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The influence of the predominant French philosophy appears throughout Beccarias treatise. Human justice is based on the idea of public utility, and the object of legislation is to conduct men to the greatest possible happiness or to the least possible misery. The vein of dissatisfaction with life and of disbelief in human virtue is a marked feature of Beccarias philosophy. To him life is a desert, in which a few physical pleasures lie scattered here and there;[5] his own country is only a place of exile, save for the presence of a few friends engaged like himself in a war with ignorance. Human ideas of morality and virtue have only been produced in the course of many centuries and after much bloodshed, but slow and difficult as their growth has been, they are ever ready to disappear at the slightest breeze that blows against them.Torture is a certain method for the acquittal of robust villains and for the condemnation of innocent but feeble men. See the fatal drawbacks of this pretended test of trutha test, indeed, that is worthy of cannibals; a test which the Romans, barbarous as they too were in many respects, reserved for slaves alone, the victims of their fierce and too highly lauded virtue. Of two men, equally innocent or equally guilty, the robust and courageous will be acquitted, the weak and the timid will be condemned, by virtue of the following exact train of reasoning on the part of the judge: I as judge had to find you guilty of such and such a crime; you, A B, have by your physical strength been able to resist pain, and therefore I acquit you; you, C D, in your weakness have yielded to it; therefore I condemn you. I feel that a confession extorted amid torments can have no force, but I will torture you afresh unless you corroborate what you have now confessed.
ONE: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.In the first place, our public works prisons, however excellent for their material results, are so many schools of crime, where for the one honest trade a man learns by compulsion he acquires a knowledge of three or four that are dishonest. I have become acquainted, says a released convict, with more of what is bad and evil, together with the schemes and dodges of professional thieves and swindlers, during the four years I served the Queen for nothing, than I should have done in fifty years outside the prison walls. The association rooms at Dartmoor are as bad as it is possible for anything to be they are really class-rooms in the college of vice, where all are alike students and professors. The present system in most instances merely completes the mans vicious and criminal education, instead of in the slightest degree reforming him.[56] It has been attempted in various ways to obviate this difficulty, by diminishing opportunities of companionship; but the real demoralisation of prison life is probably due less to the actual contact of bad men with one another than to the deadened sense of criminality which they derive from the feeling of numbers, just as from the same cause the danger of drowning is forgotten on the ice. Prisoners in gangs lose all shame of crime, just as men in armies forget their native horror of murder. TWO: We have seen that the true measure of crimes is the injury done to society. This is one of those palpable truths which, however little dependent on quadrants or telescopes for their discovery, and fully within the reach of any ordinary intelligence, are yet, by a marvellous combination of circumstances, only recognised clearly and firmly by some few thinkers, belonging to every nationality and to every age. But Asiatic ideas, and passions clothed with authority and power, have, generally by imperceptible movements, sometimes by violent assaults on the timid credulity of mankind, dissipated those simple notions, which perhaps formed the first philosophy of primitive communities, and to which the enlightenment of this age seems likely to reconduct us, but to do so with that greater sureness, which can be gained from an exact[200] investigation into things, from a thousand unhappy experiences, and from the very obstacles that militate against it.
ONE:Two other fatal consequences flow from the cruelty of punishments, and are contrary to their very purpose, the prevention of crimes. The first is, that it is not so easy to preserve the essential proportion between crime and punishment, because, however much a studied cruelty may diversify its forms, none of them can go beyond the extreme limit of endurance which is a condition of the human organisation and sensibility. When once this extreme limit is attained, it would be impossible to invent such a corresponding increase of punishment for still more injurious and atrocious crimes as would be necessary to prevent them. The other consequence is, that impunity itself arises from the severity of punishments. Men are restrained within limits both in good and evil; and a sight too atrocious for humanity can only be a passing rage, not a constant system, such as the laws ought to be; if the latter are really cruel, either they are changed, or themselves give rise to a fatal impunity.

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THREE: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.For the same reason it is of little avail to call in question, as Beccaria does, the right of society to inflict death as a punishment. There may be a distinction between the right of society and its might, but it is one of little comfort to the man who incurs its resentment. A man in a dungeon does better to amuse himself with spiders and cobwebs than with reflections on the encroachment of the law upon his liberty, or with theories about the rights of government. Whenever society has ceased to exercise any of its powers against individuals, it has not been from the acceptance of any new doctrine as to its rights, but from more enlightened views as to its real interests, and a cultivated dislike of cruelty and oppression.

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THREE:A farm labourer, with a wife and four children, and earning eleven shillings a week, was imprisoned in the county gaol for two months for the theft of a pound of butter. Soon after his release sickness entered his home, and to supply his childrens wants[89] he again yielded to temptation and stole twelve ducks eggs. For this he was sentenced to seven years penal servitude; or rather not for this theft, but because he had already incurred a severe punishment for a theft of some butter. The sentence was most perfectly lawful, but was it not perfectly unjust?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.

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THREE:

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ONE:Are the same penalties equally useful in all times?The immortal President, Montesquieu, has treated cursorily of this matter; and truth, which is indivisible, has forced me to follow the luminous footsteps of this great man; but thinking men, for whom I write, will be able to distinguish my steps from his. Happy shall I esteem myself if, like him, I shall succeed in obtaining the secret gratitude of the unknown and peaceable followers of reason, and if I shall inspire them with that pleasing thrill of emotion with which sensitive minds respond to the advocate of the interests of humanity.

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THREE: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 XXXIII. OF THE PUBLIC TRANQUILLITY.

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THREE:Happy were humanity, if laws were now dictated to it for the first time, when we see on the thrones of Europe beneficent monarchs, men who encourage the virtues of peace, the sciences and the arts, who are fathers to their people, who are crowned citizens, and the increase of whose authority forms the happiness of their subjects, because it removes that intermediate despotism, more cruel because less secure, by which the peoples wishes, always sincere, and always attended to when they can reach the throne, have been usually intercepted and suppressed. If they, I say, suffer the ancient laws to exist, it is owing to the infinite difficulties of removing from errors the revered rust of many ages; which is a reason for enlightened citizens to desire with all the greater ardour the continual increase of their authority.

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THREE: If we would bring to the study of Beccarias treatise the same disposition of mind with which he wrote it, we must enter upon the subject with the freest possible spirit of inquiry, and with a spirit of doubtfulness, undeterred in its research by authority however venerable, by custom however extended, or by time however long. It has been from too great reverence for the wisdom of antiquity that men in all ages have consigned their lives and properties to the limited learning and slight experience of generations which only lived for themselves and had no thought of binding posterity in the rules they thought suitable to their own times. Beccaria sounded the first note of that appeal from custom to reason in the dominion of law which has been, perhaps, the brightest feature in the history of modern times, and is still transforming the institutions of all countries.

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THREE: It is not easy in the days of a milder administration of penal laws than a century ago the most sanguine could have dreamed of to do full justice to those who laboured, as Beccaria and his friends did, at the peril of their lives and liberties, for those very immunities which we now enjoy. We cannot conceive that it should ever have been necessary to argue against torture, or that it should have been a bold thing to do so; still less can we conceive that it should ever have had its defenders, or that men should have been contented with the sophism, that it was indeed an evil, but an evil which was necessary and inevitable.

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ONE:The country in which the first attempt was made to apply his principles to practice was Russia, where Catharine II. was anxious to establish a uniform[33] penal code, based on the liberal ideas of the time, which then found more favour in St. Petersburg than they did at Paris. For this purpose in 1767 she summoned to Moscow from all the provinces of Russia those 652 deputies who formed the nearest approach in the history of that country to a Russian Parliament. In the instructions that were read to this assembly, as the basis for the proposed codification of the laws, the principles propounded were couched not only in the spirit but often in the very words of the author of the Crimes and Punishments. The following are examples:

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FORE: The second question is, whether it is expedient to place a reward on the head of a known criminal, and to make of every citizen an executioner by arming him against the offender. Either the criminal has fled from his country or he is still within it. In the first case the sovereign encourages the commission of a crime and exposes its author to a punishment, being thereby guilty of an injury and of an usurpation of authority in the dominions of another, and authorising other nations to do the same by himself. In the second case the sovereign displays his own weakness, for he who has the power wherewith to defend himself seeks not to purchase it. Moreover, such an edict upsets all ideas of morality and virtue,[195] which are ever ready to vanish from the human mind at the very slightest breath. Now the laws invite to treachery, and anon they punish it; with one hand the legislator tightens the bonds of the family, of kindred, and of friendship, whilst with the other he rewards whosoever violates and despises them; always in self-contradiction, he at one moment invites to confidence the suspicious natures of men, and at another scatters mistrust broadcast among them. Instead of preventing one crime, he causes a hundred. These are the resources of weak nations, whose laws are but the temporary repairs of a ruined building that totters throughout. In proportion as a nation becomes enlightened, good faith and mutual confidence become necessary, and tend ever more to identify themselves with true policy. Tricks, intrigues, dark and indirect paths, are for the most part foreseen, and the general quickness of all men collectively over-reaches and blunts that of single individuals. The very ages of ignorance, in which public morality inclines men to obey the dictates of private morality, serve as instruction and experience for the ages of enlightenment. But laws which reward treachery and stir up clandestine hostility by spreading mutual suspicion among citizens, are opposed to this union of private and public morality, a union which is so necessary, and to the observance of which individuals might owe their happiness, nations their peace, and[196] the universe a somewhat longer period of quiet and repose from the evils which at present pervade it.

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FORE:There is no doubt that Beccaria always had a strong preference for the contemplative as opposed to the practical and active life, and that but for his friend Pietro Verri he would probably never have distinguished himself at all. He would have said with Plato that a wise man should regard life as a storm, and hide himself behind a wall till it be overpast. He almost does say this in his essay on the Pleasures of the Imagination, published soon after the Crimes and Punishments. He advises his reader to stand aside and look on at the rest of mankind as they run about in their blind confusion; to make his relations with them as few as possible; and if he will do them any good, to do it at that distance which will prevent them from upsetting him or drawing him away in their own vortex. Let him in happy contemplation enjoy in silence the few moments that separate his birth from his disappearance. Let him leave men to fight,[12] to hope, and to die; and with a smile both at himself and at them, let him repose softly on that enlightened indifference with regard to human things which will not deprive him of the pleasure of being just and beneficent, but which will spare him from those useless troubles and changes from evil to good that vex the greater part of mankind.

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FORE:A few stories may be taken as illustrative of thousands to indicate the mischief and travesty of justice which arises from the neglect of this principle, and from the custom of making a legal inquiry into moral antecedents.

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FORE:Are torture and torments just, and do they attain the end which the law aims at?Are torture and torments just, and do they attain the end which the law aims at?

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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?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.It was at one time said that the work really was Pietro Verris and not Beccarias, for it was published anonymously, and away from Milan. The domestic circumstances of Pietro lent some countenance to this story, as did also the fact that he charged himself with the trouble of making a correct copy of the manuscript, so that a copy of the treatise does actually exist in Pietros handwriting. The story, however, has long since been disproved; yet to show the great interest which Pietro took in the work, and the[11] ready assistance he gave to his friend, a letter to him from Beccaria, with respect to the second edition, deserves mention, in which Beccaria begs him not only to revise the spelling correctly, but generally to erase, add, and correct, as he pleases. It would appear that he was already tired of literary success, for he tells his friend, that but for the motive of preserving his esteem and of affording fresh aliment to their friendship, he should from indolence prefer obscurity to glory itself.
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