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In these Notes and Observations Beccaria and his work were assailed with that vigour and lucidity for which the Dominican school of writing has always been so conspicuous. The author was described as a man of narrow mind, a madman, a stupid impostor, full of poisonous bitterness and calumnious mordacity. He was accused of writing with sacrilegious imposture against the Inquisition, of believing that religion was incompatible with the good government of a state; nay, he was condemned by all the reasonable world as the enemy of Christianity, a bad philosopher, and a bad man. His book was stigmatised as sprung from the deepest abyss of darkness, horrible, monstrous, full of poison, containing miserable arguments, insolent blasphemies, and so forth. Such fatal and legalised iniquities as have been referred to have been approved of by even the wisest men and practised by even the freest republics, owing to their having regarded society rather as an aggregate[236] of families than as one of individuals. Suppose there to be 100,000 individuals, or 20,000 families, of five persons each, including its representative head: if the association is constituted by families, it will consist of 20,000 men and 80,000 slaves; if it be an association of individuals, it will consist of 100,000 citizens, and not a single slave. In the first case there will be a republic, formed of 20,000 little sovereignties; in the second the republican spirit will breathe, not only in the market-places and meetings of the people, but also within the domestic walls, wherein lies so great a part of human happiness or misery. In the first case, also, as laws and customs are the result of the habitual sentiments of the members of the republicthat is, of the heads of familiesthe monarchical spirit will gradually introduce itself, and its effects will only be checked by the conflicting interests of individuals, not by a feeling that breathes liberty and equality. Family spirit is a spirit of detail and confined to facts of trifling importance. But the spirit which regulates communities is master of general principles, overlooks the totality of facts, and combines them into kinds and classes, of importance to the welfare of the greater number. In the community of families sons remain in the power of the head of the family so long as he lives, and are obliged to look forward to his death for an existence dependent on the laws alone. Accustomed to submission and fear in the[237] freshest and most vigorous time of life, when their feelings are less modified by that timidity, arising from experience, which men call moderation, how shall they withstand those obstacles in the way of virtue which vice ever opposes, in that feeble and failing period of life when despair of living to see the fruit of their labours hinders them from making vigorous changes?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?
Slider 1 ONE:Six days after his arrival Beccaria writes in a similar strain: that he is in the midst of adorations and the most flattering praises, considered as the companion and colleague of the greatest men in Europe, regarded with admiration and curiosity, his company competed for; in the capital of pleasures, close to three theatres, one of them the Comdie Fran?aise, the most interesting spectacle in the world; and that yet he is unhappy and discontented, and unable to find distraction in anything. He tells his wife that he is in excellent health, but that she must say just the contrary, in order that there may be a good pretext for his return; and the better to ensure this, he sends his wife another letter which she may show to his parents, and in which, at the end of much general news about Paris, he alludes incidentally to the bad effect on his health of drinking the waters of the Seine. He regrets having to resort to this fiction; but considers that he is justified by the circumstances.

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Slider 2 ONE: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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Slider 3 ONE:In the second place, a large proportion of the habitual criminal class is formed of weak-minded or imbecile persons, notorious for the repeated commission of petty thefts, crimes of violence and passion, and confessed to be not amenable to the ordinary influences of self-interest or fear of punishment.[57] It is now proposed to separate this class of prisoners from others; but is punishment operative on them at all? Is not their proper place an asylum?

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TWO: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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THREE:

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THREE:Are the same penalties equally useful in all times?Sir Robert Peel, who was the first Ministerial law reformer, succeeded in getting the death penalty repealed for several crimes which were practically obsolete, but forty kinds of forgery alone still remained capital offences.

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THREE:Romillys first idea with respect to the reform of the criminal law was a sufficiently humble one. It was nothing more than to raise the amount of the value of the property, the theft of which should expose a man to death. Twelvepence, as fixed by the statute of Elizabeth, originally signified a much greater theft than it had come to signify after a lapse of two centuries. Romilly had at first no idea of removing the death penalty for theft; his only hope was to get it affixed to a graver theft than the larceny of a shilling. Yet even so he could not bring himself to consult with the judges on the subject of his intended bill, for he had not the least hope they would approve of the measure.

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TWO:It was by the advice of Scarlett, Lord Abinger, that he ventured to aim at the repeal of all statutes punishing mere theft with death; but, deeming it hopeless to urge their abolition all at once, he resolved to begin with that famous statute of Elizabeth which made it a capital crime to steal a handkerchief or anything else from the person of another which was of the value of a shilling. His bill to effect this[60] passed both Houses the same year it was introduced (1808), in spite of the strong opposition of the great legal dignitaries in either House. The statute was based, said Judge Burton, on the experience of two and a half centuries. The alternative punishment of transportation for seven years, said the Attorney-General, would be too short; it should be for more years than seven, if not for life. If any change of punishment were necessary, said Lord Ellenborough, it should be transportation for life.Some persons have maintained that a crime, that is, an action contrary to the laws, is punishable wherever committed, as if the character of subject[193] were indelible, or, in other words, synonymous with, nay, worse than, the character of slave; as if a man could be the subject of one kingdom and the resident of another, or as if his actions could without contradiction be subordinate to two sovereign powers and to two legal systems often contradictory. So some think that a cruel action done, say, at Constantinople is punishable at Paris, for the abstract reason that he who offends humanity deserves to have collective humanity for his enemy, and merits universal execration; as if judges were the avengers of human sensibility in general, and not rather of the covenants that bind men together. The place of punishment is the place of the crime, because there, and there only, is it a compulsory duty to injure an individual, to prevent an injury to the public. A villain, but one who has not broken the covenants of the society of which he was not a member, may be an object of fear, and for that reason be expelled and exiled by the superior power of that society; but he cannot be legally and formally punished, since it is for the laws to avenge, not the intrinsic malice of particular actions, but the violation of compacts.

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THREE:Even when Paris was reached, and Beccaria and Alessandro were warmly welcomed by DAlembert, Morellet, Diderot, and Baron Holbach, the homesickness remained. You would not believe, says Beccaria to his wife, the welcomes, the politeness, the demonstrations of friendship and esteem, which they have shown to me and my companion. Diderot, Baron Holbach, and DAlembert especially enchant us. The latter is a superior man, and most simple at the same time. Diderot displays enthusiasm and good humour in all he does. In short, nothing is wanting to me but yourself. All do their best to please me, and those who do so are the greatest men in Europe. All of them deign to listen to me, and no one shows the slightest air of superiority. Yet[24] Morellet tells us that even on arrival Beccaria was so absorbed in melancholy, that it was difficult to get four consecutive words from his mouth.CHAPTER I. INTRODUCTION.

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THREE:Laws are the conditions under which men, leading independent and isolated lives, joined together in society, when tired of living in a perpetual state of war, and of enjoying a liberty which the uncertainty of its tenure rendered useless. Of this liberty they voluntarily sacrificed a part, in order to enjoy the remainder in security and quiet. The sum-total of all these portions of liberty, sacrificed for the good of each individually, constitutes the sovereignty of a nation, and the sovereign is the lawful trustee and administrator of these portions. But, besides forming this trust-fund, or deposit, it was necessary to protect it from the encroachments of individuals, whose aim it ever is not only to recover from the fund their own deposit, but to avail themselves of that contributed by others. Sensible motives, were therefore wanted to divert the despotic will of the individual from re-plunging into their primitive chaos the laws of society.[123] Such motives were found in punishments, established against transgressors of the laws; and I call them sensible motives, because experience has shown that the majority of men adopt no fixed rules of conduct, nor avoid that universal principle of dissolution, observable alike in the moral as in the physical world, save by reason of motives which directly strike the senses and constantly present themselves to the mind, counterbalancing the strong impressions of private passions, opposed as they are to the general welfare; not eloquence, nor declamations, nor the most sublime truths have ever sufficed to curb the passions for any length of time, when excited by the lively force of present objects.

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THREE:What is the best way of preventing crimes?

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TWO:[66]My country is quite immersed in prejudices, left in it by its ancient masters. The Milanese have no pardon for those who would have them live in the eighteenth century. In a capital which counts 120,000 inhabitants, you will scarcely find twenty who love to instruct themselves, and who sacrifice to truth and virtue. My friends and I, persuaded that periodical works are among the best means for tempting to some sort of reading minds incapable of more serious application, are publishing in papers, after the manner of the English Spectator, a work which in England has contributed so much to increase mental culture and the progress of good sense. The French philosophers have a colony in[7] this America, and we are their disciples because we are the disciples of reason, &c.

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TWO:

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TWO:What will be the penalty suitable for such and such crimes?

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TWO:But if the custody of the criminal class has been overrated as a preventive of crime, or regarded as the sole preventive instead of one amongst many, it does not follow that crime on that account must be left to itself. It only follows that we should trust to punishment less and to other agencies more in our war with[104] crime, and that we should seek to check the latter at its source, not in its full stream, by attending to the improvement of the general conditions of life. It is quite certain, for instance, that the spread of education, of which Beccaria wrote in terms of such despair, means the diminution of crime; and as the majority of crimes are committed between the ages of twenty and forty, it may be predicted that from the present year onwards the great Act of 1870 will bear increasing fruit in lowering our criminal statistics. More too may be hoped for from the electric light than from any multiplication of prisons.Finally, a man who, when examined, persists in an obstinate refusal to answer, deserves a punishment[146] fixed by the laws, and one of the heaviest they can inflict, that men may not in this way escape the necessary example they owe to the public. But this punishment is not necessary when it is beyond all doubt that such a person has committed such a crime, questions being useless, in the same way that confession is, when other proofs sufficiently demonstrate guilt And this last case is the most usual, for experience proves that in the majority of trials the accused are wont to plead Not guilty.

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TWO:Where there is no capital punishment, as in Michigan, a mans innocence may be discovered subsequently to conviction, and justice done to him for the error of the law. Such a case actually happened not long ago in Michigan, where a prisoners innocence[41] was clearly proved after ten years imprisonment. Where capital punishment exists, there is no such hope; nor is there any remedy if, as in the case of Lewis, who was hung in 1831, another man thirty-three years afterwards confesses himself the murderer. It is impossible to preclude all chances of such errors of justice. Illustrative of this is the story of the church organist near Kieff, who murdered a farmer with a pistol he stole from a priest. After his crime he placed the pistol in the sacristy, and then, when he had prevented the priest from giving evidence against him by the act of confession, went and denounced the priest as the culprit. The priest, in spite of his protestations of innocence, was sentenced to hard labour for life; and when, twenty years afterwards, the organist confessed his guilt on his deathbed, and the priests liberation was applied for, it was found that he had died only a few months before.[26]

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TWO:Even when Paris was reached, and Beccaria and Alessandro were warmly welcomed by DAlembert, Morellet, Diderot, and Baron Holbach, the homesickness remained. You would not believe, says Beccaria to his wife, the welcomes, the politeness, the demonstrations of friendship and esteem, which they have shown to me and my companion. Diderot, Baron Holbach, and DAlembert especially enchant us. The latter is a superior man, and most simple at the same time. Diderot displays enthusiasm and good humour in all he does. In short, nothing is wanting to me but yourself. All do their best to please me, and those who do so are the greatest men in Europe. All of them deign to listen to me, and no one shows the slightest air of superiority. Yet[24] Morellet tells us that even on arrival Beccaria was so absorbed in melancholy, that it was difficult to get four consecutive words from his mouth.

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Some courts promise impunity to an accomplice in a serious crime who will expose his companions, an expedient that has its drawbacks as well as its advantages. Among the former must be counted the national authorisation of treachery, a practice which even criminals detest; for crimes of courage are less pernicious to a people than crimes of cowardice, courage being no ordinary quality, and needing only a beneficent directing force to make it conduce to the public welfare, whilst cowardice is more common and contagious, and always more self-concentrated than the other. Besides, a tribunal which calls for the aid of the law-breaker proclaims its own uncertainty and the weakness of the laws themselves. On the other hand, the advantages of the practice are, the prevention[164] of crimes and the intimidation of the people, owing to the fact that the results are visible whilst the authors remain hidden; moreover, it helps to show that a man who breaks his faith to the laws, that is, to the public, is likely also to break it in private life. I think that a general law promising impunity to an accomplice who exposes a crime would be preferable to a special declaration in a particular case, because in this way the mutual fear which each accomplice would have of his own risk would tend to prevent their association; the tribunal would not make criminals audacious by showing that their aid was called for in a particular case. Such a law, however, should accompany impunity with the banishment of the informer. But to no purpose do I torment myself to dissipate the remorse I feel in authorising the inviolable laws, the monument of public confidence, the basis of human morality, to resort to treachery and dissimulation. What an example to the nation it would be, were the promised impunity not observed, and were the man who had responded to the invitation of the laws dragged by learned quibbles to punishment, in spite of the public troth pledged to him! Such examples are not rare in different countries; neither, therefore, is the number small, of those who consider a nation in no other light than in that of a complicated machine, whose springs the cleverest and the strongest move at their will. Cold and insensible to all that forms the delight of[165] tender and sensitive minds, they arouse, with imperturbable sagacity, either the softest feelings or the strongest passions, as soon as they see them of service to the object they have in view, handling mens minds just as musicians do their instruments.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.
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