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It is remarkable that a book which has done more for law reform than any other before or since should have been written by a man who was not a lawyer by profession, who was totally unversed in legal practice, and who was only twenty-six when he attacked a system of law which had on its side all authority, living and dead. Hume was not twenty-seven when[4] he published his Treatise on Human Nature, nor was Berkeley more than twenty-six when he published his Principles of Human Knowledge. The similar precocity displayed by Beccaria is suggestive, therefore, of the inquiry, how far the greatest revolutions in the thoughts or customs of the world have been due to writers under thirty years of age.

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CHAPTER XVIII. INFAMY.A few years earlier Beccaria could have imagined no greater honour. To associate with the philosophers he so highly reverenced, as a philosopher himself, what greater happiness or reward could he have asked? Yet when it came there was no charm in it; and it was with difficulty he could be persuaded to go. For with his love for distinction there came into competition the love of his wife, and if he preferred her company to that of the wisest and wittiest celebrities of Paris, who shall say that he was the worse philosopher for that? Suicide is a crime to which a punishment properly so called seems inadmissible, since it can only fall upon the innocent or else upon a cold and insensible body. If the latter mode of punishing the crime makes no more impression on the living than would be made by inflicting violence on a statue, the other mode is unjust and tyrannical, inasmuch as political freedom necessarily presupposes the purely personal nature of[223] punishment. Men love life only too much, and everything that surrounds them confirms them in this love. The seductive image of pleasure, and hope, that sweetest illusion of mortals, for the sake of which they swallow large draughts of evil mixed with a few drops of contentment, are too attractive, for one ever to fear, that the necessary impunity of such a crime should exercise any general influence. He who fears pain, obeys the laws; but death puts an end in the body to all the sources of pain. What, then, will be the motive which shall restrain the desperate hand of the suicide?
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    FORE:I know that those general principles which tend to enlighten and improve the human race are not absolutely useless that the enlightenment of nations is not without some effect on their rulers provided that the prerogative of the latter, their power, their security, their authority, their safety, is not touched thereby. I know well that this general enlightenment, so much boasted of, is a beautiful and glorious chimera, with which philosophers love to amuse themselves, but which would soon disappear if they would open history, and see therefrom to what causes improved institutions are due. The nations of antiquity have passed, and those of the present will pass, before philosophy and its influence have reformed a single government.This infamous crucible of truth is a still-existing monument of that primitive and savage legal system, which called trials by fire and boiling water, or the accidental decisions of combat, judgments of God, as if the rings of the eternal chain in the control of the First Cause must at every moment be disarranged and put out for the petty institutions of mankind. The only difference between torture and the trial by fire and water is, that the result of the former seems to depend on the will of the accused, and that of the other two on a fact which is purely physical and extrinsic to the sufferer; but the difference is only apparent, not real. The avowal of truth under tortures and agonies is as little free as was in those times the prevention without fraud of the usual effects of fire and boiling water. Every act of our will is ever proportioned to the force of the sensible impression which causes it, and the sensibility of every man is limited. Hence the impression produced by pain may be so intense as to occupy a mans entire sensibility and leave him no other liberty than the choice of the shortest way of escape, for the present moment, from his penalty. Under such circumstances the answer of the accused is as[151] inevitable as the impressions produced by fire and water; and the innocent man who is sensitive will declare himself guilty, when by so doing he hopes to bring his agonies to an end. All the difference between guilt and innocence is lost by virtue of the very means which they profess to employ for its discovery.
    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 Bacons 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.The more cruel punishments become, the more human minds harden, adjusting themselves, like fluids, to the level of objects around them; and the ever living force of the passions brings it about, that after a hundred years of cruel punishments, the wheel frightens men only just as much as at first did the punishment of prison.
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    FORE:But ought such a crime to be let go unpunished in the case of a man who has no effects to lose? No: there are kinds of smuggling of so much importance to the revenue (which is so essential and so difficult a part of a good system of laws), that such a crime deserves a considerable punishment, even imprisonment or servitude; but imprisonment and servitude conformable to the nature of the crime itself. For example, the prison of the tobacco-smuggler ought not to be the same as that of the assassin or the thief; and the labours of the former, limited to the work and service of the very treasury he wished to defraud, will be the punishments most conformable to the nature of his crime.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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    FORE:No inconvenience that may arise from a strict observance of the letter of penal laws is to be compared with the inconveniences of subjecting them to interpretation. The momentary inconvenience in the former case involves, indeed, correcting the words of the law which are the cause of the uncertainty, a task both easy and necessary; but the fatal licence of arguing, the source of so many arbitrary and venal disputes, is thereby prevented. When a fixed code of laws, which must be observed to the letter, leaves to the judge no further trouble than to inquire into the actions of citizens and to decide on their conformity to the written law; when the standard of just and[129] unjust, which should equally direct the actions of the ignorant citizen as of the philosophical one, is not a matter of controversy but of fact; then are people no longer subject to the petty tyrannies of many men, which are all the more cruel by reason of the smaller distance that separates the sufferer from the inflictor of suffering, and which are more pernicious than the tyrannies of a single man, inasmuch as the despotism of many is only curable by that of one, and a despots cruelty is proportioned, not to the power he possesses, but to the obstacles he encounters. Under a fixed code of laws citizens acquire that consciousness of personal security, which is just, because it is the object of social existence, and which is useful, because it enables them to calculate exactly the evil consequences of a misdeed. It is true they will also acquire a spirit of independence, but not such a spirit as will seek to shake the laws and prove rebellious against the chief magistrates, except against such of them as have dared to apply the sacred name of virtue to a spiritless submission to their own self-interested and capricious opinions. These principles will displease those who have assumed the right to transfer to their subordinates the strokes of tyranny they themselves have suffered from their superiors. I personally should have everything to fear, if the spirit of tyranny and the spirit of reading ever went together.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.
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THREE:One consequence of these last reflections is, that without writing no society will ever assume a fixed form of government, wherein the power shall belong to[131] the social whole, and not to its parts, and wherein the laws, only alterable by the general will, shall not suffer corruption in their passage through the crowd of private interests. Experience and reason have taught us, that the probability and certainty of human traditions diminish in proportion to their distance from their source. So that if there be no standing memorial of the social contract, how will laws ever resist the inevitable force of time and passion?

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TWO:If, moreover, the prevention of crime is the chief object of punishment, why wait till the crime is committed? Why not punish before, as a certain Turk in Barbary is said to have done, who, whenever he bought a fresh Christian slave, had him forthwith suspended by his heels and bastinadoed, that the severe sense of his punishment might prevent him from committing in future the faults that should[82] merit it?[43] Why should we ever let a man out of prison who has once entered one? Is he not then a hundred times more likely to violate the law than he was before; and is he ever more dangerous to society than when he has once suffered for the public example, and been released from the discipline that was intended to reform him? It is still true, as Goldsmith said long ago, that we send a man to prison for one crime and let him loose again ready to commit a thousand. And so it is, that of the 74,000 souls who make up our criminal classes, whilst about 34,000 of them fill our prisons and reformatories, there is still an army of 40,000 at large in our midst, whom we class as known thieves, receivers of stolen goods, and suspected persons.[44]

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THREE:The object of examining an accused man is the ascertainment of truth. But if this truth is difficult to discover from a mans air, demeanour, or countenance, even when he is quiet, much more difficult will it be to discover from a man upon whose face all the signs, whereby most men, sometimes in spite of themselves, express the truth, are distorted by pain. Every violent action confuses and causes to disappear those trifling differences between objects, by which one may sometimes distinguish the true from the false.
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FORE: From political morality, unless founded on the immutable sentiments of mankind, no lasting advantage can be hoped. Whatever law deviates from these sentiments will encounter a resistance which will ultimately prevail over it, just in the same way as a force, however slight, if constantly applied, will prevail over a violent motion applied to any physical body.CHAPTER XXXII. OF DEBTORS.

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TWO:But if penal laws thus express the wide variability of human morality, they also contribute to make actions moral or immoral according to the penalties by which they enforce or prevent them. For not[74] only does whatever is immoral tend to become penal, but anything can be made immoral by being first made penal; and hence indifferent actions often remain immoral long after they have ceased to be actually punishable. Thus the Jews made Sabbath-breaking equally immoral with homicide or adultery, by affixing to each of them the same capital penalty; and the former offence, though it no longer forms part of any criminal code, has still as much moral force against it as many an offence directly punishable by the law.
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THREE:The death penalty therefore is not a right; I have proved that it cannot be so; but it is a war of a nation against one of its members, because his annihilation is deemed necessary and expedient. But if I can show that his death is neither necessary nor expedient, I shall have won the cause of humanity.
FORE:There are some crimes which are at the same time of common occurrence and of difficult proof. In them the difficulty of proof is equivalent to a probability of innocence; and the harm of their impunity being so much the less to be considered as their frequency depends on principles other than the risk of punishment, the time for inquiry and the period of prescription ought both to be proportionately less. Yet[161] cases of adultery and pederasty, both of difficult proof, are precisely those in which, according to received principles, tyrannical presumptions of quasi-proofs and half-proofs are allowed to prevail (as if a man could be half-innocent or half-guilty, in other words, half-punishable or half-acquittable); in which torture exercises its cruel sway over the person of the accused, over the witnesses, and even over the whole family of an unfortunate wretch, according to the coldly wicked teaching of some doctors of law, who set themselves up as the rule and standard for judges to follow. Saturday, 23/08/2014

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FORE: From this necessity of the favour of other people arose private duels, which sprang up precisely in an anarchical state of the laws. It is said they were unknown to antiquity, perhaps because the ancients did not meet suspiciously armed in the temples, the theatres, or with friends; perhaps because the duel was an ordinary and common sight, presented to the people by gladiators, who were slaves or low people, and freemen disdained to be thought and called private gladiators. In vain has it been sought to extirpate the custom by edicts of death against any man accepting a challenge, for it is founded on that which some men fear more than death; since without the favour of his fellows the man of honour foresees himself exposed either to become a merely solitary being, a condition insufferable to a sociable man, or to become the butt of insults and disgrace which, from their constant operation, prevail over the fear of punishment. Why is it that the lower orders do not for the most part fight duels like the great? Not only because they are disarmed, but because the need of the favour of others is less general among the people[213] than among those who, in higher ranks, regard themselves with greater suspicion and jealousy. Saturday, 23/08/2014

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FORE:Thus, the two writers to whom Beccaria owed most were Montesquieu and Helvetius. The Lettres Persanes of the former, which satirised so many things then in custom, contained but little about penal laws; but the idea is there started for the first time that crimes depend but little on the mildness or severity of the punishments attached to them. The imagination, says the writer, bends of itself to the customs of the country; and eight days of prison or a slight fine have as much terror for a European brought up in a country of mild manners as the loss of an arm would have for an Asiatic.[4] The Esprit des Lois, by the same author, probably contributed more to the formation of Beccarias thoughts than the Lettres Persanes, for it is impossible to read the twelfth book of that work without being struck by the resemblance of ideas. The De LEsprit of Helvetius was condemned by the Sorbonne as a combination of all the various kinds of poison scattered through modern books. Yet it was one of the most influential books of the time. We find Hume recommending it to Adam Smith for its agreeable composition father than for its philosophy; and a writer who had much in common with Beccaria drew[8] from it the same inspiration that he did. That writer was Bentham, who tells us that when he was about twenty, and on a visit to his father and stepmother in the country, he would often walk behind them reading a book, and that his favourite author was Helvetius. Saturday, 23/08/2014

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FORE:Some crimes are injuries to a mans person, others to his property, and the former should certainly be punished by corporal punishments. Saturday, 23/08/2014

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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.
THREE:But perhaps the best illustrations of the tendency of actions to retain the infamy, attached to them by a past condition of fanatical punishments, are the cases of suicide and child-killing. Could a Greek of the classical period, or a cultivated historian like Plutarch reappear on earth, nothing would strike him more vividly than the modern conception or recent treatment of these crimes. According to Plutarch, Lycurgus, the great Spartan lawgiver, met his death by voluntary starvation, from the persuasion that even the deaths of lawgivers should be of use to mankind, and serve them with an example of virtue and greatness; and Seneca held that it was the part of a wise man not to live as long as he could but as long as he ought. With what astonishment, then, would not Plutarch or Seneca read of recent European punishments for suicideof Lady Hales[75] losing the estate she was jointly possessed of with her husband, the Judge, because he drowned himself; of the stake and the cross-roads; of the English law which still regards suicide as murder, and condemns one of two men who in a mutual attempt at self-destruction survives the other to the punishment of the ordinary murderer! Is it possible, he would ask, that an action which was once regarded as among the noblest a man could perform, has really come to be looked upon with any other feeling than one of pity or a sad respect?In the first place, our public works prisons, however excellent for their material results, are so many schools of crime, where for the one honest trade a man learns by compulsion he acquires a knowledge of three or four that are dishonest. I have become acquainted, says a released convict, with more of what is bad and evil, together with the schemes and dodges of professional thieves and swindlers, during the four years I served the Queen for nothing, than I should have done in fifty years outside the prison walls. The association rooms at Dartmoor are as bad as it is possible for anything to be they are really class-rooms in the college of vice, where all are alike students and professors. The present system in most instances merely completes the mans vicious and criminal education, instead of in the slightest degree reforming him.[56] It has been attempted in various ways to obviate this difficulty, by diminishing opportunities of companionship; but the real demoralisation of prison life is probably due less to the actual contact of bad men with one another than to the deadened sense of criminality which they derive from the feeling of numbers, just as from the same cause the danger of drowning is forgotten on the ice. Prisoners in gangs lose all shame of crime, just as men in armies forget their native horror of murder.
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Lord Ellenborough, on the last day but one of May 1810, appealed to their lordships to pause, before they passed the Shoplifting Bill and gave their assent to the repeal of a law which had so long been held necessary for the security of the public. No one, he insisted, was more disposed than himself to the exercise of clemency, but there was not the slightest ground for the insinuations of cruelty that had been cast on the administration of the law. If shoplifting did not require the penalty of death, the same rule would have to apply to horse- and sheep-stealing; and, in spite of all that was said in favour of this speculative humanity, they must all agree, that prevention of crime should be the chief object of the law, and that terror alone could prevent the crime in question. Those who were thus speculating in modern legislation urged that punishment should[63] be certain and proportionate; but he could satisfy the House that any attempt to apply a punishment in exact conformity to the offence would be perfectly ludicrous. He had consulted with the other judges, and they were unanimously of opinion that it would not be expedient to remit this part of the severity of the criminal law.[38] He therefore entreated them to pause.
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