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It will be said, of course, that the practice of giving increased sentences where there have been previous convictions prevails all over the world and in all[90] states of civilisation. But in that very fact lies the strength of the argument against it. By the Roman law a third case of theft, however slight, exposed a man to death.[48] By the laws of St. Louis the man who stole a thing of trifling value lost an ear the first time, a foot the second, and was hung the third. By the criminal code of Sardinia in the fifteenth century, asses were condemned to lose one ear the first time they trespassed on a field not their masters, and their second ear for a second offence. But enough of such instances. The practice is undoubtedly universal; but so at one time were ordeals and tortures. May not, then, the practice be, like them, part and parcel of a crude state of law, such as was unavoidable in its emergence to better things, but such as it is worth some effort to escape from?They who have thought that the criminals intention was the true measure of crimes were in the wrong. For the intention depends on the actual impression of things upon a man, and on his precedent mental disposition, things which vary in all men and in each man, according to the very rapid succession of his ideas, his passions, and his circumstances. It would, therefore, be necessary to form not only a particular code for each citizen, but a fresh law for every crime. Sometimes with the best intentions men do the greatest evil to society; and sometimes with the very worst they do it the greatest good.
/ FORE:

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/ FORE:Your letter has raised in me sentiments of the deepest esteem, of the greatest gratitude, and the most tender friendship; nor can I confess to you how honoured I feel at seeing my work translated into the language of a nation which is the mistress and illuminator of Europe. I owe everything to French books. They first raised in my mind feelings of humanity which had been suffocated by eight years of a fanatical education. I cannot express to you the pleasure with which I have read your translation; you have embellished[5] the original, and your arrangement seems more natural than, and preferable to, my own. You had no need to fear offending the authors vanity: in the first place, because a book that treats of the cause of humanity belongs, when once published, to the world and all nations equally; and as to myself in particular, I should have made little progress in the philosophy of the heart, which I place above that of the intellect, had I not acquired the courage to see and love the truth. I hope that the fifth edition, which will appear shortly, will be soon exhausted, and I assure you that in the sixth I will follow entirely, or nearly so, the arrangement of your translation, which places the truth in a better light than I have sought to place it in.

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/ FORE:

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THREE:My occupation is to cultivate philosophy in peace, and so to satisfy my three strongest passions, the love, that is, of literary fame, the love of liberty, and pity for the ills of mankind, slaves of so many errors. My conversion to philosophy only dates back five years, and I owe it to my perusal of the Lettres Persanes. The second work that completed my mental revolution was that of Helvetius. The latter forced me irresistibly into the way of truth, and aroused my attention for the first time to the blindness and miseries of humanity.
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THREE:In proportion as punishments become milder, clemency and pardon become less necessary. Happy the nation in which their exercise should be baneful! Clemency, therefore, that virtue, which has sometimes made up in a sovereign for failings in all the other duties of the throne, ought to be excluded in a perfect system of legislation, where punishments are mild and the method of trial regular and expeditious. This truth will appear a hard one to anybody living in the present chaotic state of the criminal law, where the necessity of pardon and favours accords with the absurdity of the laws and with the severity of sentences of punishment. This right of pardon is indeed the fairest prerogative of the throne, the most desirable attribute of sovereignty; it is, however, the tacit mark of disapproval that the beneficent dispensers of the public happiness exhibit towards a code, which with all its imperfections claims in its favour the prejudice of ages, the voluminous and imposing array of innumerable commentators, the weighty apparatus of unending formalities, and the adhesion of those persons of half-learning who, though less feared than real philosophers, are really more dangerous. But let it be remembered that clemency is the virtue of[191] the maker, not of the executor, of the laws; that it should be conspicuous in the code of laws rather than in particular judgments; that the showing to men, that crimes may be pardoned and that punishment is not their necessary consequence, encourages the hope of impunity, and creates the belief that sentences of condemnation, which might be remitted and are not, are rather violent exhibitions of force than emanations of justice. What shall be said then when the sovereign grants a pardon, that is, public immunity to an individual, and when a private act of unenlightened kindness constitutes a public decree of impunity? Let the laws therefore be inexorable and their administrators in particular cases inexorable, but let the law-maker be mild, merciful, and humane. Let him found his edifice, as a wise architect, on the basis of self-love; let the general interest be the sum of the interests of each, and he will no longer be constrained, by partial laws and violent remedies to separate at every moment the public welfare from that of individuals, and to raise the appearance of public security on fear and mistrust. As a profound and feeling philosopher let him allow men, that is, his brethren, to enjoy in peace that small share of happiness which is given them to enjoy in this corner of the universe, in that immense system established by the First Cause, by Him Who Is.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.
/ FORE:

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/ FORE:Something, however, occurred more fatal to the reform of our penal laws than even the philosophy of Paley, and that was the French Revolution. Before 1790 there had been 115 capital offences in France; so that to alter the criminal law in England was to follow a precedent of unpleasant auspices. Reform not unnaturally savoured of revolution, and especially a reform of the penal laws. In 1808 Romilly said he would advise anyone, who desired to realise the mischievous effects of the French Revolution in England to attempt some legislative reform on humane and liberal principles. With bitterness he tells the story of a young nobleman, who, addressing him insolently at the bar of the House of Commons, informed him that he for his part was for hanging all criminals. Romilly observed that he supposed he meant punishments should be certain and the laws executed, whatever they were. No, no, was the reply, it isnt that. There is no good done by mercy. They only get worse: I would hang them all up at once. And this represented the prevalent[59] opinion. Windham, in a speech against the Shoplifting Bill, inquired, Had not the French Revolution begun with the abolition of capital punishment in every case? Was such a system as this was to be set up without consideration against that of Dr. Paley![36]

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/ FORE:CHAPTER XIII. PROSECUTIONS AND PRESCRIPTIONS.

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THREE:For since the observance of some regular proportion between crime and punishment, whatever that proportion may be, constitutes the first principle of an[87] equitable code; and since the most important thing in public morality is a fixed penal estimate for every class of crime; it is above all things desirable that the law should always adhere to such proportion and estimate, by concerning itself solely with the crime and not with the criminal. The injury to the public is precisely the same whether a criminal has broken the law for the first time or for the thousandth and first; and to punish a man more severely for his second offence than for his first, because he has been punished before, is to cast aside all regard for that due proportion between crime and punishment which is after all the chief ingredient of retributive justice, and to inflict a penalty often altogether incommensurate with the injury inflicted on the public.Nothing could be more interesting than Lord Kames account of the growth of criminal law, from the rude revenges of savages to the legal punishments of civilised States; but it was probably intended by its author less as an historical treatise than as a veiled attack upon the penal system of his country. It is, therefore, a good illustration of the timidity of the Theoretical school against the overwhelming forces of the Practical school of law, which, of course, included[51] the great body of the legal profession; and it is the first sign of an attempt to apply the experience of other countries and times to the improvement of our own jurisprudence.
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THREE: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.Something, however, occurred more fatal to the reform of our penal laws than even the philosophy of Paley, and that was the French Revolution. Before 1790 there had been 115 capital offences in France; so that to alter the criminal law in England was to follow a precedent of unpleasant auspices. Reform not unnaturally savoured of revolution, and especially a reform of the penal laws. In 1808 Romilly said he would advise anyone, who desired to realise the mischievous effects of the French Revolution in England to attempt some legislative reform on humane and liberal principles. With bitterness he tells the story of a young nobleman, who, addressing him insolently at the bar of the House of Commons, informed him that he for his part was for hanging all criminals. Romilly observed that he supposed he meant punishments should be certain and the laws executed, whatever they were. No, no, was the reply, it isnt that. There is no good done by mercy. They only get worse: I would hang them all up at once. And this represented the prevalent[59] opinion. Windham, in a speech against the Shoplifting Bill, inquired, Had not the French Revolution begun with the abolition of capital punishment in every case? Was such a system as this was to be set up without consideration against that of Dr. Paley![36]
/ FORE:CHAPTER XXXVI. CRIMES OF DIFFICULT PROOF.

March 23rd, 2015 5 Comments

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/ FORE: This useless prodigality of punishments, by which men have never been made any better, has driven me to examine whether the punishment of death be really useful and just in a well organised government. What kind of right can that be which men claim for the slaughter of their fellow-beings? Certainly not that right which is the source of sovereignty and of laws. For these are nothing but the sum-total of the smallest portions of individual liberty, and represent the general will, that is, the aggregate of individual wills. But who ever wished to leave to other men the option of killing him? How in the least possible sacrifice of each mans liberty can there be a sacrifice of the greatest of all goods, namely, of life? And if there could be that sacrifice, how would such a principle accord with the other, that a man is not the[170] master of his own life? Yet he must have been so, could he have given to himself or to society as a body this right of killing him.

March 23rd, 2014 5 Comments

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March 25rd, 2014 5 Comments

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THREE:
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THREE:Corporal and painful punishments should not be inflicted for those crimes which have their foundation in pride, and draw from pain itself their glory and nutriment. For such crimes ridicule and infamy are more fitted, these being penalties which curb the[184] pride of fanatics by the pride of the beholders, and only let truth itself escape their tenacity by slow and obstinate efforts. By such an opposition of forces against forces, and of opinions against opinions, the wise legislator destroys that admiration and astonishment among a people, which a false principle causes, whose original absurdity is usually hidden from view by the plausible conclusions deduced from it.
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THREE:The close connection, therefore, of crime and punishment is of the utmost importance, if it be desirable that in rough and common minds there should, together with the seductive idea of an advantageous crime, immediately start up the associated idea of its punishment. Long delay has no other effect than the perpetual separation of these two ideas; and whatever the impression produced by the punishment of a crime, it produces it less as a punishment than as a sight, and only produces it when the horror of the particular crime, which would serve to strengthen the feeling of the punishment, has been weakened in the minds of the spectators.It is against crimes affecting the person that punishments are most desirable and their vindictive character most justly displayed. Personal violence calls for personal detention or personal chastisement;[102] and the principle of analogy in punishment is most appropriate in the case of a man who maltreats his wife or abuses his strength against any weakness greater than his own. Punishment in such cases is a demand of natural justice, whether anyone is affected by the example or not, and whether or not the man himself is improved by it. Not only is it the best means of enforcing that personal security which is one of the main functions of the State, but it is an expression of that sense of moral reprobation which is so necessary to the good order of society.
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This essay on the Imagination was published soon after the Crimes and Punishments in the periodical to which Beccaria alludes in his letter to Morellet. The Caff was the name of the periodical which, from June 1764, he and his friends published every tenth day for a period of two years. The model of the paper was the English Spectator, and its object to propagate useful knowledge pleasantly among the Milanese, whilst its name rested on the supposition that the friends who composed it executed their labours during meetings in a coffee-house. The most interesting contributions to it by Beccaria are his Fragment on Style, his article on Periodical Newspapers, and his essay on the Pleasures of the Imagination.One thing that might be done, which would also serve at the same time to keep a prisoners family from want, the main source of crime, would be the formation of a Prisoners Fund, for his and their benefit. For this there is a precedent in a quite recent Act. For the Act, which abolished the forfeiture of a felons property, enabled the Crown to appoint an administrator of it, for the benefit of the persons injured by the crime and the felons family, the property itself and its income reverting ultimately to the convict or to his representatives. There could, however, be no objection in justice to the forfeiture of a proportionate part of every felons property, such forfeiture to be dedicated to the formation of a fund, out of which assistance should be given, both to the families of prisoners during their custody and to the prisoners themselves on their discharge.[62] Such a fund might be still further increased by the substitution of a lien on a mans wages or income for many minor offences now punished, but not prevented, by imprisonment.The publication of the Delitti e delle Pene interrupted its authors dreams of philosophical calm, by fulfilling his hopes of literary fame. The French encyclop?dists were the first to recognise its merits, and DAlembert, the mathematician, at once predicted for the writer the reward of an immortal[13] reputation. Morellets translation, in which the arrangement, though not the matter of the text, was entirely altered, ran through seven editions in six months, and Beccaria, as has been seen, was only too delighted with the honour thus conferred on him to complain in any way of the liberties taken by the translator with the original. The first consequence of these principles is, that the laws alone can decree punishments for crimes, and this authority can only rest with the legislator, who represents collective society as united by a social contract. No magistrate (who is part of society) can justly inflict punishments upon another member of the same society. But since a punishment that exceeds the legally fixed limit is the lawful punishment plus another one, a magistrate can, under no pretext of zeal or the public good, add to the penalty already decreed against a delinquent citizen.
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