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It may be said that all such absurdities are past; that the Jews, the Athenians, the Chinese, the Europeans of the middle ages can scarcely be cited as reasonable beings; that they had no rational theory of punishment, and that their errors have been long since discarded. But at least their example suggests that even in our own system there may be inconsistencies and blemishes which custom and authority hide from our eyes.The End The more speedily and the more nearly in connection with the crime committed punishment shall follow, the more just and useful it will be. I say more just, because a criminal is thereby spared those useless and fierce torments of suspense which are all the greater in a person of vigorous imagination and fully conscious of his own weakness; more just also, because the privation of liberty, in itself a punishment, can only precede the sentence by the shortest possible interval compatible with the requirements of necessity. Imprisonment, therefore, is simply the safe custody of a citizen pending the verdict of his guilt; and this custody, being essentially disagreeable, ought to be as brief and easy as possible. The shortness of the time should be measured both by the necessary length of the preparations for the trial and by the seniority of claim to a judgment. The strictness of confinement should be no more than is necessary either for the prevention of escape or for guarding against the concealment of the proof of crimes. The trial itself should be finished in the shortest time possible. What contrast[186] more cruel than that between a judges ease and a defendants anguish? between the comforts and pleasures of an unfeeling magistrate on the one hand, and the tears and wretchedness of a prisoner on the other? In general, the weight of a punishment and the consequence of a crime should be as efficacious as possible for the restraint of other men and as little hard as possible for the individual who is punished; for one cannot call that a proper form of society, where it is not an infallible principle, that its members intended, in constituting it, to subject themselves to as few evils as possible.
Slider 1 ONE:There are a few obvious remedies by which the inducements to crime might be easily diminished. In 1808 Sir Samuel Romilly brought in a bill, to provide persons tried and acquitted of felony with compensation, at the discretion of the judge, for the loss they incurred by their detention and trial. This was objected to, on the ground that the payment of such compensation out of the county rates would discourage prosecutions; and the only justice done to men falsely accused from that day to this is the authorisation given to goal-governors in 1878 to provide prisoners, who have been brought from another county for trial at the assizes and have been acquitted, with means of returning to their own homes. Something more than this is required to save a man so situated from falling into real crime.Accordingly he made a rapid journey back, leaving his companion to visit England alone; this expedition to Paris being the only event that ever broke the even tenor of his life. His French friends rather deserted him, Morellet in his memoirs going even so far as to speak of him as half-mad. But it was to his[25] friendship with the Verris that this journey to Paris was most disastrous, and nothing is more mournful than the petty jealousies which henceforth completely estranged from him his early friends. The fault seems to have rested mainly with the two brothers, whose letters (only recently published) reveal an amount of bitterness against Beccaria for which it is difficult to find any justification, and which disposes for ever of all claims of their writers to any real nobleness of character.[9] They complain to one another of Beccarias Parisian airs, of his literary pride, of his want of gratitude; they rejoice to think that his reputation is on the wane; that his illustrious friends at Paris send him no copies of their books; that he gets no letters from Paris; nay, they even go so far as to welcome the adverse criticisms of his Dei Delitti, and to hope that his golden book is shut up for ever.[10] Alessandro writes to his brother that all his thoughts are turned to the means of mortifying Beccaria; and the revenge the brothers think most likely to humiliate him is for Alessandro to extend the limits of his travels, so as to compare favourably with Beccaria in the eyes of the Milanese. They delight in calling him a madman, an imbecile, a harlequin; they lend a ready ear to all that gossip says in his[26] discredit.[11] In the most trifling action Pietro sees an intended slight, and is especially sore where his literary ambition is touched.[12] It angers him that Beccaria should receive praise for the Apology written against Facchinei, the work having been entirely written by himself, with some help from his brother, but with not so much as a comma from the hand of Beccaria.[13] Some books which Beccaria had brought to him from Paris he imagined were really gifts to him from the authors; he believed that DAlembert had sent him his Mlanges of his own accord, not at the request of Beccaria, as the latter had represented; but even Alessandro admits that it was concerning the books, as Beccaria had said.[14] In short, the whole correspondence shows that Pietro Verri was extremely jealous of the success which he himself had helped his friend to attain, and that disappointed literary vanity was the real explanation of his suddenly transmuted affection.
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Slider 3 ONE:No man has gratuitously parted with a portion of his own liberty with a view to the public good; that is a chimera which only exists in romances. Each one of us would wish, if it were possible, that the[122] covenants which bind others should not bind himself. There is no man but makes himself the central object of all the combinations of the globe.
ONE:Such was the reasoning which for nearly half a century governed the course of English history, and which for all that time it was a heresy to dispute.

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THREE:Some crimes are injuries to a mans person, others to his property, and the former should certainly be punished by corporal punishments.

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ONE:CHAPTER XV. THE MILDNESS OF PUNISHMENTS.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:In methods of trial the use of torture is contrary to sound reason. Humanity cries out against the practice and insists on its abolition.

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THREE:In order that a punishment may be just, it must contain only such degrees of intensity as suffice to deter men from crimes. But as there is no one who on reflection would choose the total and perpetual loss of his liberty, however great the advantages offered him by a crime, the intensity of the punishment of servitude for life, substituted for capital punishment, has that in it which is sufficient to daunt the most determined courage. I will add that it is even more deterrent than death. Very many men face death calmly and firmly, some from fanaticism, some from vanity, which almost always attends a man to the tomb; others from a last desperate attempt either no longer to live or to escape from their misery; but neither fanaticism nor vanity have any place among fetters and chains, under the stick, under the yoke, in a cage of iron; the wretch thus punished is so far from terminating his miseries that with his punishment he only begins them.

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THREE:Again, Proportion between crime and punishment seems to be another natural demand of equity. Yet it is evident that it is only approximately possible, and will vary in every age and country according to the prevalent notions of morality. Is imprisonment for a year, or imprisonment for life, or for how long, a fair and proportionate punishment for perjury? Who shall decide? Shall we submit it to the opinion of the judges? But has not Romilly left on record the story of the two men tried by two different judges for stealing some chickens, who were sentenced respectively one to imprisonment for two months, and the other to transportation? Shall we then give up all attempt at proportion and apply the same deterrent as equally efficacious against slight or grave offences? Draco, when asked why he made death the punishment for most offences that were possible, is said to have replied, Small ones deserve it, and I can find no greater for the gravest. The same reasoning was for a long time that of our own law; and in Japan,[78] where every wrong act was one of disobedience to the Emperor, and accordingly of equal value, the same penalty of death for gambling, theft, or murder, obviated all difficulties with regard to a proportion which is easier to imagine than it is to define.CHAPTER IV. INTERPRETATION OF THE LAWS.

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THREE:Whosoever will read with a philosophical eye the codes and annals of different nations will find almost always that the names of virtue and vice, of good citizen and criminal, are changed in the course of ages, not in accordance with the changes that occur in the circumstances of a country, and consequently in conformity with the general interest, but in accordance with the passions and errors that have swayed different legislators in succession. He will observe full often, that the passions of one age form the basis of the morality of later ones; that strong passions, the offspring of fanaticism and enthusiasm, weakened and, so to speak, gnawed away by time (which reduces to a level all physical and moral phenomena) become little by little the prudence of the age, and a useful[204] instrument in the hand of the strong man and the clever. In this way the vaguest notions of honour and virtue have been produced; for they change with the changes of time, which causes names to survive things; as also with the changes of rivers and mountains, which form frequently the boundaries of moral no less than of physical geography.In such a zigzag path has our penal legislation been feeling, and is still feeling, its way, with evident misgiving of that principle of repression, as false as it is old, that an increase of crime can only be met by an increase of punishment.

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ONE:Capital punishment is injurious by the example of barbarity it presents. If human passions, or the necessities of war, have taught men to shed one anothers blood, the laws, which are intended to moderate human conduct, ought not to extend the savage example, which in the case of a legal execution is all the more baneful in that it is carried out with studied formalities. To me it seems an absurdity, that the laws, which are the expression of the public will, which abhor and which punish murder, should themselves[177] commit one; and that, to deter citizens from private assassination, they should themselves order a public murder. What are the true and the most useful laws? Are they not those covenants and conditions which all would wish observed and proposed, when the incessant voice of private interest is hushed or is united with the interest of the public? What are every mans feelings about capital punishment? Let us read them in the gestures of indignation and scorn with which everyone looks upon the executioner, who is, after all, an innocent administrator of the public will, a good citizen contributory to the public welfare, an instrument as necessary for the internal security of a State as brave soldiers are for its external. What, then, is the source of this contradiction; and why is this feeling, in spite of reason, ineradicable in mankind? Because men in their most secret hearts, that part of them which more than any other still preserves the original form of their first nature, have ever believed that their lives lie at no ones disposal, save in that of necessity alone, which, with its iron sceptre, rules the universe.

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THREE: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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THREE:CHAPTER XIX. THE PROMPTNESS OF PUNISHMENTS.

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THREE: The reader of this treatise will perceive that I have omitted all reference to a certain class of crime, which has deluged Europe with human blood; a crime which raised those fatal piles, where living human bodies served as food for the flames, and where the blind multitude sought a pleasant spectacle and a sweet harmony from the low dull groans, emitted by wretched sufferers from volumes of black smoke, the smoke of human limbs, whilst their bones and still palpitating entrails were scorched and consumed by the flames. But reasonable men will see that the place, the age, and the subject suffer me not to inquire into the nature of such a crime. It would be too long and remote from my subject to show, how a perfect uniformity of thought ought, contrary to the practice of many countries, to be a necessity in a State; how opinions, which only differ by the most subtle and imperceptible degrees, and are altogether beyond the reach of human intelligence, can[232] yet convulse society, when one of them is not legally authorised in preference to the others; and how the nature of opinions is such, that, whilst some become clearer by virtue of their conflict and opposition, (those that are true floating and surviving, but those that are false sinking to oblivion,) others again, with no inherent self-support, require to be clothed with authority and power. Too long would it be to prove, that howsoever hateful may seem the government of force over human minds, with no other triumphs to boast of but dissimulation and debasement, and howsoever contrary it may seem to the spirit of gentleness and fraternity, commanded alike by reason and the authority we most venerate, it is yet necessary and indispensable. All this should be taken as clearly proved and conformable to the true interests of humanity, if there be anyone who, with recognised authority, acts accordingly. I speak only of crimes that spring from the nature of humanity and the social compact; not of sins, of which even the temporal punishments should be regulated by other principles than those of a narrow philosophy.Repression by the law seems likewise the only means of preventing that large class of actions which affect the general character and tone of a country, whilst they injuriously affect no individual in particular. The protection of creatures too feeble to protect themselves justifies, under this head, the legal punishment of cruelty to animals. It is idle to say that the law can do nothing against the average moral sense of the community, for the law is often at first the only possible lever of our moral ideas. Were it not for the law we should still bait bulls and bears, and find amusement in cock-throwing; and till the law includes hares and pigeons within the pale of protection drawn so tenderly round bulls and bears, no moral sense is likely to arise against the morbid pleasures of coursing and pigeon-shooting.

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THREE:Even if we assume that death is absolutely the severest penalty devisable by the law, and that as a punishment for murder it is not too severe, it remains certain, that, relatively to the circumstances of a trial[40] for murder, to the reluctance of judges or juries to pass an irretrievable sentence, to their fear of error, to their conscientious regard for human life, it is really a much less terrible danger for a malefactor to face than a penalty which would justify fewer hopes of impunity.It is the specific crime, not the fact that it is a second or third felony, which is injurious. Neither a community nor an individual suffer more from the commission of a crime by a man who commits it for the second time than from its commission by a man who has never committed it before. If two brothers are each robbed of a pound apiece on two several occasions, the one who is robbed each time by the same criminal suffers no more than the one who is robbed each time by different criminals. Still less is the public more injured in one case than in the other. Therefore the former brother is entitled for his second loss to no more restitution than the other, nor has any more claim on society for the infliction of a severer punishment on his behalf than that inflicted for the second loss of his brother.

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ONE:Analogy between crime and punishment is another idea which, except in the case of death for death, has been relegated from the practice of most criminal laws. Yet the principle has in its favour the authority of Moses, the authority of the whole world and of all time, that punishment should, if possible, resemble the crime it punishes in kind; so that a man who blinds another should be blinded himself, he who disfigures another be disfigured himself. Thus in the old-world mythology, Theseus and Hercules inflict on the evil powers they conquer the same cruelties their victims were famous for; Termenus having his skull broken because with his own skull he broke the heads of others; and Busiris, who sacrificed others, being himself sacrificed in his turn. Both Montesquieu and Beccaria also advocate analogy in punishment, and so does Bentham to some degree; there being, indeed, few greater contrasts between the theories of the great English jurist and modern English practice than that the former should not have deprecated some suffering by burning as a penalty analogous to the crime of arson, and that he should have advised the transfixing of a forgers hand or of a calumniators tongue[79] by an iron instrument before the public gaze as good and efficient punishments for forgery and slander.

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

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A strange consequence that flows naturally from the use of torture is, that an innocent man is thereby placed in a worse condition than a guilty one, because if both are tortured the former has every alternative against him. For either he confesses the crime and is condemned, or he is declared innocent, having suffered an undeserved punishment. But the guilty man has one chance in his favour, since, if he resist the torture firmly, and is acquitted in consequence, he has exchanged a greater penalty for a smaller one. Therefore the innocent man can only lose, the guilty may gain, by torture. There are some crimes which, are at the same time frequent in society and yet difficult to prove, as adultery, pederasty, infanticide.
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