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But whether the international extradition of criminals be useful I would not venture to decide, until laws more in conformity with the needs of humanity, until milder penalties, and until the emancipation of law from the caprice of mere opinion, shall have given[194] security to oppressed innocence and hated virtue; until tyranny shall have been confined, by the force of universal reason which ever more and more unites the interests of kings and subjects, to the vast plains of Asia; however much the conviction of finding nowhere a span of earth where real crimes were pardoned might be the most efficacious way of preventing their occurrence.

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  • ONE:The case of infanticide suggests similar thoughts. When we remember that both Plato and Aristotle commended as a valuable social custom that which we treat as a crime; when we recall the fact that the life of a Spartan infant depended on a committee of elders, who decided whether it should live or perish, we shall better appreciate the distance we have travelled, or, as some would say, the progress we have made, if we take up some English daily paper and read of some high-minded English judge sentencing, at least formally, some wretched woman to death, because, in order to save her child from starvation or herself from shame, she has released it from existence. Yet the feeling, of which such a sentence is the expression, is often extolled as one of the highest triumphs of civilisation; and the laws, as if there were no difference between adult and infant[76] life, glory in protecting the weakness of a child by their merciless disregard for the weakness of its mother. TWO:
  • ONE: TWO:
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TWO:A man cannot be called guilty before sentence has been passed on him by a judge, nor can society deprive him of its protection till it has been decided that he has broken the condition on which it was granted. What, then, is that right but one of mere might by which a judge is empowered to inflict a punishment on a citizen whilst his guilt or innocence are still undetermined? The following dilemma is no new one: either the crime is certain or uncertain; if certain, no other punishment is suitable for it than that affixed to it by law; and torture is useless, for the same reason that the criminals confession is useless. If it is uncertain, it is wrong to torture an[149] innocent person, such as the law adjudges him to be, whose crimes are not yet proved.
FORE:CHAPTER XXII. OF PROSCRIPTION.
  • THREE:Yet Lord Ellenborough was one of the best judges known to English history; he was, according to his biographer, a man of gigantic intellect, and one of the best classical scholars of his day; and if he erred, it was with all honesty and goodness of purpose. The same must be said of Lord Chief Justice Tenterdens opposition to any change in the law of forgery. His great merits too as a judge are matter of history, yet when the Commons had passed the bill for the abolition of capital punishment for forgery, Lord Tenterden[65] assured the House of Lords that they could not without great danger take away the punishment of death. When it was recollected how many thousand pounds, and even tens of thousands, might be abstracted from a man by a deep-laid scheme of forgery, he thought that this crime ought to be visited with the utmost extent of punishment which the law then wisely allowed. The House of Lords again paused in submission to judicial authority.

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  • THREE:There is an apparent discrepancy in Beccarias first condemning death as too severe a punishment and then recommending lifelong servitude as one of more deterrent power; but Beccaria would have said that the greater certainty of the latter more than compensated for the greater severity of the other. As regards the relative power of the two punishments, it probably varies in different individuals, some men having a greater dread of the one, and some of the other. The popular theory certainly goes too far, when it assumes that all men have a greater dread of the gallows than of anything else. When George III. once granted a pardon to the female convicts in Newgate on condition of their transportation to New South Wales, though seventeen of them accepted[39] the offer, there were yet six who preferred death to a removal from their native country. It is also stated by Howard that in Denmark the punishment in cases of infanticide, namely, imprisonment for life, with labour and an annual whipping on the place of the crime, was dreaded more than death, which it superseded as a punishment.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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  • 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:What will be the penalty suitable for such and such crimes?

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  • THREE: The reason for translating afresh Beccarias Dei Delitti e delle Pene (Crimes and Punishments) is, that it is a classical work of its kind, and that the interest which belongs to it is still far from being merely historical.

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  • THREE:Lastly, the surest but most difficult means of preventing crimes is to improve educationa subject too vast for present discussion, and lying beyond the limits of my treatise; a subject, I will also say, too intimately connected with the nature of government for it ever to be aught but a barren field, only cultivated here and there by a few philosophers, down to the remotest ages of public prosperity. A great man, who enlightens the humanity that persecutes him, has shown in detail the chief educational maxims of real utility to mankind; namely, that it consists less in a barren multiplicity of subjects than in their choice selection; in substituting originals for copies in the moral as in the physical phenomena presented by chance or intention to the fresh minds of youth; in inclining them to virtue by the easy path of feeling;[251] and in deterring them from evil by the sure path of necessity and disadvantage, not by the uncertain method of command, which never obtains more than a simulated and transitory obedience.

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FORE:That these causes do to a great extent defeat the preventive effect of our penal laws, is proved by the tale of our criminal statistics, which reveal the fact that most of our crime is committed by those who[100] have once been punished, and that of general crime about 77 per cent. is committed with impunity. But if so large a proportion of crimes pass unpunished altogether, it is evident that society depends much less for its general security upon its punishments than is commonly supposed. Might it not, therefore, still further relax such punishments, which are really a severe tax on the great majority of honest people for the repression of the very small proportion who constitute the dishonest part of the community?[58]

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FORE: If the interpretation of laws is an evil, it is clear that their obscurity, which necessarily involves interpretation, must be an evil also, and an evil which will be at its worst where the laws are written in any other than the vernacular language of a country. For in that case the people, being unable to judge of themselves how it may fare with their liberty or their limbs, are made dependent on a small class of men; and a book, which should be sacred and open to all, becomes, by virtue of its language, a private and, so to speak, a family manual.
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FORE:
THREE:Who can read history without being horror-struck at the barbarous and useless torments which men, who were called wise, in cold blood devised and executed? Who is there but must feel his blood boil, when he regards the thousands of wretches whom misery, either intended or tolerated by the laws (which have always favoured the few and outraged the many), has driven to a desperate return to the original state of nature; when he sees them either accused by men endowed with the same senses, and consequently with the same passions as themselves, of impossible crimes, the fiction of timid ignorance, or guilty of nothing but fidelity to their own principles; and when he sees them lacerated by slow tortures, subject to well-contrived formalities, an agreeable sight for a fanatical multitude?But if the interest of Beccarias chapter on Torture is now merely historical, an interest that is actual still attaches to his advocacy of the total abolition of capital punishment, this being the cause with which his name is most generally associated, and for which it is likely to be longest remembered. Previous writers, like Montaigne, if they deprecated the excess or severity of the death penalty, never thought of urging that it should be abolished altogether. Sign Up
FORE:
    FORE: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.
THREE:The Chinese penal code of 1647 is probably the nearest approach to Beccarias conception, and nothing is more marvellous than the precision with which it apportions punishments to every shade of crime, leaving no conceivable offence, of commission or[86] omission, without its exact number of bamboo strokes, its exact pecuniary penalty, or its exact term or distance of banishment. It is impossible in this code to conceive any discretion or room for doubt left to the judicial officers beyond the discovery of the fact of an alleged crime. But what is practicable in one country is practicable in another; so that the charge so often urged against thus eliminating judicial discretion, that it is fair in theory but impossible in practice, finds itself at direct issue with the facts of actual life. I lead a tranquil and solitary life, if a select company of friends in which the heart and mind are in continual movement can be called solitude. This is my consolation, and prevents me feeling in my own country as if I were in exile. Sign Up
THREE:Would you prevent crimes, then cause the laws to be clear and simple, bring the whole force of a nation to bear on their defence, and suffer no part of it to be busied in overthrowing them. Make the laws to favour not so much classes of men as men themselves. Cause men to fear the laws and the laws alone. Salutary is the fear of the law, but fatal and fertile in crime is the fear of one man of another. Men as slaves are more sensual, more immoral, more cruel than free men; and, whilst the latter give their minds to the sciences or to the interests of their country, setting great objects before them as their model, the former, contented with the passing day, seek in the excitement of libertinage a distraction from the nothingness of their existence, and, accustomed to an uncertainty of result in everything, they look upon the result of their crimes as uncertain too, and so decide in favour of the passion that tempts them. If uncertainty of the laws affects a nation, rendered indolent by its climate, its indolence and stupidity is thereby maintained and increased; if it affects a nation, which though fond of pleasure is also full of energy, it wastes that energy in a number of petty cabals and intrigues, which spread distrust in every heart, and make treachery and dissimulation the foundation of prudence; if, again, it affects a[245] courageous and brave nation, the uncertainty is ultimately destroyed, after many oscillations from liberty to servitude, and from servitude back again to liberty.Even the idea of public utility as the final test and standard of morality is derived from Beccaria, and the famous expression, the greatest happiness of the greatest number, occurs, in capital letters, in the very first page of the Delitti e delle Pene.[30] Bentham himself fully acknowledged this. Priestley was the first, he says, unless it was Beccaria, who taught my lips to pronounce this sacred truth: that the[47] greatest happiness of the greatest number is the foundation of morals and happiness. And with reference to his idea of the measurable value of different pains and pleasures, he says: It was from Beccarias little treatise on Crimes and Punishments that I drew, as I well remember, the first hint of this principle, by which the precision and clearness and incontestableness of mathematical calculations are introduced for the first time into the field of morals. Sign Up

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FORE:
FORE: 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.CHAPTER VI. IMPRISONMENT.
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FORE:It is well known that Lord Tenterden refused ever to sit again in the House of Lords if the Reform Bill became law, and that he predicted that that measure would amount to the political extinction of the Upper House. As regards the history of our criminal law Lord Tenterden was right, for the period of long pauses had passed away, and rapid changes were made with but short intervals of breathing-time. From the year the Reform Bill passed the school of Beccaria and Bentham achieved rapid successes in England. In 1832 it ceased to be capital to steal a horse or a sheep, in 1833 to break into a house, in 1834 to return prematurely from transportation, in 1835 to commit sacrilege or to steal a letter. But[67] even till 1837 there were still 37 capital offences on the statute-book; and now there are only two, murder and treason. Hanging in chains was abolished in 1834; the pillory was wholly abolished in 1837; and the same year Ewart, after many years struggle, obtained for prisoners on trial for felony the right (still merely a nominal one)[39] of being defended by counsel.
The voice of a philosopher is too feeble against the noise and cries of so many followers of blind custom, but the few wise men scattered over the face of the earth will respond to me from their inmost hearts; and, amid the many obstacles that keep it from a monarch, should truth perchance arrive in spite of him at his throne, let him know that it comes there attended by the secret wishes of all men; let him know that before his praises the bloody fame of conquerors will be silenced, and that posterity, which is just, will assign him the foremost place among the pacific triumphs of a Titus, an Antonine, or a Trajan.CHAPTER XXI. ASYLUMS OF REFUGE.A man cannot be called guilty before sentence has been passed on him by a judge, nor can society deprive him of its protection till it has been decided that he has broken the condition on which it was granted. What, then, is that right but one of mere might by which a judge is empowered to inflict a punishment on a citizen whilst his guilt or innocence are still undetermined? The following dilemma is no new one: either the crime is certain or uncertain; if certain, no other punishment is suitable for it than that affixed to it by law; and torture is useless, for the same reason that the criminals confession is useless. If it is uncertain, it is wrong to torture an[149] innocent person, such as the law adjudges him to be, whose crimes are not yet proved. 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.The Translator has abstained from all criticism or comment of the original, less from complete agreement[vi] with all its ideas than from the conviction that annotations are more often vexatious than profitable, and are best left to the reader to make for himself. There is scarcely a sentence in the book on which a commentator might not be prolix.
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