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Less dangerous personally than the theological criticism, but more pernicious to reform, was the hostile criticism that at once appeared from the thick phalanx of professional lawyers, the sound-thinking practical men. From whom only two short extracts need be rescued from oblivion, as illustrations of the objections once raised against ideas which have since become the common groundwork of all subsequent legislation, in America as well as in Europe. The first extract is from a work on criminal justice by a lawyer of Provence, who in 1770 wrote as follows: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.
ONE:The object of examining an accused man is the ascertainment of truth. But if this truth is difficult to discover from a mans air, demeanour, or countenance, even when he is quiet, much more difficult will it be to discover from a man upon whose face all the signs, whereby most men, sometimes in spite of themselves, express the truth, are distorted by pain. Every violent action confuses and causes to disappear those trifling differences between objects, by which one may sometimes distinguish the true from the false.
THREE: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.
FORE:These are some of the difficulties of the subject, which teach us the necessity of constant open-mindedness with regard to all ideas or practices connected with criminal law. But, would we further examine our established notions, we should consider a statement from Hobbes which goes to the very root of the theory of punishment.

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FORE: Men for the most part leave the regulation of their chief concerns to the prudence of the moment, or to the discretion of those whose interest it is to oppose the wisest laws; such laws, namely, as naturally help to diffuse the benefits of life, and check that tendency they have to accumulate in the hands of a few, which ranges on one side the extreme of power and happiness, and on the other all that is weak and wretched. It is only, therefore, after having passed through a thousand errors in matters that most nearly touch their lives and liberties, only after weariness of evils that have been suffered to reach a climax, that men are induced to seek a remedy for the abuses which oppress them, and to recognise the clearest truths, which, precisely on account of their simplicity, escape the notice of ordinary minds, unaccustomed as they are to analyse things, and apt to receive their impressions anyhow, from tradition rather than from inquiry.CHAPTER XXXII. OF DEBTORS.

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FORE:I know that those general principles which tend to enlighten and improve the human race are not absolutely useless that the enlightenment of nations is not without some effect on their rulers provided that the prerogative of the latter, their power, their security, their authority, their safety, is not touched thereby. I know well that this general enlightenment, so much boasted of, is a beautiful and glorious chimera, with which philosophers love to amuse themselves, but which would soon disappear if they would open history, and see therefrom to what causes improved institutions are due. The nations of antiquity have passed, and those of the present will pass, before philosophy and its influence have reformed a single government.

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THREE:The knowledge of the true relations between a sovereign and his subjects, and of those between different nations; the revival of commerce by the light of philosophical truths, diffused by printing; and the silent international war of industry, the most humane and the most worthy of rational menthese are the fruits which we owe to the enlightenment of this century. But how few have examined and combated the cruelty of punishments, and the irregularities of criminal procedures, a part of legislation so[119] elementary and yet so neglected in almost the whole of Europe; and how few have sought, by a return to first principles, to dissipate the mistakes accumulated by many centuries, or to mitigate, with at least that force which belongs only to ascertained truths, the excessive caprice of ill-directed power, which has presented up to this time but one long example of lawful and cold-blooded atrocity! And yet the groans of the weak, sacrificed to the cruelty of the ignorant or to the indolence of the rich; the barbarous tortures, multiplied with a severity as useless as it is prodigal, for crimes either not proved or quite chimerical; the disgusting horrors of a prison, enhanced by that which is the cruellest executioner of the miserablenamely, uncertainty;these ought to startle those rulers whose function it is to guide the opinion of mens minds.

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  • THREE:Who, then, will be the rightful interpreter of the laws? Will it be the sovereign, the trustee of the actual wills of all, or the judge, whose sole function[127] it is to examine whether such and such a man has committed an illegal act or not?Ramsay was so far right, that whether a revolution was the only hope for theories like Beccarias or[21] not, the realisation of many of them was one of the first results of that general revolution, which seemed to Ramsay so impossible and undesirable. His letter, as it is a characteristic expression of that common apathy and despair of change which afflict at times even the most sanguine and hopeful, so it is, from its misplaced despair, a good cure for moods of like despondency. For the complete triumph of Beccarias theories about torture, to say nothing of other improvements in law that he lived to witness, is perhaps the most signal instance in history of the conquest of theory over practice. For albeit that his theory was at total variance with the beliefs and ideas of the whole practical school, Beccaria lived to see torture abolished, not only in Lombardy and Tuscany, but in Austria generally, in Portugal and in Sweden, in Russia as well as in France. Yet Ramsays fears at the time were more reasonable than the hopes of Beccaria.

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  • THREE:CHAPTER XXXV. SUICIDE AND ABSENCE.

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  • THREE: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:[27]

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FORE:In every criminal case a judge ought to form a complete syllogistic deduction, in which the statement of the general law constitutes the major premiss; the conformity or non-conformity of a particular action with the law, the minor premiss; and acquittal or punishment, the conclusion. When a judge is obliged, or of his own accord wishes, to make even no more than two syllogisms, the door is opened to uncertainty.

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FORE:If we consult the human heart we shall therein discover the fundamental principles of the real right of the sovereign to punish crimes.If pleasure and pain are the motors of sensitive beings, if the invisible lawgiver of humanity has decreed rewards and punishments as one of the motives to impel men to even their noblest endeavours, the inexact distribution of these motives will give rise to that contradiction, as little noticed as it is of common occurrence, namely, that the laws punish crimes which are entirely of their own creation. If an equal penalty is attached to two crimes of unequal injury to society, the greater crime of the two, if it promise a greater advantage than the other, will have no stronger motive in restraint of its perpetration.[197] Whoever, for example, sees the same punishment of death decreed for the man who kills a pheasant and the man who slays his fellow or falsifies an important document, will draw no distinction between such crimes; and thus moral sentiments, the product only of many ages and of much bloodshed, the slowest and most difficult attainment of the human mind, dependent, it has been thought, on the aid of the most sublime motives and on a parade of the gravest formalities, will be destroyed and lost.

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FORE:It is of interest to trace some of the practical results which followed Beccarias treatise during the thirty years that he lived after its publication; that is, from the year 1764 to 1794. As soon as the proofs of a crime and its reality are fully certified, the criminal must be allowed time and opportunity for his defence; but the time allowed must be so short as not to interfere with the speediness of his punishment, which, as we have seen, is one of the principal restraints from crime. A false philanthropy seems opposed to this shortness of time; but all doubt will vanish, on reflection that the more defective any system of law is, the greater are the dangers to which innocence is exposed.

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FORE:But should a man who is banished and excluded for ever from the society of which he was a member be also deprived of his property? Such a question may be regarded from different points of view. The loss of property is a greater punishment than banishment; there ought, therefore, to be some cases in which, according to his crime, a man should lose the whole, or part, or none of his property. The confiscation of the whole will occur, when the legal sentence of banishment is of a kind to annihilate all the ties that exist between society and its offending member; for in such a case the citizen dies, and only the man remains; and with regard to the political body civil death should produce the same effect as natural death. It would seem then that the confiscated property should pass to a mans lawful heirs rather than[182] to the head of the State, since death and banishment in its extreme form are the same with regard to the body politic. But it is not by this subtlety that I dare to disapprove of confiscations of property. If some have maintained that confiscations have acted as checks on acts of revenge and on the great power of individuals, it is from neglecting to consider that, however much good punishments may effect, they are not for that reason always just, because to be just they must be necessary; and an expedient injustice can be tolerated by no legislator, who wishes to close all doors against watchful tyranny, ever ready to hold out flattering hopes, by temporary advantages and by the prosperity of a few persons of celebrity, in disregard of future ruin and of the tears of numberless persons of obscurity. Confiscations place a price on the heads of the feeble, cause the innocent to suffer the punishment of the guilty, and make the commission of crimes a desperate necessity even for the innocent. What sadder sight can there be than that of a family dragged down to infamy and misery by the crimes of its head, unable to prevent them by the submission imposed on it by the laws, even supposing such prevention to have been within its power!

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THREE:Lord Ellenborough, on the last day but one of May 1810, appealed to their lordships to pause, before they passed the Shoplifting Bill and gave their assent to the repeal of a law which had so long been held necessary for the security of the public. No one, he insisted, was more disposed than himself to the exercise of clemency, but there was not the slightest ground for the insinuations of cruelty that had been cast on the administration of the law. If shoplifting did not require the penalty of death, the same rule would have to apply to horse- and sheep-stealing; and, in spite of all that was said in favour of this speculative humanity, they must all agree, that prevention of crime should be the chief object of the law, and that terror alone could prevent the crime in question. Those who were thus speculating in modern legislation urged that punishment should[63] be certain and proportionate; but he could satisfy the House that any attempt to apply a punishment in exact conformity to the offence would be perfectly ludicrous. He had consulted with the other judges, and they were unanimously of opinion that it would not be expedient to remit this part of the severity of the criminal law.[38] He therefore entreated them to pause.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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THREE:CHAPTER III. CONSEQUENCES.CHAPTER XII. TORTURE.

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FORE: The Dei Delitti e delle Pene was published for the first time in 1764. It quickly ran through several editions, and was first translated into French in 1766 by the Abb Morellet, since which time it has been translated into most of the languages of Europe, not excluding Greek and Russian.Beccaria would certainly have done better not to[23] have gone to Paris at all. His letters to his wife during his absence show that he was miserable all the time. In every letter he calculates the duration of time that will elapse before his return, and there is an even current of distress and affection running through all the descriptions of his journey. The assurance is frequent that but for making himself ridiculous he would return at once. From Lyons he writes that he is in a state of the deepest melancholy; that even the French theatre he had so much looked forward to fails to divert him; and he begs his wife to prepare people for his speedy return by telling them that the air of France has a bad effect on his health.

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FORE:DEI DELITTI E DELLE PENE. TO THE READER.English philosophy and legislation, therefore, owe enough to Beccaria for his treatise never to be forgotten among us. Standing, as it does, in reference to law as Bacons Novum Organon to science, or Descartes Principia to philosophy, and representing a return to first principles and rejection of mere precedent in the matter of penal laws, it will never fail to gratify those who, with little admiration for law in the concrete, can yet find pleasure in studying it in the abstract. Most men will turn readily from a system built up, as our own is, of unintelligible distinctions, and based on authority rather than on experience, to a system where no distinctions exist save those which are derived from the nature of things and are founded on the real differences that distinguish the moral actions of mankind.

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TWO:In order that a punishment may attain its object, it is enough if the evil of the punishment exceeds the advantage of the crime, and in this excess of evil the certainty of punishment and the loss of the possible advantage from the crime ought to be considered as part; all beyond this is superfluous and consequently tyrannical. Men regulate their conduct by the reiterated impression of evils they know, not by reason of evils they ignore. Given two nations, in one of which, in the scale of punishments proportioned[167] to the scale of crimes, the severest penalty is perpetual servitude, and in the other the wheel; I say that the former will have as great a dread of its severest punishment as the latter will have; and if there be any reason for transporting to the former country the greater penalties of the other, the same reasoning will serve for increasing still more the penalties of this latter country, passing imperceptibly from the wheel to the slowest and most elaborate tortures, nay, even to the last refinements of that science which tyrants understand only too well.
TWO:CHAPTER XIII. PROSECUTIONS AND PRESCRIPTIONS.I said that the promptness of punishment is more useful, because the shorter the interval of time between the punishment and the misdeed, the stronger and the more lasting in the human mind is the association of these ideas, crime and punishment, so that insensibly they come to be considered, the one as the cause and the other as its necessary and inevitable consequence. It is a proved fact that the association of ideas is the cement of the whole fabric of the human intellect, and that without it pleasure and pain would be isolated and ineffective feelings. The further removed men are from general ideas and universal principles, that is, the more commonplace they are, the more they act by their immediate and nearest associations, to the neglect of remoter and more complex ones, the latter being of service only[187] to men strongly impassioned for a given object of pursuit, inasmuch as the light of attention illuminates a single object, whilst it leaves the others obscure. They are also of service to minds of a higher quality, because, having acquired the habit of running rapidly over many subjects at a time, they possess facility in placing in contrast with one another many partial feelings, so that the result of their thoughts, in other words, their action, is less perilous and uncertain.
TWO:
TWO:
TWO: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.
TWO:The credibility, therefore, of a witness must diminish in proportion to the hatred, friendship, or close connection between himself and the accused. More than one witness is necessary, because, so long as one affirms and another denies, nothing is proved, and the right which everyone has of being held innocent prevails.[140] The credibility of a witness becomes appreciably less, the greater the atrocity of the crime imputed,[66] or the improbability of the circumstances, as in charges of magic and gratuitously cruel actions. It is more likely, as regards the former accusation, that many men should lie than that such an accusation should be true, because it is easier for many men to be united in an ignorant mistake or in persecuting hatred than for one man to exercise a power which God either has not conferred or has taken away from every created being. The same reasoning holds good also of the second accusation, for man is only cruel in proportion to his interest to be so, to his hatred or[141] to his fear. Properly speaking, there is no superfluous feeling in human nature, every feeling being always in strict accordance with the impressions made upon the senses. In the same way the credibility of a witness may sometimes be lessened by the fact of his being a member of some secret society, whose purposes and principles are either not well understood or differ from those of general acceptance; for such a man has not only his own passions but those of others besides.
TWO: It does not follow, because the laws do not punish intentions, that therefore a crime begun by some action, significative of the will to complete it, is undeserving of punishment, although it deserves less than a crime actually committed. The importance of preventing an attempt at a crime justifies a punishment; but, as there may be an interval between the attempt and the execution, the reservation of a greater punishment for a consummated crime may present a motive for its non-completion.
TWO:

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No inconvenience that may arise from a strict observance of the letter of penal laws is to be compared with the inconveniences of subjecting them to interpretation. The momentary inconvenience in the former case involves, indeed, correcting the words of the law which are the cause of the uncertainty, a task both easy and necessary; but the fatal licence of arguing, the source of so many arbitrary and venal disputes, is thereby prevented. When a fixed code of laws, which must be observed to the letter, leaves to the judge no further trouble than to inquire into the actions of citizens and to decide on their conformity to the written law; when the standard of just and[129] unjust, which should equally direct the actions of the ignorant citizen as of the philosophical one, is not a matter of controversy but of fact; then are people no longer subject to the petty tyrannies of many men, which are all the more cruel by reason of the smaller distance that separates the sufferer from the inflictor of suffering, and which are more pernicious than the tyrannies of a single man, inasmuch as the despotism of many is only curable by that of one, and a despots cruelty is proportioned, not to the power he possesses, but to the obstacles he encounters. Under a fixed code of laws citizens acquire that consciousness of personal security, which is just, because it is the object of social existence, and which is useful, because it enables them to calculate exactly the evil consequences of a misdeed. It is true they will also acquire a spirit of independence, but not such a spirit as will seek to shake the laws and prove rebellious against the chief magistrates, except against such of them as have dared to apply the sacred name of virtue to a spiritless submission to their own self-interested and capricious opinions. These principles will displease those who have assumed the right to transfer to their subordinates the strokes of tyranny they themselves have suffered from their superiors. I personally should have everything to fear, if the spirit of tyranny and the spirit of reading ever went together.What can be thought of an author who presumes to establish his system on the dbris of all hitherto accepted notions, who to accredit it condemns all civilised nations, and who spares neither systems of law, nor magistrates, nor lawyers?CHAPTER II. THE GENERAL INFLUENCE OF BECCARIA ON LEGISLATION.
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