerous and arbitrary\nwisdom of a judge. The fixings of limits are as necessary in politics as\nin mathematics, equally in the measurement of the public welfare as in\nthe measurement of magnitudes.[68]\n\nHow easily might the farseeing legislator hinder a large part of culpable\nbankruptcy, and relieve the misfortunes of the industrious and innocent!\nThe public and open registration of all contracts; freedom to every\ncitizen to consult them in well-kept documents; a public bank formed by\nwisely-apportioned taxes upon prosperous commerce, and intended for the\ntimely relief of any unfortunate and innocent member of the company;\u2014such\nmeasures would have no real drawback and might produce numberless\nadvantages. But easy, simple, and great laws, which await but the signal\nof the legislator, in order to scatter riches and strength through a\nnation\u2014laws which would be celebrated from generation to generation in\nhymns of gratitude\u2014are either the least thought of or the least desired\nof all. An uneasy and petty spirit, the timid prudence of the present\nmoment, and a circumspect stiffness against innovations, master the\nfeelings of those who govern the complex actions of mankind.\n\n\n\n\nCHAPTER XXXIII.\n\nOF THE PUBLIC TRANQUILLITY.\n\n\nLastly, among the crimes of the third kind are especially those which\ndisturb the public peace and civic tranquillity; such as noises and riots\nin the public streets, which were made for the convenience of men and\ntraffic, or fanatical sermons that excite the easily roused passions of\nthe curious multitude. For their passions gather force from the number\nof hearers, and more from a certain obscure and mysterious enthusiasm,\nthan from clear and quiet reasoning, which never has any influence over a\nlarge mass of men.\n\nThe lighting of a city by night at the public expense; the distribution\nof guards in the different quarters; simple moral discourses on\nreligion, but only in the silent and holy quiet of churches, protected\nby public authority; speeches on behalf of private and public interests\nin national assemblies, parliaments, or wherever else the majesty of\nsovereignty resides\u2014all these are efficacious means for preventing the\ndangerous condensation of popular passions. These means are a principal\nbranch of that magisterial vigilance which the French call _police_;\nbut if this is exercised by arbitrary laws, not laid down in a code of\ngeneral circulation, a door is opened to tyranny, which ever surrounds\nall the boundaries of political liberty. I find no exception to this\ngeneral axiom, that \u2018Every citizen ought to know when his actions\nare guilty or innocent.\u2019 If censors, and arbitrary magistrates in\ngeneral, are necessary in any government, it is due to the weakness\nof its constitution, and is foreign to the nature of a well organised\ngovernment. More victims have been sacrificed to obscure tyranny by the\nuncertainty of their lot than by public and formal cruelty, for the\nlatter revolts men\u2019s minds more than it abases them. The true tyrant\nalways begins by mastering opinion, the precursor of courage; for the\nlatter can only show itself in the clear light of truth, in the fire of\npassion, or in ignorance of danger.\n\n\n\n\nCHAPTER XXXIV.\n\nOF POLITICAL IDLENESS.\n\n\nWise governments suffer not political idleness in the midst of work and\nindustry. I mean by political idleness that existence which contributes\nnothing to society either by its work or by its wealth; which gains\nwithout ever losing; which, stupidly admired and reverenced by the\nvulgar, is regarded by the wise man with disdain, and with pity for the\nbeings who are its victims; which, being destitute of that stimulus of\nan active life, the necessity of preserving or increasing the store of\nworldly goods, leaves to the passions of opinion, not the least strong\nones, all their energy. This kind of idleness has been confused by\naustere declaimers with that of riches, gathered by industry; but it is\nnot for the severe and narrow virtue of some censors, but for the laws,\nto define what is punishable idleness. He is not guilty of political\nidleness, who enjoys the fruits of the virtues or vices of his ancestors\nand sells in exchange for his pleasures bread and existence to the\nindustrious poor, who carry on peacefully the silent war of industry\nagainst wealth, instead of by force a war uncertain and sanguinary. The\nlatter kind of idleness is necessary and useful, in proportion as society\nbecomes wider and its government more strict.\n\n\n\n\nCHAPTER XXXV.\n\nSUICIDE AND ABSENCE.\n\n\nSuicide is a crime to which a punishment properly so called seems\ninadmissible, since it can only fall upon the innocent or else upon a\ncold and insensible body. If the latter mode of punishing the crime\nmakes no more impression on the living than would be made by inflicting\nviolence on a statue, the other mode is unjust and tyrannical, inasmuch\nas political freedom necessarily presupposes the purely personal\nnature of punishment. Men love life only too much, and everything\nthat surrounds them confirms them in this love. The seductive image of\npleasure, and hope, that sweetest illusion of mortals, for the sake of\nwhich they swallow large draughts of evil mixed with a few drops of\ncontentment, are too attractive, for one ever to fear, that the necessary\nimpunity of such a crime should exercise any general influence. He who\nfears pain, obeys the laws; but death puts an end in the body to all the\nsources of pain. What, then, will be the motive which shall restrain the\ndesperate hand of the suicide?\n\nWhoever kills himself does a lesser evil to society than he who for\never leaves the boundaries of his country, for whilst the former leaves\ntherein all his substance, the latter transports himself together\nwith part of his property. Nay, if the power of a community consists\nin the number of its members, the man who withdraws himself to join\na neighbouring nation does twice as great an injury as he who simply\nby death deprives society of his existence. The question, therefore,\nreduces itself to this: whether the leaving to each member of a nation\na perpetual liberty to absent himself from it be advantageous or\ndetrimental.\n\nNo law ought to be promulgated that has not force to back it, or that the\nnature of things deprives of validity; and as minds are ruled by opinion,\nwhich itself follows the slow and indirect impressions of legislation,\nwhilst it resists those that are direct and violent, the most salutary\nlaws become infected with the contempt felt for useless laws, and are\nregarded rather as obstacles to be surmounted than as the deposit of the\npublic welfare.\n\nMoreover, if, as was said, our feelings are limited in quantity, the\ngreater respect men may have for things outside the laws, the less will\nremain to them for the laws themselves. From this principle the wise\nadministrator of the public happiness may draw some useful consequences,\nthe exposition of which would lead me too far from my subject, which is\nto demonstrate the uselessness of making a prison of the State. A law\nwith such an object is useless, because, unless inaccessible rocks or\nan unnavigable sea separate a country from all others, how will it be\npossible to close all the points of its circumference and keep guard over\nthe guardians themselves? A man who transports everything he has with\nhim, when he has done so cannot be punished. Such a crime once committed\ncan no longer be punished, and to punish it beforehand would be to punish\nmen\u2019s wills, not their actions, to exercise command over their intention,\nthe freest part of human nature, and altogether independent of the\ncontrol of human laws. The punishment of an absent man in the property he\nleaves behind him would ruin all international commerce, to say nothing\nof the facility of collusion, which would be unavoidable, except by a\ntyrannical control of contracts. And his punishment on his return, as a\ncriminal, would prevent the reparation of the evil done to society, by\nmaking all removals perpetual. The very prohibition to leave a country\naugments people\u2019s desire to do so, and is a warning to foreigners not to\nenter it.\n\nWhat should we think of a government that has no other means than fear\nfor keeping men in a country, to which they are naturally attached from\nthe earliest impressions of their infancy? The surest way of keeping them\nin their country is to augment the relative welfare of each of them. As\nevery effort should be employed to turn the balance of commerce in our\nown favour, so it is the greatest interest of a sovereign and a nation,\nthat the sum of happiness, compared with that of neighbouring nations,\nshould be greater at home than elsewhere. The pleasures of luxury are\nnot the principal elements in this happiness, however much they may be\na necessary remedy to that inequality which increases with a country\u2019s\nprogress, and a check upon the tendency of wealth to accumulate in the\nhands of a single ruler.[69]\n\nBut commerce and the interchange of the pleasures of luxury have this\ndrawback, that however many persons are engaged in their production, they\nyet begin and end with a few, the great majority of men only enjoying\nthe smallest share of them, so that the feeling of misery, which depends\nmore on comparison than on reality, is not prevented. But the principal\nbasis of this happiness I speak of is personal security and liberty under\nthe limitations of the law; with these the pleasures of luxury favour\npopulation, and without them they become the instrument of tyranny. As\nthe noblest wild beasts and the freest birds remove to solitudes and\ninaccessible forests, leaving the fertile and smiling plains to the wiles\nof man, so men fly from pleasures themselves when tyranny acts as their\ndistributor.\n\nIt is, then, proved that the law which imprisons subjects in their own\ncountry is useless and unjust. The punishment, therefore, of suicide is\nequally so; and consequently, although it is a fault punishable by God,\nfor He alone can punish after death, it is not a crime in the eyes of\nmen, for the punishment they inflict, instead of falling on the criminal\nhimself, falls on his family. If anyone objects, that such a punishment\ncan nevertheless draw a man back from his determination to kill himself,\nI reply, that he who calmly renounces the advantages of life, who hates\nhis existence here below to such an extent as to prefer to it an eternity\nof misery, is not likely to be moved by the less efficacious and more\nremote consideration of his children or his relations.\n\n\n\n\nCHAPTER XXXVI.\n\nCRIMES OF DIFFICULT PROOF.\n\n\nThere are some crimes which, are at the same time frequent in society and\nyet difficult to prove, as adultery, pederasty, infanticide.\n\nAdultery is a crime which, politically considered, derives its force and\ndirection from two causes, namely, from the variable laws in force among\nmankind, and from that strongest of all attractions which draws one sex\ntowards the other.[70]\n\nHad I to address nations still destitute of the light of religion, I\nwould say that there is yet another considerable difference between\nadultery and other crimes. For it springs from the abuse of a constant\nand universal human impulse, an impulse anterior to, nay, the cause of\nthe institution of society; whereas other crimes, destructive of society,\nderive their origin rather from momentary passions than from a natural\nimpulse. To anyone cognisant of history and his kind, such an impulse\nwill seem to be equivalent in the same climate to a constant quantity;\nand if this be so, those laws and customs which seek to diminish the\nsum-total will be useless or dangerous, because their effect will be to\nburthen one half of humanity with its own needs and those of others;\nbut those laws, on the contrary, will be the wisest, which following,\nso to speak, the gentle inclination of the plain, divide the total\namount, causing it to ramify into so many equal and small portions,\nthat aridity or overflowing are equally prevented everywhere. Conjugal\nfidelity is always proportioned to the number and to the freedom of\nmarriages. Where marriages are governed by hereditary prejudices, or\nbound or loosened by parental power, there the chains are broken by\nsecret intrigue, in despite of ordinary morality, which, whilst conniving\nat the causes of the offence, makes it its duty to declaim against the\nresults. But there is no need of such reflections for the man who,\nliving in the light of true religion, has higher motives to correct the\nforce of natural effects. Such a crime is of so instantaneous and secret\ncommission, so concealed by the very veil the laws have drawn round it\n(a veil necessary, indeed, but fragile, and one that enhances, instead\nof diminishing, the value of the desired object), the occasions for it\nare so easy, and the consequences so doubtful, that the legislator has\nit more in his power to prevent than to punish it. As a general rule,\nin every crime which by its nature must most frequently go unpunished,\nthe penalty attached to it becomes an incentive. It is a quality of our\nimagination, that difficulties, if they are not insurmountable nor too\ndifficult, relatively to the mental energy of the particular person,\nexcite the imagination more vividly, and place the object desired in\nlarger perspective; for they serve as it were as so many barriers to\nprevent an erratic and flighty fancy from quitting hold of its object;\nand, while they compel the imagination to consider the latter in all its\nbearings, it attaches itself more closely to the pleasant side, to which\nour mind most naturally inclines, than to the painful side, which it\nplaces at a distance.\n\nPederasty, so severely punished by the laws, and so readily subjected\nto the tortures that triumph over innocence, is founded less on the\nnecessities of man, when living in a state of isolation and freedom,\nthan on his passions when living in a state of society and slavery. It\nderives its force not so much from satiety of pleasure as from the system\nof education now in vogue, which, beginning by making men useless to\nthemselves in order to make them useful to others, causes, by its too\nstrict seclusion, a waste of all vigorous development, and accelerates\nthe approach of old age.\n\nInfanticide equally is the result of the unavoidable dilemma in which\na woman is placed who from weakness or by violence has fallen. Finding\nherself placed between the alternative of infamy on the one side, and\nthe death of a being insentient of its pains on the other, how can she\nfail to prefer the latter to the infallible misery awaiting both herself\nand her unhappy offspring? The best way to prevent this crime would be\nto give efficient legal protection to weakness against tyranny, which\nexaggerates those vices that cannot be hidden by the cloak of virtue.\n\nI do not pretend to diminish the just wrath these crimes deserve; but, in\nindicating their sources, I think myself justified in drawing one general\nconclusion, and that is, that no punishment for a crime can be called\nexactly just\u2014that is, necessary\u2014so long as the law has not adopted the\nbest possible means, in the circumstances of a country, to prevent the\ncrimes it punishes.\n\n\n\n\nCHAPTER XXXVII.\n\nOF A PARTICULAR KIND OF CRIME.\n\n\nThe reader of this treatise will perceive that I have omitted all\nreference to a certain class of crime, which has deluged Europe with\nhuman blood; a crime which raised those fatal piles, where living human\nbodies served as food for the flames, and where the blind multitude\nsought a pleasant spectacle and a sweet harmony from the low dull groans,\nemitted by wretched sufferers from volumes of black smoke, the smoke\nof human limbs, whilst their bones and still palpitating entrails were\nscorched and consumed by the flames. But reasonable men will see that\nthe place, the age, and the subject suffer me not to inquire into the\nnature of such a crime. It would be too long and remote from my subject\nto show, how a perfect uniformity of thought ought, contrary to the\npractice of many countries, to be a necessity in a State; how opinions,\nwhich only differ by the most subtle and imperceptible degrees, and are\naltogether beyond the reach of human intelligence, can yet convulse\nsociety, when one of them is not legally authorised in preference to the\nothers; and how the nature of opinions is such, that, whilst some become\nclearer by virtue of their conflict and opposition, (those that are true\nfloating and surviving, but those that are false sinking to oblivion,)\nothers again, with no inherent self-support, require to be clothed with\nauthority and power. Too long would it be to prove, that howsoever\nhateful may seem the government of force over human minds, with no other\ntriumphs to boast of but dissimulation and debasement, and howsoever\ncontrary it may seem to the spirit of gentleness and fraternity,\ncommanded alike by reason and the authority we most venerate, it is yet\nnecessary and indispensable. All this should be taken as clearly proved\nand conformable to the true interests of humanity, if there be anyone\nwho, with recognised authority, acts accordingly. I speak only of crimes\nthat spring from the nature of humanity and the social compact; not of\nsins, of which even the temporal punishments should be regulated by other\nprinciples than those of a narrow philosophy.\n\n\n\n\nCHAPTER XXXVIII.\n\nFALSE IDEAS OF UTILITY.\n\n\nFalse ideas of utility entertained by legislators are one source of\nerrors and injustice. It is a false idea of utility which thinks more of\nthe inconvenience of individuals than of the general inconvenience; which\ntyrannises over men\u2019s feelings, instead of arousing them into action;\nwhich says to Reason, \u2018Be thou subject.\u2019 It is a false idea of utility\nwhich sacrifices a thousand real advantages for one imaginary or trifling\ndrawback; which would deprive men of the use of fire because it burns\nor of water because it drowns; and whose only remedy for evils is the\nentire destruction of their causes. Of such a kind are laws prohibiting\nthe wearing of arms, for they only disarm those who are not inclined nor\nresolved to commit crimes, whilst those who have the courage to violate\nthe most sacred laws of humanity, the most important in the law-code,\nare little likely to be induced to respect those lesser and purely\narbitrary laws, which are easier to contravene with impunity; and the\nstrict observance of which would imply the destruction of all personal\nliberty, (that liberty dearest to the enlightened legislator and to men\ngenerally,) subjecting the innocent to vexations which only the guilty\ndeserve. These laws, whilst they make still worse the position of the\nassailed, improve that of their assailants; they increase rather than\ndiminish the number of homicides, owing to the greater confidence with\nwhich an unarmed man may be attacked than an armed one. They are not so\nmuch preventive of crimes as fearful of them, due as they are to the\nexcitement roused by particular facts, not to any reasoned consideration\nof the advantages or disadvantages of a general decree. Again, it is\na false idea of utility, which would seek to impart to a multitude of\nintelligent beings the same symmetry and order that brute and inanimate\nmatter admits of; which neglects present motives, the only constantly\npowerful influences with the generality of men, to give force to remote\nand future ones, the impression of which is very brief and feeble,\nunless a force of imagination beyond what is usual makes up, by its\nmagnifying power, for the object\u2019s remoteness. Lastly, it is a false idea\nof utility, which, sacrificing the thing to the name, distinguishes the\npublic good from that of every individual member of the public. There is\nthis difference between the state of society and the state of nature,\nthat in the latter a savage only commits injuries against others with a\nview to benefit himself, whilst in the former state men are sometimes\nmoved by bad laws to injure others without any corresponding benefit\nto themselves. The tyrant casts fear and dread into the minds of his\nslaves, but they return by repercussion with all the greater force to\ntorment his own breast. The more confined fear is in its range, so much\nthe less dangerous is it to him who makes it the instrument of his\nhappiness; but the more public it is and the larger the number of people\nit agitates, so much the more likely is it that there will be some rash,\nsome desperate, or some clever and bold man who will try to make use of\nothers for his own purpose, by raising in them hopes, that are all the\nmore pleasant and seductive as the risk incurred in them is spread over\na greater number, and as the value attached by the wretched to their\nexistence diminishes in proportion to their misery. This is the reason\nwhy offences ever give rise to fresh ones: that hatred is a feeling much\nmore durable than love, inasmuch as it derives its force from the very\ncause that weakens the latter, namely, from the continuance of the acts\nthat produce it.\n\n\n\n\nCHAPTER XXXIX.\n\nOF FAMILY SPIRIT.\n\n\nSuch fatal and legalised iniquities as have been referred to have been\napproved of by even the wisest men and practised by even the freest\nrepublics, owing to their having regarded society rather as an aggregate\nof families than as one of individuals. Suppose there to be 100,000\nindividuals, or 20,000 families, of five persons each, including its\nrepresentative head: if the association is constituted by families, it\nwill consist of 20,000 men and 80,000 slaves; if it be an association\nof individuals, it will consist of 100,000 citizens, and not a single\nslave. In the first case there will be a republic, formed of 20,000\nlittle sovereignties; in the second the republican spirit will breathe,\nnot only in the market-places and meetings of the people, but also within\nthe domestic walls, wherein lies so great a part of human happiness or\nmisery. In the first case, also, as laws and customs are the result\nof the habitual sentiments of the members of the republic\u2014that is, of\nthe heads of families\u2014the monarchical spirit will gradually introduce\nitself, and its effects will only be checked by the conflicting interests\nof individuals, not by a feeling that breathes liberty and equality.\nFamily spirit is a spirit of detail and confined to facts of trifling\nimportance. But the spirit which regulates communities is master of\ngeneral principles, overlooks the totality of facts, and combines them\ninto kinds and classes, of importance to the welfare of the greater\nnumber. In the community of families sons remain in the power of the\nhead of the family so long as he lives, and are obliged to look forward\nto his death for an existence dependent on the laws alone. Accustomed\nto submission and fear in the freshest and most vigorous time of life,\nwhen their feelings are less modified by that timidity, arising from\nexperience, which men call moderation, how shall they withstand those\nobstacles in the way of virtue which vice ever opposes, in that feeble\nand failing period of life when despair of living to see the fruit of\ntheir labours hinders them from making vigorous changes?\n\nWhen the community is one of individuals, the subordination that prevails\nin the family prevails by agreement, not by compulsion; and the sons, as\nsoon as their age withdraws them from their state of natural dependence,\narising from their feebleness and their need of education and protection,\nbecome free members of the domestic commonwealth, subjecting themselves\nto its head, in order to share in its advantages, as free men do by\nsociety at large. In the other condition the sons\u2014that is, the largest\nand most useful part of a nation\u2014are placed altogether at the mercy of\ntheir fathers; but in this one there is no enjoined connection between\nthem, beyond that sacred and inviolable one of the natural ministration\nof necessary aid, and that of gratitude for benefits received, which is\nless often destroyed by the native wickedness of the human heart than by\na law-ordained and ill-conceived state of subjection.\n\nSuch contradictions between the laws of a family and the fundamental\nlaws of a State are a fertile source of other contradictions between\npublic and private morality, giving rise consequently to a perpetual\nconflict in every individual mind. For whilst private morality inspires\nfear and subjection, public morality teaches courage and freedom; whilst\nthe former inculcates the restriction of well-doing to a small number\nof persons indiscriminately, the latter inculcates its extension to all\nclasses of men; and whilst the one enjoins the constant sacrifice of self\nto a vain idol, called \u2018the good of the family\u2019 (which is frequently not\nthe good of any single member that composes it), the other teaches men to\nbenefit themselves, provided they break not the laws, and incites them,\nby the reward of enthusiasm, which is the precursor of their action, to\nsacrifice themselves to the good of their country. Such contradictions\nmake men scorn to follow virtue, which they find so complicated and\nconfused, and at that distance from them, which objects, both moral\nand physical, derive from their obscurity. How often it happens that\na man, in reflecting on his past actions, is astonished at finding\nhimself dishonest. The larger society grows, the smaller fraction of the\nwhole does each member of it become, and the more is the feeling of the\ncommonwealth diminished, unless care be taken by the laws to reinforce\nit. Societies, like human bodies, have their circumscribed limits,\nextension beyond which involves inevitably a disturbance of their\neconomy. The size of a State ought apparently to vary inversely with the\nsensibility of its component parts; otherwise, if both increase together,\ngood laws will find, in the very benefit they have effected, an obstacle\nto the prevention of crimes. Too large a republic can only save itself\nfrom despotism by a process of subdivision, and a union of the parts into\nso many federative republics. But how effect this, save by a despotic\ndictator with the courage of Sylla and as much genius for construction\nas he had for destruction? If such a man be ambitious, the glory of all\nthe ages awaits him; and if he be a philosopher, the blessings of his\nfellow-citizens will console him for the loss of his authority, even\nshould he not become indifferent to their ingratitude. In proportion as\nthe feelings which unite us to our own nation are weakened, do those for\nthe objects immediately around us gain in strength; and it is for this\nreason that under the severest despotism the strongest friendships are to\nbe found, and that the family virtues, ever of an exalted character, are\neither the most common or the only ones. It is evident, therefore, how\nlimited have been the views of the great majority of legislators.\n\n\n\n\nCHAPTER XL.\n\nOF THE TREASURY.\n\n\nThere was a time when nearly all penalties were pecuniary. Men\u2019s crimes\nwere the prince\u2019s patrimony; attempts against the public safety were\nan object of gain, and he whose function it was to defend it found his\ninterest in seeing it assailed. The object of punishment was then a\nsuit between the treasury, which exacted the penalty, and the criminal:\nit was a civil business, a private rather than a public dispute, which\nconferred upon the treasury other rights than those conferred upon it by\nthe calls of the public defence, whilst it inflicted upon the offender\nother grievances than those he had incurred by the necessity of example.\nThe judge was, therefore, an advocate for the treasury rather than an\nimpartial investigator of the truth, an agent for the Chancellor of\nthe Exchequer rather than the protector and minister of the laws. But\nas in this system to confess a fault was the same thing as to confess\noneself a debtor to the treasury, that being the object of the criminal\nprocedure in those days, so the confession of a crime, and a confession\nso managed as to favour and not to hurt fiscal interests, became and\nstill remains (effects always outlasting their causes so long) the\ncentre point of all criminal procedure. Without such confession a\ncriminal convicted by indubitable proofs will incur a penalty less than\nthe one legally attached to his crime; and without it he will escape\ntorture for other crimes of the same sort which he may have committed.\nWith it, on the other hand, the judge becomes master of a criminal\u2019s\nperson, to lacerate him by method and formality, in order to get from\nhim as from so much stock all the profit he can. Given the fact of the\ncrime as proved, confession affords a convincing proof; and, to make this\nproof still less open to doubt, it is forcibly exacted by the agonies and\ndespair of physical pain; whilst at the same time a confession that is\nextra-judicial, that is tendered calmly and indifferently, and without\nthe overpowering fears of a trial by torture, is held insufficient for a\nverdict of guilt. Inquiries and proofs, which throw light upon the fact,\nbut which weaken the claims of the treasury, are excluded; nor is it out\nof consideration for his wretchedness and weakness that a criminal is\nsometimes spared from torture, but out of regard for the claims which\nthis entity, now mythical and inconceivable, might lose. The judge\nbecomes the enemy of the accused, who stands in chains before him, the\nprey of misery, of torments, and the most terrible future; he does not\nseek to find the truth of a fact, but to find the crime in the prisoner,\ntrying to entrap him, and thinking it to the loss of his own credit if\nhe fail to do so, and to the detriment of that infallibility which men\npretend to possess about everything. The evidence that justifies a man\u2019s\nimprisonment rests with the judge; in order that a man may prove himself\ninnocent, he must first be declared guilty: that is called an _offensive\nprosecution_; and such are criminal proceedings in nearly every part of\nenlightened Europe, in the eighteenth century. The real prosecution, the\n_informative_ one\u2014that is, the indifferent inquiry into a fact, such\nas reason enjoins, such as military codes employ, and such as is used\neven by Asiatic despotism in trivial and unimportant cases\u2014is of very\nscant use in the tribunals of Europe. What a complex maze of strange\nabsurdities, doubtless incredible to a more fortunate posterity! Only the\nphilosophers of that time will read in the nature of man the possible\nactuality of such a system as now exists.\n\n\n\n\nCHAPTER XLI.\n\nTHE PREVENTION OF CRIMES\u2014OF KNOWLEDGE\u2014MAGISTRATES\u2014REWARDS\u2014EDUCATION.\n\n\nIt is better to prevent crimes than to punish them. This is the chief\naim of every good system of legislation, which is the art of leading men\nto the greatest possible happiness or to the least possible misery,\naccording to calculation of all the goods and evils of life. But the\nmeans hitherto employed for this end are for the most part false and\ncontrary to the end proposed. It is impossible to reduce the turbulent\nactivity of men to a geometrical harmony without any irregularity\nor confusion. As the constant and most simple laws of nature do not\nprevent aberrations in the movements of the planets, so, in the infinite\nand contradictory attractions of pleasure and pain, disturbances and\ndisorder cannot be prevented by human laws. Yet this is the chimera\nthat narrow-minded men pursue, when they have power in their hands. To\nprohibit a number of indifferent acts is not to prevent the crimes that\nmay arise from them, but it is to create new ones from them; it is to\ngive capricious definitions of virtue and vice which are proclaimed as\neternal and immutable in their nature. To what should we be reduced if\neverything had to be forbidden us which might tempt us to a crime? It\nwould be necessary to deprive a man of the use of his senses. For one\nmotive that drives men to commit a real crime there are a thousand that\ndrive them to the commission of those indifferent acts which are called\ncrimes by bad laws; and if the likelihood of crimes is proportioned to\nthe number of motives to commit them, an increase of the field of crimes\nis an increase of the likelihood of their commission. The majority\nof laws are nothing but privileges, or a tribute paid by all to the\nconvenience of some few.\n\nWould you prevent crimes, then cause the laws to be clear and simple,\nbring the whole force of a nation to bear on their defence, and suffer no\npart of it to be busied in overthrowing them. Make the laws to favour not\nso much classes of men as men themselves. Cause men to fear the laws and\nthe laws alone. Salutary is the fear of the law, but fatal and fertile in\ncrime is the fear of one man of another. Men as slaves are more sensual,\nmore immoral, more cruel than free men; and, whilst the latter give their\nminds to the sciences or to the interests of their country, setting\ngreat objects before them as their model, the former, contented with the\npassing day, seek in the excitement of libertinage a distraction from\nthe nothingness of their existence, and, accustomed to an uncertainty\nof result in everything, they look upon the result of their crimes\nas uncertain too, and so decide in favour of the passion that tempts\nthem. If uncertainty of the laws affects a nation, rendered indolent\nby its climate, its indolence and stupidity is thereby maintained and\nincreased; if it affects a nation, which though fond of pleasure is\nalso full of energy, it wastes that energy in a number of petty cabals\nand intrigues, which spread distrust in every heart, and make treachery\nand dissimulation the foundation of prudence; if, again, it affects a\ncourageous and brave nation, the uncertainty is ultimately destroyed,\nafter many oscillations from liberty to servitude, and from servitude\nback again to liberty.\n\nWould you prevent crimes, then see that enlightenment accompanies\nliberty. The evils that flow from knowledge are in inverse ratio to its\ndiffusion; the benefits directly proportioned to it. A bold impostor, who\nis never a commonplace man, is adored by an ignorant people, despised\nby an enlightened one. Knowledge, by facilitating comparisons between\nobjects and multiplying men\u2019s points of view, brings many different\nnotions into contrast, causing them to modify one another, all the\nmore easily as the same views and the same difficulties are observed\nin others. In the face of a widely diffused national enlightenment the\ncalumnies of ignorance are silent, and authority, disarmed of pretexts\nfor its manifestation, trembles; whilst the rigorous force of the laws\nremains unshaken, no one of education having any dislike to the clear and\nuseful public compacts which secure the common safety, when he compares\nthe trifling and useless liberty sacrificed by himself with the sum-total\nof all the liberties sacrificed by others, who without the laws might\nhave been hostile to himself. Whoever has a sensitive soul, when he\ncontemplates a code of well-made laws, and finds that he has only lost\nthe pernicious liberty of injuring others, will feel himself constrained\nto bless the throne and the monarch that sits upon it.\n\nIt is not true that the sciences have always been injurious to mankind;\nwhen they were so, it was an inevitable evil. The multiplication of\nthe human race over the face of the earth introduced war, the ruder\narts, and the first laws, mere temporary agreements which perished with\nthe necessity that gave rise to them. This was mankind\u2019s primitive\nphilosophy, the few elements of which were just, because the indolence\nand slight wisdom of their framers preserved them from error. But with\nthe multiplication of men there went ever a multiplication of their\nwants. Stronger and more lasting impressions were, therefore, needed,\nin order to turn them back from repeated lapses to that primitive state\nof disunion which each return to it rendered worse. Those primitive\ndelusions, therefore, which peopled the earth with false divinities and\ncreated an invisible universe that governed our own, conferred a great\nbenefit\u2014I mean a great political benefit\u2014upon humanity. Those men were\nbenefactors of their kind, who dared to deceive them and drag them,\ndocile and ignorant, to worship at the altars. By presenting to them\nobjects that lay beyond the scope of sense and fled from their grasp\nthe nearer they seemed to approach them\u2014never despised, because never\nwell understood\u2014they concentrated their divided passions upon a single\nobject of supreme interest to them. These were the first steps of all\nthe nations that formed themselves out of savage tribes; this was the\nepoch when larger communities were formed, and such was their necessary\nand perhaps their only bond. I say nothing of that chosen people of God,\nfor whom the most extraordinary miracles and the most signal favours were\na substitute for human policy. But as it is the quality of error to fall\ninto infinite subdivisions, so the sciences that grew out of it made\nof mankind a blind fanatical multitude, which, shut up within a close\nlabyrinth, collides together in such confusion, that some sensitive and\nphilosophical minds have regretted to this day the ancient savage state.\nThat is the first epoch in which the sciences or rather opinions are\ninjurious.\n\nThe second epoch of history consists in the hard and terrible transition\nfrom errors to truth, from the darkness of ignorance to the light. The\ngreat clash between the errors which are serviceable to a few men of\npower and the truths which are serviceable to the weak and the many, and\nthe contact and fermentation of the passions at such a period aroused,\nare a source of infinite evils to unhappy humanity. Whoever ponders on\nthe different histories of the world, which after certain intervals\nof time are so much alike in their principal episodes, will therein\nfrequently observe the sacrifice of a whole generation to the welfare\nof succeeding ones, in the painful but necessary transition from the\ndarkness of ignorance to the light of philosophy, and from despotism to\nfreedom, which result from the sacrifice. But when truth, whose progress\nat first is slow and afterwards rapid (after men\u2019s minds have calmed down\nand the fire is quenched that purged a nation of the evils it suffered),\nsits as the companion of kings upon the throne, and is reverenced and\nworshipped in the parliaments of free governments, who will ever dare\nassert that the light which enlightens the people is more injurious than\ndarkness, and that acknowledging the true and simple relations of things\nis pernicious to mankind?\n\nIf blind ignorance is less pernicious than confused half-knowledge,\nsince the latter adds to the evils of ignorance those of error, which\nis unavoidable in a narrow view of the limits of truth, the most\nprecious gift that a sovereign can make to himself or to his people\nis an enlightened man as the trustee and guardian of the sacred laws.\nAccustomed to see the truth and not to fear it; independent for the most\npart of the demands of reputation, which are never completely satisfied\nand put most men\u2019s virtue to a trial; used to consider humanity from\nhigher points of view; such a man regards his own nation as a family of\nmen and of brothers, and the distance between the nobles and the people\nseems to him so much the less as he has before his mind the larger total\nof the whole human species. Philosophers acquire wants and interests\nunknown to the generality of men, but that one above all others, of not\nbelying in public the principles they have taught in obscurity, and they\ngain the habit of loving the truth for its own sake. A selection of\nsuch men makes the happiness of a people, but a happiness which is only\ntransitory, unless good laws so increase their number as to lessen the\nprobability, always considerable, of an unfortunate choice.\n\nAnother way of preventing crimes is to interest the magistrates who carry\nout the laws in seeking rather to preserve than to corrupt them. The\ngreater the number of men who compose the magistracy, the less danger\nwill there be of their exercising any undue power over the laws; for\nvenality is more difficult among men who are under the close observation\nof one another, and their inducement to increase their individual\nauthority diminishes in proportion to the smallness of the share of it\nthat can fall to each of them, especially when they compare it with\nthe risk of the attempt. If the sovereign accustoms his subjects, by\nformalities and pomp, by severe edicts, and by refusal to hear the\ngrievances, whether just or unjust, of the man who thinks himself\noppressed, to fear rather the magistrates than the laws, it will be more\nto the profit of the magistrates than to the gain of private and public\nsecurity.\n\nAnother way to prevent crimes is to reward virtue. On this head I notice\na general silence in the laws of all nations to this day. If prizes\noffered by academies to the discoverers of useful truths have caused the\nmultiplication of knowledge and of good books, why should not virtuous\nactions also be multiplied, by prizes distributed from the munificence of\nthe sovereign? The money of honour ever remains unexhausted and fruitful\nin the hands of the legislator who wisely distributes it.\n\nLastly, the surest but most difficult means of preventing crimes is\nto improve education\u2014a subject too vast for present discussion, and\nlying beyond the limits of my treatise; a subject, I will also say,\ntoo intimately connected with the nature of government for it ever to\nbe aught but a barren field, only cultivated here and there by a few\nphilosophers, down to the remotest ages of public prosperity. A great\nman, who enlightens the humanity that persecutes him, has shown in detail\nthe chief educational maxims of real utility to mankind; namely, that it\nconsists less in a barren multiplicity of subjects than in their choice\nselection; in substituting originals for copies in the moral as in the\nphysical phenomena presented by chance or intention to the fresh minds of\nyouth; in inclining them to virtue by the easy path of feeling; and in\ndeterring them from evil by the sure path of necessity and disadvantage,\nnot by the uncertain method of command, which never obtains more than a\nsimulated and transitory obedience.\n\n\n\n\nCHAPTER XLII.\n\nCONCLUSION.\n\n\nFrom all that has gone before a general theorem may be deduced, of great\nutility, though little comformable to custom, that common lawgiver of\nnations. The theorem is this: \u2018In order that every punishment may not\nbe an act of violence, committed by one man or by many against a single\nindividual, it ought to be above all things public, speedy, necessary,\nthe least possible in the given circumstances, proportioned to its crime,\ndictated by the laws.\u2019\n\n\n\n\nFOOTNOTES\n\n\n[64] Note that the word Right is not opposed to the word Force; but the\nformer is rather a modification of the latter; that is, the modification\nmost advantageous to the greater number. And by justice I mean nothing\nelse than the chain which is necessary for holding together private\ninterests and preventing their breaking away into the original state of\ninsociability.\n\nOne must be careful not to attach to this word Justice the idea of\nanything real, as of a physical force or an independent entity; it is\nonly a human mode of thinking, a mode that has unbounded influence over\neach one\u2019s happiness. Still less do I mean that other kind of justice\nthat has emanated from God, and has its immediate connection with the\npenalties and rewards of a future life.\n\n[65] If every individual is bound to society, society is no less bound to\nevery individual by a contract which is necessarily obligatory on both\nsides. This obligation, which descends from the throne to the cabin,\nwhich binds equally the greatest and most miserable of men, means nothing\nbut that it is the interest of all men that covenants advantageous to the\ngreater number should be observed.\n\nThe word \u2018obligation\u2019 is one of those which are much more frequent in\nethics than in any other science, and which are the abbreviated symbol\nof a train of reasoning rather than of a single idea. Seek for an idea\ncorresponding to the word \u2018obligation\u2019 and you will seek in vain; reason\nabout it, and you will both understand yourself and be understood by\nothers.\n\n[66] According to the criminalists the greater the atrocity of the\ncrime the greater the credibility of the witness. Look at the iron\nmaxim dictated by the most cruel stupidity: _In atrocissimis leviores\nconjecture sufficiunt, et licet judici jura transgredi._ Translate this\ninto common language, and Europeans will see one of the very many and\nequally senseless rules to which almost without knowing it they are\nsubject: _In the most atrocious crimes_ (that is, in the least probable)\n_the slightest conjectures are enough, and the judge may legitimately\nexceed the law_. Absurd legal practices are often the result of fear,\nwhich is the principal source of all human contradictions. Legislators\n(who are really only lawyers, authorised by chance to decide about\neverything, and to become from interested and venal writers arbiters\nand legislators about the fortunes of men), alarmed by the condemnation\nof some innocent person, have loaded jurisprudence with superfluous\nformalities and exceptions, the exact observance of which would cause\nanarchy to sit with impunity on the throne of justice. In their fright at\nsome crimes of an atrocious nature and difficult to prove, they thought\nthemselves under the necessity of getting over the very formalities\nestablished by themselves; and so, now with despotic impatience, now with\nfeminine timidity, they have transformed grave trials into a kind of\nplay, in which hazard and subterfuge act the principal part.\n\n[67] In the original manuscript and the first edition there was no _not_.\nIt is unknown how it got in, or whether Beccaria was aware of it. Cant\u00f9,\n_Beccaria_, 127.\n\n[68] Commerce and property are not themselves an end of the social\ncompact, but they may be a means to reach that end. To expose all\nthe members of society to evils, for the production of which so many\ncircumstances work together, would be to subordinate ends to means\u2014a\nparalogism of all the sciences, but especially of political science,\nand one into which I fell in the first editions, where I said that the\ninnocent bankrupt ought to be kept guarded in pledge of his debts or\nemployed as a slave to labour for his creditors. I am ashamed of having\nso written. I have been accused of irreligion without deserving to be,\nand I have been accused of sedition without deserving to be. I offended\nthe rights of humanity, and no one reproached me for it!\n\n[69] Where a country\u2019s boundaries increase at a greater rate than its\npopulation, there luxury favours despotism, firstly, because scarcity of\nmen means less industry, and less industry means a greater dependence\nof poverty upon wealth, and greater difficulty and less dread of a\ncombination of the oppressed against their oppressors; secondly, because\nthe flatteries, the services, the distinctions, the submission, which\ncause the difference between the strong man and the feeble to be all the\nmore felt, are more easily obtained from few men than from many, since\nmen are more independent the less subject they are to observation, and\nare the less subject to observation the more numerous they are. But\nwhere the population increases at a faster rate than the boundaries are\nenlarged, luxury is opposed to despotism, because it gives life to men\u2019s\nindustry and activity, and the necessity of the poor man offers too\nmany pleasures and comforts to the rich man for the pleasures of pure\nostentation, which increase the idea of dependence, to have the greater\nplace. Hence it is observable that in large, weak, and depopulated\nStates, unless there are counteracting causes, the luxury of ostentation\nprevails over the luxury of comfort; but in populous rather than large\nStates the luxury of comfort always causes the diminution of that of\nostentation.\n\n[70] This attraction resembles in many points that of gravitation, which\nmoves the universe, because, like it, it diminishes with distance; and if\nthe one force controls all the movements of physical bodies, the other\ncontrols those of the mind during the continuance of its sway. But they\ndiffer in this, that, whilst gravitation is counterbalanced by obstacles,\nthe other for the most part gains force and strength from the increase of\nthe very obstacles opposed to it.\n\n LONDON: PRINTED BY\n SPOTTISWOODE AND CO., NEW-STREET SQUARE\n AND PARLIAMENT STREET","title":"Crimes and Punishments: Including a New Translation of Beccaria's 'Dei Delitti e delle Pene'","tradition":"philosophy-ethics","translated_text":null,"word_count":59855}