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ONE: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.In France Beccaria��s book became widely popular, and many writers helped to propagate his ideas, such as Servan, Brissot, Lacretelle, and Pastoret. Lacretelle attributes the whole impulse of criminal law reform to Beccaria, while regretting that Montesquieu had not said enough to attract general attention to the subject. His book is said to have so changed the spirit of the old French criminal tribunals, that, ten years before the Revolution, they bore no resemblance to their former selves. All the younger magistrates gave their judgments more according to the principles of Beccaria than according to the text of the law.[21][35] The result of the agitation appeared in the Royal Ordinances of 1780 and 1788, directed to the diminution of torture, the only reforms which preceded the Revolution. It is said that the last time anyone was tortured in France was in the year 1788, the last year of the ancien r��gime. At the very beginning of the Revolution more than a hundred different offences ceased to incur the penalty of death. TWO:But the man who sees in prospect a great number of years, or perhaps the whole of his life, to be passed in servitude and suffering before the eyes of fellow-citizens with whom he is living in freedom and friendship, the slave of those laws which had once protected him, makes a useful comparison of all these circumstances with the uncertain result of his crimes and with the shortness of the time for which he would enjoy their fruits. The ever present example of those whom he actually sees the victims of their own imprudence, impresses him much more strongly than the sight of a punishment which hardens rather than corrects him.CHAPTER XIII. PROSECUTIONS AND PRESCRIPTIONS.

FORE:Offences, therefore, against personal security and liberty are among the greatest of crimes. Under this head fall not only the assassinations and thefts of the common people, but those also committed by the nobles and magistrates, whose influence, acting with greater force and to a greater distance, destroys in those subject to them all ideas of justice and duty, and gives strength to those ideas of the right of the strongest, which are equally perilous ultimately to him who exercises no less than to him who endures it.

THREE:CHAPTER XXXVII. OF A PARTICULAR KIND OF CRIME.

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THREE:There is a remarkable contradiction between the civil laws, which set so jealous and supreme a guard upon individual life and property, and the laws of so-called honour, which set opinion above everything. This word honour is one of those that have served as the basis for long and brilliant argumentations, without any fixed or permanent idea being attached to it. How miserable is the condition of human minds, more distinctly cognisant of the remotest and least important ideas about the movements of the heavenly bodies, than of those near and important moral notions, which are ever fluctuating and confused, according as the winds of passion impel them and a well-guided ignorance receives and transmits them! But the seeming paradox will vanish, if one considers, that, as objects become confused when too near the eyes, so the too great propinquity of moral ideas easily causes the numerous simple ideas which compose them to become blended together, to the confusion of those clear lines of demarcation demanded by the geometrical spirit, which would fain measure exactly the phenomena of human sensibility. And the wonder will vanish altogether from the impartial student of human affairs, who will suspect that so great a moral machinery and so many restraints are perchance not needed, in order to render men happy and secure.

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THREE: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 truth��a 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.��The following letter by Beccaria to the Abb�� Morellet in acknowledgment of the latter��s translation of his treatise is perhaps the best introduction to the life and character of the author. The letter in question has been quoted by Villemain in proof of the debt owed by the Italian literature of the last century to that of France, but from the allusions therein contained to Hume and the ��Spectator�� it is evident that something also was due to our own. Beccaria had spent eight years of his youth in the college of the Jesuits at Parma, with what sense of gratitude this letter will show. The following is a translation of the greater part of it:��

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THREE: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.

THREE:

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THREE:Would you prevent crimes, then see that enlightenment accompanies liberty. The evils that flow from knowledge are in inverse ratio to its diffusion; the benefits directly proportioned to it. A bold impostor, who is never a commonplace man, is adored by an ignorant people, despised by an enlightened one. Knowledge, by facilitating comparisons between objects and multiplying men��s points of view, brings many different notions into contrast, causing them to modify one another, all the more easily as the same views and the same difficulties are observed in others. In the face of a widely diffused national enlightenment the calumnies of ignorance are silent, and authority, disarmed of pretexts for its manifestation, trembles; whilst the rigorous force of the laws remains unshaken, no one of education having any dislike to the clear and useful public compacts which secure the common safety, when he compares the trifling and useless liberty sacrificed by himself with the sum-total of all the liberties sacrificed by others, who without the laws might have been hostile to himself. Whoever has a sensitive soul, when he contemplates a code of well-made laws, and finds that he has only lost the pernicious liberty of injuring others, will feel[246] himself constrained to bless the throne and the monarch that sits upon it.

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THREE:Capital punishment becomes a spectacle for the majority of mankind, and a subject for compassion and abhorrence for others; the minds of the spectators are more filled with these feelings than with the wholesome terror the law pretends to inspire. But in moderate and continuing penalties the latter is the predominant feeling, because it is the only one. The limit, which the legislator should affix to the severity of penalties, appears to lie in the first signs of a feeling[173] of compassion becoming uppermost in the minds of the spectators, when they look upon the punishment rather as their own than as that of the criminal.

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THREE: It is better to prevent crimes than to punish them. This is the chief aim of every good system of legislation, which is the art of leading men to the greatest possible happiness or to the least possible misery,[243] according to calculation of all the goods and evils of life. But the means hitherto employed for this end are for the most part false and contrary to the end proposed. It is impossible to reduce the turbulent activity of men to a geometrical harmony without any irregularity or confusion. As the constant and most simple laws of nature do not prevent aberrations in the movements of the planets, so, in the infinite and contradictory attractions of pleasure and pain, disturbances and disorder cannot be prevented by human laws. Yet this is the chimera that narrow-minded men pursue, when they have power in their hands. To prohibit a number of indifferent acts is not to prevent the crimes that may arise from them, but it is to create new ones from them; it is to give capricious definitions of virtue and vice which are proclaimed as eternal and immutable in their nature. To what should we be reduced if everything had to be forbidden us which might tempt us to a crime? It would be necessary to deprive a man of the use of his senses. For one motive that drives men to commit a real crime there are a thousand that drive them to the commission of those indifferent acts which are called crimes by bad laws; and if the likelihood of crimes is proportioned to the number of motives to commit them, an increase of the field of crimes is an increase of the likelihood of their commission. The majority of laws are nothing but[244] privileges, or a tribute paid by all to the convenience of some few.

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FORE:The most successful adoption of Beccaria��s principles of punishment occurred in Tuscany, under the Grand Duke Leopold. When he ascended the ducal throne, the Tuscans were the most abandoned people of all Italy. Robberies and murders were none the less frequent for all the gallows, wheels, and tortures which were employed to repress them. But Leopold in 1786 resolved to try Beccaria��s plan, for which purpose he published a code, proportioning punishments to crimes, abolishing mutilation and torture, reducing the number of acts of treason, lessening confiscations, destroying the right of asylum, and above all abolishing capital punishment even for murder. The result was, says a contemporary, that Tuscany, from having been the land of the greatest crimes and villanies, became ��the best ordered State of Europe.��[22] During twenty years only five murders were committed in Tuscany, whilst at Rome, where death continued to be inflicted with great pomp, as[36] many as sixty were committed within the space of three months.[23]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.

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FORE:I conclude with this reflection, that the scale of punishments should be relative to the condition of a nation. On the hardened minds of a people scarcely emerged from the savage state the impressions made should be stronger and more sensible. One needs a[169] thunderbolt for the destruction of a fierce lion that faces round at the shot of a gun. But in proportion as men��s minds become softened in the social state, their sensibility increases, and commensurate with that increase should be the diminution of the force of punishment, if it be desired to maintain any proportion between the object and the sensation that attends it. FORE: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.There seem to be three principal reasons why, under our present system, crime still keeps its general level, irrespective of all changes in our degrees of punishment. FORE:But commerce and the interchange of the pleasures of luxury have this drawback, that however many persons are engaged in their production, they yet begin and end with a few, the great majority of men only enjoying the smallest share of them, so that the feeling of misery, which depends more on comparison than on reality, is not prevented. But the principal basis of this happiness I speak of is personal security and liberty under the limitations of the law; with these the pleasures of luxury favour population, and without them they become the instrument of tyranny. As the noblest wild beasts and the freest birds remove to solitudes and inaccessible forests, leaving the fertile and smiling plains to the wiles of man, so men fly from pleasures themselves when tyranny acts as their distributor. Our laws prohibit suggestive (leading) questions in a lawsuit: those, that is (according to the doctors of law), which, instead of applying, as they should do,[145] to the genus in the circumstances of a crime, refer to the species; those, in other words, which from their immediate connection with a crime suggest to the accused a direct answer. Questions, according to the criminal lawyers, ought, so to speak, ��to envelop the main fact spirally and never to attack it in a direct line.�� The reasons for this method are, either that an answer may not be suggested to the accused which may place him face to face with the charge against him, or perhaps because it seems unnatural for him directly to criminate himself. But, whichever of these reasons it may be, the contradiction is remarkable between the existence of such a custom and the legal authorisation of torture; for what interrogatory can be more suggestive than pain? The former reason applies to the question of torture, because pain will suggest to a strong man obstinate silence, in order that he may exchange the greater penalty for the lesser, whilst it will suggest to a weak man confession, in order that he may escape from present torment, which has more influence over him than pain which is to come. The other reason evidently applies too, for if a special question leads a man to confess against natural right, the agonies of torture will more easily do the same. But men are more governed by the difference of names than by that of things.

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FORE:It may be said that all such absurdities are past; that the Jews, the Athenians, the Chinese, the Europeans of the middle ages can scarcely be cited as reasonable beings; that they had no rational theory of punishment, and that their errors have been long since discarded. But at least their example suggests that even in our own system there may be inconsistencies and blemishes which custom and authority hide from our eyes.

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FORE:Beccaria himself was ready enough to refer all his thoughts to French inspiration, and to lay aside all claim to originality, with respect to which D��Alembert once wrote to him: ��A man such as you has no need of a master, still less of a master like myself. You are like the Titus Curtius of Tacitus, ex se natus, nor have your offspring any grandparent. A father like yourself is enough for them.��That force, similar to the force of gravitation, which constrains us to seek our own well-being, only admits of counteraction in proportion to the obstacles[198] opposed to it. The effects of this force make up the confused series of human actions; if these clash together and impede one another, punishments, which I would call political obstacles, prevent bad effects from resulting, without destroying the impelling cause, which lies in the sensibility inseparable from humanity; and the legislator, in enacting them, acts the part of a clever architect, whose function it is to counteract the tendency of gravitation to cause a building to fall, and to bring to bear all the lines which contribute to its strength.

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FORE:English philosophy and legislation, therefore, owe enough to Beccaria for his treatise never to be forgotten among us. Standing, as it does, in reference to law as Bacon��s ��Novum Organon�� to science, or Descartes�� Principia�� to philosophy, and representing a return to first principles and rejection of mere precedent in the matter of penal laws, it will never fail to gratify those who, with little admiration for law in the concrete, can yet find pleasure in studying it in the abstract. Most men will turn readily from a system built up, as our own is, of unintelligible distinctions, and based on authority rather than on experience, to a system where no distinctions exist save those which are derived from the nature of things and are founded on the real differences that distinguish the moral actions of mankind.

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