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The Translator has abstained from all criticism or comment of the original, less from complete agreement[vi] with all its ideas than from the conviction that annotations are more often vexatious than profitable, and are best left to the reader to make for himself. There is scarcely a sentence in the book on which a commentator might not be prolix.

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The chief honour of the earliest attempt at law reform belongs to Sir William Meredith, who in 1770 moved for a committee of inquiry into the state of the criminal laws. This committee proposed in its report of the following year the repeal of a few Acts which made certain offences capital; and accordingly the Commons in 1772 agreed, that it should no longer be punishable as high treason to make an attempt on the life of a Privy Councillor, that desertion of officers or soldiers should no longer be capital, nor the belonging to people who called themselves Egyptians. Some other proposals were negatived, such as a repeal of the hard law of James I. against infanticide; but the House of Lords refused their assent even to the slight changes passed by the Commons. It was an innovation, they said, and subversion of the law.[34][53] It is no reproach to Meredith, Burke, and Fox that they ceased to waste their strength against Conservatism such as this. All hope of reform was out of the question; and the most dreadful atrocities were suffered or defended. In 1777 a girl of 14 lay in Newgate under sentence to be burnt alive for false coinage, because some whitewashed farthings, that were to pass for sixpences, were found on her person; and a reprieve only came just as the cart was ready to take her to the stake. Not till 1790 was the law abolished by which women were liable to be burnt publicly for high or petit treason.[35]Frederick the Great had already abolished it in Prussia;[1] it had been discontinued in Sweden; it was not recognised in the military codes of Europe, and Beccaria said it was not in use in England. This was true generally, although the peine forte et dure, by which a prisoner who would not plead was subjected to be squeezed nearly to death by an iron weight, was not abolished till the year 1771.[2]CHAPTER XII. TORTURE.
TWO:The opinion that each citizen should have liberty to do whatsoever is not contrary to the laws, without fear of any other inconvenience than such as may arise from the action itselfthis is the political dogma[203] that should be believed by the people and promulgated by the chief magistrates, a dogma as sacred as that of the incorrupt guardianship of the laws, without which there can be no legitimate society; a just compensation to mankind for their sacrifice of that entire liberty of action which belongs to every sensitive being, and is only limited by the extent of its force. This it is that forms liberal and vigorous souls, and enlightened minds; that makes men virtuous with that virtue which can resist fear, and not with that flexible kind of prudence which is only worthy of a man who can put up with a precarious and uncertain existence.

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THREE:Men oppose the strongest barriers against open tyranny, but they see not the imperceptible insect, which gnaws them away, and makes for the invading stream an opening that is all the more sure by very reason of its concealment from view.If it be said that a second conviction makes it necessary for society to protect itself by stronger measures against a member who thus defies its power, it may be asked whether this is not an application of exactly the same reasoning to the crimes of individuals, which as applied to the crimes of all men generally led our ancestors so far astray in the distribution of their punishments. Nothing could have been more plausible than their reasoning: The punishment in vogue does not diminish the crime, therefore increase the punishment. But nothing could have[92] been less satisfactory than the result, for with the increase of punishment that of crime went hand in hand. The same reasoning is equally plausible in the case of individuals, with the same perplexing question resulting in the end: How comes it that, in spite of the threatened greater punishment, the majority of criminals are yet old offenders?

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THREE:No law ought to be promulgated that has not force to back it, or that the nature of things deprives of validity; and as minds are ruled by opinion, which[224] itself follows the slow and indirect impressions of legislation, whilst it resists those that are direct and violent, the most salutary laws become infected with the contempt felt for useless laws, and are regarded rather as obstacles to be surmounted than as the deposit of the public welfare.A childs simple philosophy of punishment therefore is after all the correct one, when it tells you without hesitation that the reason a man is punished for a bad action is simply because he deserves it. The notion of desert in punishment is based entirely on feelings of the justice of resentment. So that the[83] primary aim of legal punishment is precisely the same as may be shown historically to have been its origin, namely, the regulation by society of the wrongs of individuals. In all early laws and societies distinct traces may be seen of the transition of the vendetta, or right of private revenge, from the control of the person or family injured by a crime to that of the community at large. The latter at first decided only the question of guilt, whilst leaving its punishment to the pleasure of the individuals directly concerned by it. Even to this day in Turkey sentences of death for murder run as follows: So-and-so is condemned to death at the demand of the victims heirs; and such sentences are sometimes directed to be carried out in their presence.[45] By degrees the community obtained control of the punishment as well, and thus private might became public right, and the resentment of individual injuries the Retributive Justice of the State.

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FORE:Such contradictions between the laws of a family and the fundamental laws of a State are a fertile[238] source of other contradictions between public and private morality, giving rise consequently to a perpetual conflict in every individual mind. For whilst private morality inspires fear and subjection, public morality teaches courage and freedom; whilst the former inculcates the restriction of well-doing to a small number of persons indiscriminately, the latter inculcates its extension to all classes of men; and whilst the one enjoins the constant sacrifice of self to a vain idol, called the good of the family (which is frequently not the good of any single member that composes it), the other teaches men to benefit themselves, provided they break not the laws, and incites them, by the reward of enthusiasm, which is the precursor of their action, to sacrifice themselves to the good of their country. Such contradictions make men scorn to follow virtue, which they find so complicated and confused, and at that distance from them, which objects, both moral and physical, derive from their obscurity. How often it happens that a man, in reflecting on his past actions, is astonished at finding himself dishonest. The larger society grows, the smaller fraction of the whole does each member of it become, and the more is the feeling of the commonwealth diminished, unless care be taken by the laws to reinforce it. Societies, like human bodies, have their circumscribed limits, extension beyond which involves inevitably a disturbance of their[239] economy. The size of a State ought apparently to vary inversely with the sensibility of its component parts; otherwise, if both increase together, good laws will find, in the very benefit they have effected, an obstacle to the prevention of crimes. Too large a republic can only save itself from despotism by a process of subdivision, and a union of the parts into so many federative republics. But how effect this, save by a despotic dictator with the courage of Sylla and as much genius for construction as he had for destruction? If such a man be ambitious, the glory of all the ages awaits him; and if he be a philosopher, the blessings of his fellow-citizens will console him for the loss of his authority, even should he not become indifferent to their ingratitude. In proportion as the feelings which unite us to our own nation are weakened, do those for the objects immediately around us gain in strength; and it is for this reason that under the severest despotism the strongest friendships are to be found, and that the family virtues, ever of an exalted character, are either the most common or the only ones. It is evident, therefore, how limited have been the views of the great majority of legislators.

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FORE:It would be possible to distinguish a case of fraud from a grave fault, a grave fault from a light one, and this again from perfect innocence; then to affix to the first the penalties due for crimes of falsification; to the second lesser penalties, but with the loss of personal liberty; and, reserving for the last degree the free choice of the means of recovery, to deprive the third degree of such liberty, whilst leaving it to a mans creditors. But the distinction between grave and light should be fixed by the blind impartiality of the laws, not by the dangerous and arbitrary wisdom of a judge. The fixings of limits are as necessary in politics as in mathematics, equally in the measurement[219] of the public welfare as in the measurement of magnitudes.[68]

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FORE:

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THREE:Even inanimate objects or animals it has been thought through many ages reasonable to punish. In Athens an axe or stone that killed anyone by accident was cast beyond the border; and the English law was only repealed in the present reign which made a cartwheel, a tree, or a beast, that killed a man, forfeit to the State for the benefit of the poor. The Jewish law condemned an ox that gored anyone to death to be stoned, just as it condemned the human murderer. And in the middle ages pigs, horses, or oxen were not only tried judicially like men, with counsel on either side and witnesses, but they were hung on gallows like men, for the better deterrence of their kind in future.[41]

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THREE:The second epoch of history consists in the hard and terrible transition from errors to truth, from the darkness of ignorance to the light. The great clash between the errors which are serviceable to a few men of power and the truths which are serviceable to the weak and the many, and the contact and fermentation of the passions at such a period aroused, are a source of infinite evils to unhappy humanity. Whoever ponders on the different histories of the world, which after certain intervals of time are so much alike in their principal episodes, will therein frequently observe the sacrifice of a whole generation[248] to the welfare of succeeding ones, in the painful but necessary transition from the darkness of ignorance to the light of philosophy, and from despotism to freedom, which result from the sacrifice. But when truth, whose progress at first is slow and afterwards rapid (after mens minds have calmed down and the fire is quenched that purged a nation of the evils it suffered), sits as the companion of kings upon the throne, and is reverenced and worshipped in the parliaments of free governments, who will ever dare assert that the light which enlightens the people is more injurious than darkness, and that acknowledging the true and simple relations of things is pernicious to mankind?
FORE:But (he goes on) since it would be an absurd folly to expect this general revolution, this general reconstruction, which could only be effected by very violent means, such as would be at least a very great misfortune for the present generation, and hold out an uncertain prospect of compensation for the next one, every speculative work, like the Dei[20] Delitti e delle Pene, enters into the category of Utopias, of Platonic Republics and other ideal governments; which display, indeed, the wit, the humanity, and the goodness of their authors, but which never have had nor ever will have any influence on human affairs.

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FORE:

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TWO:I conclude with this reflection, that the scale of punishments should be relative to the condition of a nation. On the hardened minds of a people scarcely emerged from the savage state the impressions made should be stronger and more sensible. One needs a[169] thunderbolt for the destruction of a fierce lion that faces round at the shot of a gun. But in proportion as mens minds become softened in the social state, their sensibility increases, and commensurate with that increase should be the diminution of the force of punishment, if it be desired to maintain any proportion between the object and the sensation that attends it.The opponents of capital punishment may fairly, therefore, draw an argument in their favour from the fact that so many parts of the world have found it not incompatible with the general security of life to erase the death penalty from their list of deterrent agencies. It is better to rely on so plain a fact than on statistics which, like two-edged weapons, often cut both ways. The frequency of executions in one country and their total absence in another may severally coexist with great numerical equality in the number of murders committed in each. It is always better, therefore, to look for some other cause for a given number of murders than the kind of punishment directed to their repression. They may[45] depend on a thousand other things, which it is difficult to ascertain or eliminate. Thus both in Bavaria, where capital punishment has been retained, and in Switzerland, where it had been abolished in 1874, murders have increased greatly in recent years; and this fact has, with great probability, been attributed to the influence of bad habits contracted during the Franco-German war. THREE:[34] FORE:Are torture and torments just, and do they attain the end which the law aims at?The death of a citizen can only be deemed necessary for two reasons. The first is when, though deprived of his personal freedom, he has still such connections and power as threaten the national security; when his existence is capable of producing a dangerous revolution in the established form of government. The death of a citizen becomes then necessary when the nation is recovering or losing its liberty, or in a time of anarchy, when confusion takes the place of laws; but in times when the laws hold undisturbed sway, when the form of government corresponds with the wishes of a united nation, and is defended internally and externally by force, and by opinion which is perhaps even stronger than force, where the supreme power rests only with the real sovereign, and riches serve to purchase pleasures but not places, I see no necessity for destroying a citizen, except when his death might be the real and only restraint for diverting others from committing crimes; this latter[171] case constituting the second reason for which one may believe capital punishment to be both just and necessary.
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FORE:But why does this crime never entail disgrace upon its author, seeing that it is a theft against the prince, and consequently against the nation? I answer, that offences which men do not consider can be committed against themselves do not interest them enough to produce public indignation against their perpetrator. Smuggling is an offence of this character. Men in general, on whom remote consequences make very feeble impressions, do not perceive the harm that smuggling can do them, nay, often they enjoy a present advantage from it. They only perceive the injury done to the sovereign; they are not interested, therefore, in withdrawing their favour from a smuggler as much as they are in doing so from a man who commits a theft in private life, who forges a signature, or brings upon them other evils. The principle is self-evident, that every sensitive being only interests himself in the evils which he knows. This crime arises from the law itself; since the benefit it promises increases with the increase of the import duty, and therefore the temptation and the facility of committing it increases with the circumference of territory to be guarded and the small size of the prohibited wares. The penalty of losing both the prohibited goods, and whatever effects are found with them, is most just; but its efficacy will be greater in proportion as the import duty is lower, because men only incur risks relative to the advantage derivable from the prosperous issue of their undertaking.
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FORE:The most successful adoption of Beccarias principles of punishment occurred in Tuscany, under the Grand Duke Leopold. When he ascended the ducal throne, the Tuscans were the most abandoned people of all Italy. Robberies and murders were none the less frequent for all the gallows, wheels, and tortures which were employed to repress them. But Leopold in 1786 resolved to try Beccarias plan, for which purpose he published a code, proportioning punishments to crimes, abolishing mutilation and torture, reducing the number of acts of treason, lessening confiscations, destroying the right of asylum, and above all abolishing capital punishment even for murder. The result was, says a contemporary, that Tuscany, from having been the land of the greatest crimes and villanies, became the best ordered State of Europe.[22] During twenty years only five murders were committed in Tuscany, whilst at Rome, where death continued to be inflicted with great pomp, as[36] many as sixty were committed within the space of three months.[23]
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FORE:In France Beccarias book became widely popular, and many writers helped to propagate his ideas, such as Servan, Brissot, Lacretelle, and Pastoret. Lacretelle attributes the whole impulse of criminal law reform to Beccaria, while regretting that Montesquieu had not said enough to attract general attention to the subject. His book is said to have so changed the spirit of the old French criminal tribunals, that, ten years before the Revolution, they bore no resemblance to their former selves. All the younger magistrates gave their judgments more according to the principles of Beccaria than according to the text of the law.[21][35] The result of the agitation appeared in the Royal Ordinances of 1780 and 1788, directed to the diminution of torture, the only reforms which preceded the Revolution. It is said that the last time anyone was tortured in France was in the year 1788, the last year of the ancien rgime. At the very beginning of the Revolution more than a hundred different offences ceased to incur the penalty of death. Smuggling is a real crime against the sovereign and the nation; but its punishment should not be one of disgrace, because its commission incurs no disgrace in public opinion.
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CHAPTER I. BECCARIAS LIFE AND CHARACTER.CHAPTER XXVII. CRIMES AGAINST PERSONAL SECURITYACTS OF VIOLENCEPUNISHMENTS OF NOBLES.CHAPTER XXXI. SMUGGLING.It was this system that Beccarias little work[3] destroyed, and had that been its only result, it would still deserve to live in mens memories for its historical interest alone. For upon the legislation of that time, and especially upon that of Italy, this pamphlet on criminal law broke like a ray of sunlight on a dungeon floor, making even blacker that which was black before by the very brilliancy which it shed upon it. To Beccaria primarily, though not of course solely, belongs the glory of having expelled the use of torture from every legal tribunal throughout Christendom.
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