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The majority of mankind lack that vigour which is equally necessary for the greatest crimes as for the greatest virtues; whence it would appear, that both extremes are contemporaneous phenomena in nations[162] which depend rather on the energy of their government and of the passions that tend to the public good, than on their size and the constant goodness of their laws. In the latter the weakened passions seem more adapted to maintain than to improve the form of government. From which flows an important consequence, namely, that great crimes in a nation do not always prove its decline.

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What will be the penalty suitable for such and such crimes?Torture was definitely and totally abolished in Portugal in 1776, in Sweden in 1786,[24] and in Austria in 1789. In the latter country, indeed, it had been abolished by Maria Theresa sixteen years before in her German and Polish provinces; and the Penal Code of Joseph II., published in 1785, was an additional tribute to the cause of reform. Secret orders were even given to the tribunals to substitute other punishments for hanging, yet so that the general public should be unaware of the change. There was the greatest anxiety that it should not be thought that this change was out of any deference for Beccaria or his school. In the abolition of capital punishment, said Kaunitz, his Majesty pays no regard at all to the principles of modern philosophers, who, in affecting a horror of bloodshed, assert that primitive justice has no right to take from a man that life which Nature only can give him. Our sovereign has only consulted his own conviction, that the punishment he wishes substituted for the capital penalty is more likely to be felt by reason of its duration, and therefore better fitted to inspire malefactors with terror.
 
ONE:Whoever, therefore, shall wish to honour me with his criticisms, I would have begin with a thorough comprehension of the purpose of my worka purpose which, so far from diminishing legitimate authority, will serve to increase it, if opinion can effect more over mens minds than force, and if the mildness and humanity of the government shall justify it in the eyes of all men. The ill-conceived criticisms that have been published against this book are founded on confused notions, and compel me to interrupt for a moment the arguments I was addressing to my enlightened readers, in order to close once for all every door against the misapprehensions of timid bigotry or against the calumnies of malice and envy.

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TWO:This truth is, in fact, felt, though in a confused way, by the very persons who place themselves farthest from it. For a confession made under torture is of no avail unless it be confirmed by an oath made after it; and yet, should the criminal not confirm his confession, he is tortured afresh. Some doctors of law and some nations only allow this infamous begging of the question to be employed three times; whilst other nations and other doctors leave it to the discretion of the judge.In view of these principles it will appear strange (to anyone who does not reflect, that reason has, so to speak, never yet legislated for a nation), that it is just the most atrocious crimes or the most secret and chimerical onesthat is, those of the least probabilitywhich are proved by conjectures or by the weakest and most equivocal proofs: as if it were the interest of the laws and of the judge, not to search for the truth, but to find out the crime; as if the danger of condemning an innocent man were not so much the greater, the greater the probability of his innocence over that of his guilt.

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TWO:To examine and distinguish all the different sorts[120] of crimes and the manner of punishing them would now be our natural task, were it not that their nature, which varies with the different circumstances of times and places, would compel us to enter upon too vast and wearisome a mass of detail. But it will suffice to indicate the most general principles and the most pernicious and common errors, in order to undeceive no less those who, from a mistaken love of liberty, would introduce anarchy, than those who would be glad to reduce their fellow-men to the uniform regularity of a convent.Who can read history without being horror-struck at the barbarous and useless torments which men, who were called wise, in cold blood devised and executed? Who is there but must feel his blood boil, when he regards the thousands of wretches whom misery, either intended or tolerated by the laws (which have always favoured the few and outraged the many), has driven to a desperate return to the original state of nature; when he sees them either accused by men endowed with the same senses, and consequently with the same passions as themselves, of impossible crimes, the fiction of timid ignorance, or guilty of nothing but fidelity to their own principles; and when he sees them lacerated by slow tortures, subject to well-contrived formalities, an agreeable sight for a fanatical multitude?
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FORE:CHAPTER XXVI. CRIMES OF HIGH TREASON.

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FORE:It is, then, proved that the law which imprisons[227] subjects in their own country is useless and unjust. The punishment, therefore, of suicide is equally so; and consequently, although it is a fault punishable by God, for He alone can punish after death, it is not a crime in the eyes of men, for the punishment they inflict, instead of falling on the criminal himself, falls on his family. If anyone objects, that such a punishment can nevertheless draw a man back from his determination to kill himself, I reply, that he who calmly renounces the advantages of life, who hates his existence here below to such an extent as to prefer to it an eternity of misery, is not likely to be moved by the less efficacious and more remote consideration of his children or his relations. The first class of crimesthat is, the worst, because they are the most injurious to societyare those known as crimes of high treason. Only tyranny and ignorance, which confound words and ideas of the clearest meaning, can apply this name, and consequently the heaviest punishment, to different kinds of crimes, thus rendering men, as in a thousand other cases, the victims of a word. Every crime, be it ever so private, injures society; but every crime does not aim at its immediate destruction. Moral, like physical actions, have their limited sphere of activity, and are differently circumscribed, like all the movements of nature, by time and space; and therefore only a sophistical interpretation, which is generally the philosophy of slavery, can confound what eternal truth has distinguished by immutable differences.

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FORE:CHAPTER XXI. ASYLUMS OF REFUGE.There was not an anomaly in our old criminal practice which was not based on this theorya theory which had, indeed, its precedent in the old Hebrew law that punished more severely a theft from a field than a theft from a house; and the first writer who protested against it was Eden, afterwards Lord Auckland, who in 1771 published his Principles of Penal Law, one of the best books ever written on the subject. The influence of Beccaria is apparent in Edens work, not only by his direct reference to it, but by his spirit of declared opposition to the actual practice of the law. Two instances of its tendency will suffice. Imprisonment, inflicted by law as a punishment, is not according to the principles of wise legislation. It sinks useful subjects into burthens on the community, and has always a bad effect on their morals; nor can it communicate the benefit of example, being in its nature secluded from the eye of the people. And again: Whatever exceeds simple death is mere cruelty. Every step beyond is a trace of ancient barbarity, tending only to distract the attention of the spectators and to lessen the solemnity of the example. There is no such thing as vindictive justice; the idea is shocking.

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FORE:It is, however, probable that the frequency of any crime bears little or no relation to the punishment affixed to it. Every criminal begins a new career, in which he thinks less of the nature of his punishment than of his chances of eluding it. Neither tradition nor example count with him for much in his balance of the chances in his own favour. The law can never be so certain in its execution as it is uncertain in its application, and it is the examples of impunity, not of punishment, to which men turn when they violate the law. So that whether the punishment for murder be an excruciating death, as in ancient Rome, or a mere fine, as in ancient England, the motives for escape are always the same, the means to effect it are always the same, and the belief in his power to effect it is correspondingly powerful in every criminal guilty of homicide.

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

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FORE:That Penology is still only in its experimental stage as a science, in spite of the progress it has made in recent times, is clear from the changes that are so constantly being made in every department of our penal system. We no longer mutilate nor kill our criminals, as our ancestors did in the plenitude of their wisdom; we have ceased to transport them, and our only study now is to teach them useful trades and laborious industry. Yet whether we shall better bring them to love labour by compulsory idleness or by compulsory work, whether short imprisonment or long is the most effective discipline, whether seclusion or association is least likely to demoralise them, these and similar questions have their answers in a quicksand of uncertainty. This only may experience be said to have yet definitely proved, that very little relation exists in any country between the given quantity of crime and the quantity or severity of punishment directed to its prevention. It has taken thousands of years to establish this truth, and even yet it is but partially recognised over the world.

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TWO:Given the necessity of the aggregation of mankind, and given the covenants which necessarily result from the very opposition of private interests, a scale of offences may be traced, beginning with those which tend directly to the destruction of society, and ending with acts of the smallest possible injustice committed against individual members of it. Between these extremes are comprised all the actions opposed to the public welfare which are called crimes, and which by imperceptible degrees decrease in enormity from the highest to the lowest. If the infinite and obscure combinations of human actions admitted of mathematical treatment, there ought to be a corresponding scale of punishments, varying from the severest to the slightest penalty. If there were an exact and universal scale of crimes and punishments, we should have an approximate and general test by[199] which to gauge the degrees of tyranny and liberty in different governments, the relative state of the humanity or wickedness of different nations. But the wise legislator will rest satisfied with marking out the principal divisions in such a scale, so as not to invert their order, nor to affix to crimes of the first degree punishments due to those of the last.
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THREE:It is well known that Lord Tenterden refused ever to sit again in the House of Lords if the Reform Bill became law, and that he predicted that that measure would amount to the political extinction of the Upper House. As regards the history of our criminal law Lord Tenterden was right, for the period of long pauses had passed away, and rapid changes were made with but short intervals of breathing-time. From the year the Reform Bill passed the school of Beccaria and Bentham achieved rapid successes in England. In 1832 it ceased to be capital to steal a horse or a sheep, in 1833 to break into a house, in 1834 to return prematurely from transportation, in 1835 to commit sacrilege or to steal a letter. But[67] even till 1837 there were still 37 capital offences on the statute-book; and now there are only two, murder and treason. Hanging in chains was abolished in 1834; the pillory was wholly abolished in 1837; and the same year Ewart, after many years struggle, obtained for prisoners on trial for felony the right (still merely a nominal one)[39] of being defended by counsel.
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THREE:It were superfluous to enlighten the matter more thoroughly by mentioning the numberless instances of innocent persons who have confessed themselves guilty from the agonies of torture; no nation, no age, but can mention its own; but men neither change their natures nor draw conclusions. There is no man who has ever raised his ideas beyond the common needs of life but runs occasionally towards Nature, who with secret and confused voice calls him to herself; but custom, that tyrant of human minds, draws him back and frightens him.Capital punishment becomes a spectacle for the majority of mankind, and a subject for compassion and abhorrence for others; the minds of the spectators are more filled with these feelings than with the wholesome terror the law pretends to inspire. But in moderate and continuing penalties the latter is the predominant feeling, because it is the only one. The limit, which the legislator should affix to the severity of penalties, appears to lie in the first signs of a feeling[173] of compassion becoming uppermost in the minds of the spectators, when they look upon the punishment rather as their own than as that of the criminal.
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THREE: Suicide is a crime to which a punishment properly so called seems inadmissible, since it can only fall upon the innocent or else upon a cold and insensible body. If the latter mode of punishing the crime makes no more impression on the living than would be made by inflicting violence on a statue, the other mode is unjust and tyrannical, inasmuch as political freedom necessarily presupposes the purely personal nature of[223] punishment. Men love life only too much, and everything that surrounds them confirms them in this love. The seductive image of pleasure, and hope, that sweetest illusion of mortals, for the sake of which they swallow large draughts of evil mixed with a few drops of contentment, are too attractive, for one ever to fear, that the necessary impunity of such a crime should exercise any general influence. He who fears pain, obeys the laws; but death puts an end in the body to all the sources of pain. What, then, will be the motive which shall restrain the desperate hand of the suicide?CHAPTER XXXIII. OF THE PUBLIC TRANQUILLITY.
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TWO:When Beccaria wrote against capital punishment, one great argument against its abolition was its practical universality. It had been abolished in ancient Egypt by king Sabaco,[28] in the best period of the Roman Republics by the Porcian law, and in the time of the Roman Empire by Calo-Johannes.[29] But these cases were too remote from modern times to lend much weight to the general argument. At that time Russia alone of all the countries in the world[44] had, from the accession of the Empress Elizabeth, afforded a practical example of the fact, that the general security of life is not diminished by the withdrawal of the protection of capital punishment. But since that time this truth has become less and less a theory or speculation, and it now rests on the positive experience of no inconsiderable portion of the world. In Tuscany, Holland, Portugal, Russia, Roumania, Saxony, Prussia, Belgium, and in ten of the United States of America, the death penalty has either been abolished or discontinued; and can it be thought that the people of those countries are so indifferent to the safety of their lives as to be content with a less efficient legal protection than is vouchsafed in countries where the protection is death?I do not pretend to diminish the just wrath these crimes deserve; but, in indicating their sources, I think myself justified in drawing one general conclusion, and that is, that no punishment for a crime can[231] be called exactly justthat is, necessaryso long as the law has not adopted the best possible means, in the circumstances of a country, to prevent the crimes it punishes.
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TWO:Corporal and painful punishments should not be inflicted for those crimes which have their foundation in pride, and draw from pain itself their glory and nutriment. For such crimes ridicule and infamy are more fitted, these being penalties which curb the[184] pride of fanatics by the pride of the beholders, and only let truth itself escape their tenacity by slow and obstinate efforts. By such an opposition of forces against forces, and of opinions against opinions, the wise legislator destroys that admiration and astonishment among a people, which a false principle causes, whose original absurdity is usually hidden from view by the plausible conclusions deduced from it.
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TWO:This truth is, in fact, felt, though in a confused way, by the very persons who place themselves farthest from it. For a confession made under torture is of no avail unless it be confirmed by an oath made after it; and yet, should the criminal not confirm his confession, he is tortured afresh. Some doctors of law and some nations only allow this infamous begging of the question to be employed three times; whilst other nations and other doctors leave it to the discretion of the judge.By the present English law a person convicted of more offences than one may be sentenced for each offence separately, the punishment of each one in[106] succession taking effect on the expiration of the other. By this law (which the Criminal Code Commissioners propose to alter) imprisonment may be spread over the whole of a lifetime. On this point the Chinese law again offers a model, for it enacts that when two or more offences are proved against a man, they shall all be estimated together, and the punishment of all the lesser offences be included in that of the principal charge, not in addition to it So also if the offences are charged at different times, and the punishment of one has been already discharged, there is no further punishment for the other subsequent charges, unless they be charges of greater criminality, in which case only the difference between the punishments can be legally incurred.[63] But this of course presupposes a definite scale of crimes and punishments.
THREE:Nothing is more dangerous than that common axiom, We must consult the spirit of the laws. It is like breaking down a dam before the torrent of opinions. This truth, which seems a paradox to ordinary minds, more struck as they are by a little present inconvenience than by the pernicious but remote consequences which flow from a false principle enrooted among a people, seems to me to be demonstrated. Our knowledge and all our ideas are reciprocally connected together; and the more complicated they are, the more numerous are the approaches to them, and the points of departure. Every man has his own point of viewa different one at different times; so that the spirit of the laws would mean the result of good or bad logic on the part of a judge, of an easy or difficult digestion; it would depend now on the violence of his passions, now on the[128] feebleness of the sufferer, on the relationship between the judge and the plaintiff, or on all those minute forces which change the appearances of everything in the fluctuating mind of man. Hence it is that we see a citizens fate change several times in his passage from one court to another; that we see the lives of wretches at the mercy of the false reasonings or of the temporary caprice of a judge, who takes as his rightful canon of interpretation the vague result of all that confused series of notions which affect his mind. Hence it is that we see the same crimes punished differently by the same court at different times, owing to its having consulted, not the constant and fixed voice of the laws, but their unstable and erring interpretations.The right to ask such a question derives itself from recent experience. In 1853 the country decided to shorten terms of penal servitude as compared with those of the then expiring system of transportation, for which they were to be substituted. Four years later it was resolved to equalise terms of penal servitude with those formerly given of transportation, though transportation for seven years was still to have its equivalent in three of penal servitude. Then came the garrotting year, 1862, in consequence of which the minimum term of penal servitude was raised to five years, whilst no sentence of penal servitude, after a previous conviction of felony, was to be for less than seven years. Now again the tide has turned in favour of shorter sentences, and it is officially proposed to relinquish the latter minimum of servitude as too severe, and as leading in practice to sentences of simple imprisonment, which on the other hand are declared to be too slight.
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Whoever, then, I repeat, will honour me with his criticisms, let him not begin by supposing me to advocate principles destructive of virtue or religion, seeing that I have shown that such are not my principles; and instead of his proving me to be an infidel or a[116] rebel, let him contrive to find me a bad reasoner or a shortsighted politician; but let him not tremble at every proposition on behalf of the interests of humanity; let him convince me either of the inutility or of the possible political mischief of my principles; let him prove to me the advantage of received practices. I have given a public testimony of my religion and of my submission to my sovereign in my reply to the Notes and Observations; to reply to other writings of a similar nature would be superfluous; but whoever will write with that grace which becomes honest men, and with that knowledge which shall relieve me from the proof of first principles, of what character soever, he shall find in me not so much a man who is eager to reply as a peaceable lover of the truth.Thus before his death Beccaria saw torture almost entirely abolished in Europe, and a general tendency spreading to follow the spirit of the changes he advocated in other details of criminal law. Probably no other theorist ever lived to witness so complete an adoption of his principles in practice, or so thorough a transformation of the system he attacked. It is possible that he but gave body and voice to ideas of change already widely prevalent in his time; but the[38] merit of a man belongs none the less to himself, who changes the instability of public opinion into an active and solid force, and who gives distinct expression to the longings vaguely felt by a multitude.How easily might the farseeing legislator hinder a large part of culpable bankruptcy, and relieve the misfortunes of the industrious and innocent! The public and open registration of all contracts; freedom to every citizen to consult them in well-kept documents; a public bank formed by wisely-apportioned taxes upon prosperous commerce, and intended for the timely relief of any unfortunate and innocent member of the company;such measures would have no real drawback and might produce numberless advantages. But easy, simple, and great laws, which await but the signal of the legislator, in order to scatter riches and strength through a nationlaws which would be celebrated from generation to generation in hymns of gratitudeare either the least thought of or the least desired of all. An uneasy and petty spirit, the timid prudence of the present moment, and a circumspect stiffness against innovations, master the feelings of those who govern the complex actions of mankind.The second consequence is, that the sovereign, who represents society itself, can only form general laws, obligatory on all; he cannot judge whether[125] any one in particular has broken the social compact, for in that case the nation would be divided into two parties, one represented by the sovereign, asserting the violation of such contract; the other by the accused, denying the same. Hence the necessity of a third person to judge of the fact; in other words, of a magistrate, whose decisions shall simply consist of affirmations or denials of particular facts, and shall also be subject to no appeal.
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