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Any action that is not included between the two above-indicated extremes can only be called a crime or punished as such by those who find their interest in so calling it. The uncertainty of these limits has produced in different nations a system of ethics contrary to the system of laws, has produced many actual systems of laws at total variance with one another, and a quantity of laws which expose even the wisest man to the severest penalties. Consequently the words virtue and vice have become of vague and variable meaning, and from the uncertainty thus surrounding individual existence, listlessness and a fatal apathy have spread over political communities.

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There are a few obvious remedies by which the inducements to crime might be easily diminished. In 1808 Sir Samuel Romilly brought in a bill, to provide persons tried and acquitted of felony with compensation, at the discretion of the judge, for the loss they incurred by their detention and trial. This was objected to, on the ground that the payment of such compensation out of the county rates would discourage prosecutions; and the only justice done to men falsely accused from that day to this is the authorisation given to goal-governors in 1878 to provide prisoners, who have been brought from another county for trial at the assizes and have been acquitted, with means of returning to their own homes. Something more than this is required to save a man so situated from falling into real crime.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: Email : support@yourdomain.com  |  Download Software / App  |  Call : +61-123-456-789
ONE:The greater the number of those who understand and have in their hands the sacred code of the laws, the fewer will be the crimes committed; for it is beyond all doubt that ignorance and uncertainty of punishments lend assistance to the eloquence of the passions. Yet what shall we think of mankind, when we reflect, that such a condition of the laws is the inveterate custom of a large part of cultivated and enlightened Europe?Hence both in the state of extreme political liberty and in that of extreme political subjection the ideas of honour disappear or get perfectly confused with others. For in the former the despotism of the laws renders the pursuit of the favour of others of no avail; and in the latter state the despotism of men, by destroying civil existence, reduces everybody to a precarious and temporary personality. Honour, therefore, is one of the fundamental principles of those monarchies that are a mitigated form of despotism, being to them what revolutions are to despotic States, namely, a momentary return to the state of nature, and a reminder to the chief ruler of the condition of primitive equality.
TWO:A childs simple philosophy of punishment therefore is after all the correct one, when it tells you without hesitation that the reason a man is punished for a bad action is simply because he deserves it. The notion of desert in punishment is based entirely on feelings of the justice of resentment. So that the[83] primary aim of legal punishment is precisely the same as may be shown historically to have been its origin, namely, the regulation by society of the wrongs of individuals. In all early laws and societies distinct traces may be seen of the transition of the vendetta, or right of private revenge, from the control of the person or family injured by a crime to that of the community at large. The latter at first decided only the question of guilt, whilst leaving its punishment to the pleasure of the individuals directly concerned by it. Even to this day in Turkey sentences of death for murder run as follows: So-and-so is condemned to death at the demand of the victims heirs; and such sentences are sometimes directed to be carried out in their presence.[45] By degrees the community obtained control of the punishment as well, and thus private might became public right, and the resentment of individual injuries the Retributive Justice of the State.

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ONE: 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.Since, therefore, there is more to fear from a punished than from an unpunished criminal, there is the less reason to regret the general impunity of crime. There is indeed a large class of crimes for the prevention of which more would be done, by leaving them to their natural consequences, and to the strong power against them which the general interests and moral feelings of mankind will always enforce, than by actual punishment. It is particularly crimes of dishonesty which are best punished by the mere fact of their discovery. By the Norwegian law if an offender holds any official place he is punished, not by fine or imprisonment, but by the loss of his office and all the privileges connected with it.[59] And if we imagine a country without any legal penalty at all for theft or dishonesty, thieves and their tribe would soon find their proper punishment, by that process of social shifting, which would drive them to the most deleterious or dangerous occupations of life even more effectually than it so drives them at present. The less dependence is placed on the penal sanctions of crime, the stronger do the moral restraints from it become.
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THREE: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.

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THREE:But of far greater historical interest than such criticism is that of Ramsay, the Scotch poet and painter, to whom a copy of Beccarias treatise had been shown by Diderot, and who wrote a letter about it to the latter, which, though it contains some very just criticisms on Beccaria, yet reads for the most part very curiously by the light of subsequent history, and illustrates graphically the despair of all reform then felt by most men of reflection.[8]

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THREE:Such considerations as these will, perhaps, lead some day to the abolition of capital punishment. The final test of all punishment is its efficiency, not its humanity. There is often more inhumanity in a long sentence of penal servitude than in a capital sentence, for the majority of murderers deserve as little mercy as they get. The many offences which have ceased to be capital in English law yielded less to a sense of the inhumanity of the punishment as related to the crime than to the experience that such a punishment led to almost total impunity. The bankers, for instance, who petitioned Parliament to abolish capital punishment for forgery, did so, as they said, because they found by experience that the infliction of death, or the possibility of its infliction, prevented the prosecution, the conviction, and the punishment of the criminal; therefore they begged for that protection for their property which they would derive from a more lenient law.

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DAlembert, Diderot, Helvetius, Buffon, Hume, illustrious names, which no one can hear without emotion! Your immortal works are my continual study, the object of my occupation by day, of my meditation in the silence of night. Full of the truth which you teach, how could I ever have burned incense to worshipped error, or debased myself to lie to posterity? I find myself rewarded beyond my hopes[6] in the signs of esteem I have received from these celebrated persons, my masters. Convey to each of these, I pray you, my most humble thanks, and assure them that I feel for them that profound and true respect which a feeling soul entertains for truth and virtue.Even if we assume that death is absolutely the severest penalty devisable by the law, and that as a punishment for murder it is not too severe, it remains certain, that, relatively to the circumstances of a trial[40] for murder, to the reluctance of judges or juries to pass an irretrievable sentence, to their fear of error, to their conscientious regard for human life, it is really a much less terrible danger for a malefactor to face than a penalty which would justify fewer hopes of impunity.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.It would also seem to demand no great insight to perceive that a voluntary intention must be a universal attribute of a criminal action. No one would think of punishing a man who in his sleep killed another, although, if the injury to society be the measure of punishment, his crime is equivalent to intentional homicide. Yet at Athens an involuntary murderer was banished until he could, give satisfaction to the relatives of the deceased; and in China, though the penal code generally separates intentional from accidental crimes, anyone who kills a near relation by accident or commits certain kinds[72] of arson by accident undergoes different degrees of banishment and a fixed number of bamboo strokes.[40]It has already been remarked by Montesquieu that public accusations are more suited to republics, where the public good ought to be the citizens first passion, than to monarchies, where such a sentiment is very feeble, owing to the nature of the government itself, and where the appointment of officers to accuse transgressors of the law in the name of the public is a most excellent institution. But every government, be it republican or monarchical, ought to inflict upon a false accuser the same punishment which, had the accusation been true, would have fallen upon the accused.
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