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So great, however, did the changes appear to be, that Sir James Mackintosh declared, towards the close of his life, that it was as if he had lived in two different countries, such was the contrast between the past and the present. Yet Sir James died in the very year that the first Reform Bill passed, and it was not till after that event that any really great progress was made towards ameliorating the penal laws.A man accused of a crime, imprisoned and acquitted, ought to bear no mark of disgrace. How many Romans, accused of the gravest crimes and then found innocent, were reverenced by the people and honoured with magisterial positions! For what reason, then, is the lot of a man innocently accused so different in our own times? Because, in the criminal system now in vogue, the idea of force and might is stronger in mens minds than the idea of justice; because accused and convicted are thrown in confusion into the same dungeon; because imprisonment is rather a mans punishment than his mere custody; and because the two forces which should be united are separated from[134] one another, namely, the internal force, which protects the laws, and the external force, which defends the throne and the nation. Were they united, the former, through the common sanction of the laws, would possess in addition a judicial capacity, although independent of that possessed by the supreme judicial power; and the glory that accompanies the pomp and ceremony of a military body would remove the infamy, which, like all popular sentiments, is more attached to the manner than the thing, as is proved by the fact that military prisons are not regarded in public estimation as so disgraceful as civil ones. There still remain among our people, in their customs and in their laws (always a hundred years, in point of merit, in arrear of the actual enlightenment of a nation), there still remain, I say, the savage impressions and fierce ideas of our ancestors of the North. Not only is it the general interest that crimes should not be committed, but that they should be rare in proportion to the evils they cause to society. The more opposed therefore that crimes are to the public welfare, and the more numerous the incentives to them, the stronger should be the repellent obstacles. This principle accordingly establishes the necessity of a certain proportion between crimes and punishments.

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TWO:[19]CHAPTER IV. INTERPRETATION OF THE LAWS.

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THREE:It was translated into English long ago; but the change in the order of the several chapters and paragraphs, which the work underwent before it was clothed in its final dress, is so great, that the new translation and the old one really constitute quite different books.

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THREE: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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THREE:Against this general uncertainty of punishment, which no severity in the law can affect or make up for, the only certainty of punishment dependent on the law is in the event of conviction. But even this certainty is of a very qualified nature, for it depends on sentiments of due proportion between a crime and its penalty, which in no two men are the same. Every increase of severity in punishment diminishes its certainty, since it holds out to a criminal fresh hopes of impunity from the clemency of his judges, prosecutors, or jury.

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THREE:

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THREE:Are the same penalties equally useful in all times?

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THREE: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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TWO:Again, Proportion between crime and punishment seems to be another natural demand of equity. Yet it is evident that it is only approximately possible, and will vary in every age and country according to the prevalent notions of morality. Is imprisonment for a year, or imprisonment for life, or for how long, a fair and proportionate punishment for perjury? Who shall decide? Shall we submit it to the opinion of the judges? But has not Romilly left on record the story of the two men tried by two different judges for stealing some chickens, who were sentenced respectively one to imprisonment for two months, and the other to transportation? Shall we then give up all attempt at proportion and apply the same deterrent as equally efficacious against slight or grave offences? Draco, when asked why he made death the punishment for most offences that were possible, is said to have replied, Small ones deserve it, and I can find no greater for the gravest. The same reasoning was for a long time that of our own law; and in Japan,[78] where every wrong act was one of disobedience to the Emperor, and accordingly of equal value, the same penalty of death for gambling, theft, or murder, obviated all difficulties with regard to a proportion which is easier to imagine than it is to define.

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THREE:CHAPTER XXIII. PROPORTION BETWEEN CRIMES AND PUNISHMENTS.

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THREE:Count Pietro Verri was the son of Gabriel, who was distinguished alike for his legal knowledge and high position in Milan. At the house of Pietro, Beccaria and the other friends used to meet for the discussion and study of political and social questions. Alessandro, the younger brother of Pietro, held the office of Protector of Prisoners, an office which consisted in visiting the prisons, listening to the grievances of the inmates, and discovering, if possible, reasons for their defence or for mercy. The distressing sights he[10] was witness of in this capacity are said to have had the most marked effect upon him; and there is no doubt that this fact caused the attention of the friends to be so much directed to the state of the penal laws. It is believed to have been at the instigation of the two brothers that Beccaria undertook the work which was destined to make his name so famous.The multiplication of the human race, slight in the abstract, but far in excess of the means afforded by nature, barren and deserted as it originally was, for the satisfaction of mens ever increasing wants, caused the first savages to associate together. The first unions necessarily led to others to oppose them, and so the state of war passed from individuals to nations.

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THREE:CHAPTER XXXI. SMUGGLING. 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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TWO:The second consequence is, that the sovereign, who represents society itself, can only form general laws, obligatory on all; he cannot judge whether[125] any one in particular has broken the social compact, for in that case the nation would be divided into two parties, one represented by the sovereign, asserting the violation of such contract; the other by the accused, denying the same. Hence the necessity of a third person to judge of the fact; in other words, of a magistrate, whose decisions shall simply consist of affirmations or denials of particular facts, and shall also be subject to no appeal.The result, then, of torture is a matter of temperament, of calculation, which varies with each man according[152] to his strength and sensibility; so that by this method a mathematician might solve better than a judge this problem: Given the muscular force and the nervous sensibility of an innocent man, to find the degree of pain which will cause him to plead guilty to a given crime.

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3. When the proofs are independent of each otherthat is to say, when they do not derive their value one from the otherthen the more numerous the proofs adduced, the greater is the probability of the fact in question, because the falsity of one proof affects in no way the force of another.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.In France Beccarias 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 rgime. At the very beginning of the Revolution more than a hundred different offences ceased to incur the penalty of death.CHAPTER IX. SECRET ACCUSATIONS.
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