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Another way to prevent crimes is to reward virtue. On this head I notice a general silence in the laws of all nations to this day. If prizes offered by academies to the discoverers of useful truths have caused the multiplication of knowledge and of good books, why should not virtuous actions also be multiplied, by prizes distributed from the munificence of the sovereign? The money of honour ever remains unexhausted and fruitful in the hands of the legislator who wisely distributes it.

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CHAPTER XXXVIII. FALSE IDEAS OF UTILITY.
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THREE:Are torture and torments just, and do they attain the end which the law aims at?This, then, is the way to avoid confounding the relations and invariable nature of things, which, being unlimited by time and in ceaseless operation, confounds and overturns all narrow regulations that depart from it. It is not only the arts of taste and pleasure which have for their universal principle the faithful imitation of nature; but the art of politics itself, at least that which is true and permanent, is subject to this general maxim, since it consists in nothing else than the art of directing in the best way and to the same purposes the immutable sentiments of mankind.
FORE:This fulmination reached Milan on January 15, 1765, and on the 21st the Risposta, or reply, was[17] ready for publication.[7] This defence was the work of his friends, the Verris, and was published, like the original, anonymously; as it was written in the first person throughout, it was generally at the time and even till lately ascribed to the same author as the original, but the fact is now established beyond doubt that the real authors were Pietro and his brother. The writers wisely refrained from the use of retaliatory language, confining themselves in their defence solely to charges of irreligion and sedition, responding to six which accused Beccaria of the latter, and to twenty-three which declared him guilty of the former.Paley agreed with Beccaria that the certainty of punishment was of more consequence than its severity. For this reason he recommended undeviating impartiality in carrying the laws into execution; he blamed the weak timidity of juries, leading them to be over-scrupulous about the certainty of their evidence, and protested against the maxim that it was better for ten guilty men to escape than for one innocent man to perish. A man who fell by a mistaken sentence might, he argued, be considered as falling for his country, because he was the victim of a system of laws which maintained the safety of the community.

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FORE: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.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.

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TWO: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.
THREE:Something, however, occurred more fatal to the reform of our penal laws than even the philosophy of Paley, and that was the French Revolution. Before 1790 there had been 115 capital offences in France; so that to alter the criminal law in England was to follow a precedent of unpleasant auspices. Reform not unnaturally savoured of revolution, and especially a reform of the penal laws. In 1808 Romilly said he would advise anyone, who desired to realise the mischievous effects of the French Revolution in England to attempt some legislative reform on humane and liberal principles. With bitterness he tells the story of a young nobleman, who, addressing him insolently at the bar of the House of Commons, informed him that he for his part was for hanging all criminals. Romilly observed that he supposed he meant punishments should be certain and the laws executed, whatever they were. No, no, was the reply, it isnt that. There is no good done by mercy. They only get worse: I would hang them all up at once. And this represented the prevalent[59] opinion. Windham, in a speech against the Shoplifting Bill, inquired, Had not the French Revolution begun with the abolition of capital punishment in every case? Was such a system as this was to be set up without consideration against that of Dr. Paley![36]The greatest effect that any punishment has upon the human mind is not to be measured by its intensity but by its duration, for our sensibility is more easily and permanently affected by very slight but repeated impressions than by a strong but brief shock. Habit holds universal sway over every sentient being, and as we speak and walk and satisfy our needs by its aid, so moral ideas only stamp themselves on our mind by long and repeated impressions. It is not the terrible yet brief sight of a criminals death, but the long and painful example of a man deprived of[172] his liberty, who, having become as it were a beast of burthen, repays with his toil the society he has offended, which is the strongest restraint from crimes. Far more potent than the fear of death, which men ever have before their eyes in the remote distance, is the thought, so efficacious from its constant recurrence: I myself shall be reduced to as long and miserable a condition if I commit similar misdeeds.
FORE: Whatever improvement our penal laws have undergone in the last hundred years is due primarily to Beccaria, and to an extent that has not always been recognised. Lord Mansfield is said never to have mentioned his name without a sign of respect. Romilly referred to him in the very first speech he delivered in the House of Commons on the subject of law reform. And there is no English writer of that day who, in treating of the criminal law, does not refer to Beccaria.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.

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FORE:CHAPTER V. OBSCURITY OF THE LAWS.

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FORE:Judgment must be nothing but the precise text of the law, and the office of the judge is only to pronounce whether the action is contrary or conformable to it.Six days after his arrival Beccaria writes in a similar strain: that he is in the midst of adorations and the most flattering praises, considered as the companion and colleague of the greatest men in Europe, regarded with admiration and curiosity, his company competed for; in the capital of pleasures, close to three theatres, one of them the Comdie Fran?aise, the most interesting spectacle in the world; and that yet he is unhappy and discontented, and unable to find distraction in anything. He tells his wife that he is in excellent health, but that she must say just the contrary, in order that there may be a good pretext for his return; and the better to ensure this, he sends his wife another letter which she may show to his parents, and in which, at the end of much general news about Paris, he alludes incidentally to the bad effect on his health of drinking the waters of the Seine. He regrets having to resort to this fiction; but considers that he is justified by the circumstances.

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FORE:They who have thought that the criminals intention was the true measure of crimes were in the wrong. For the intention depends on the actual impression of things upon a man, and on his precedent mental disposition, things which vary in all men and in each man, according to the very rapid succession of his ideas, his passions, and his circumstances. It would, therefore, be necessary to form not only a particular code for each citizen, but a fresh law for every crime. Sometimes with the best intentions men do the greatest evil to society; and sometimes with the very worst they do it the greatest good.

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FORE: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 trutha 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.

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THREE:If we consult the human heart we shall therein discover the fundamental principles of the real right of the sovereign to punish crimes.
THREE:No law ought to be promulgated that has not force to back it, or that the nature of things deprives of validity; and as minds are ruled by opinion, which[224] itself follows the slow and indirect impressions of legislation, whilst it resists those that are direct and violent, the most salutary laws become infected with the contempt felt for useless laws, and are regarded rather as obstacles to be surmounted than as the deposit of the public welfare.

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THREE: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.

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TWO: A cruelty consecrated among most nations by custom is the torture of the accused during his trial, on the pretext of compelling him to confess his crime, of clearing up contradictions in his statements, of discovering his accomplices, of purging him in some metaphysical and incomprehensible way from infamy, or finally of finding out other crimes of which he may possibly be guilty, but of which he is not accused.

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THREE: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.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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TWO:PREFACE.Nor was it only in Europe that Beccarias influence thus prevailed, for as soon as the American Colonies had shaken off their English connection they began to reform their penal laws. When the Revolution began there were in Pennsylvania nearly twenty crimes punishable by death, and within eighteen years of its close the penal code was thoroughly transformed, it being ordained in 1794 that no crime should any longer be capital but murder in the first degree. It is true that this was but a return to the principles adopted by Penn on the settlement of the colony, but Penns penal code was annulled by Queen Anne, and the English Government insisted on a strict adherence to the charter from Charles II., which enjoined the retention of the Statute and the Common Law of England. When, therefore, the new Constitution was formed in 1776, the arguments of Beccaria gave fresh life to the memories of Penn.[25]

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TWO:CHAPTER V. OBSCURITY OF THE LAWS.

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TWO:[66] There are some crimes which, are at the same time frequent in society and yet difficult to prove, as adultery, pederasty, infanticide.

ONE:In revenges or punishments, says Hobbes, men ought not to look at the greatness of the evil past, but the greatness of the good to follow, whereby we are forbidden to inflict punishment with any other design than for the correction of the offender and the admonition of others. And over and over again the same thing has been said, till it has come to be a commonplace in the philosophy of law, that the object of punishment is to reform and deter. As was once said by a great legal authority, We do not hang you because you stole a horse, but that horses may not be stolen.[42] Punishment by this theory is a means to an end, not an end in itself.Finally, a man who, when examined, persists in an obstinate refusal to answer, deserves a punishment[146] fixed by the laws, and one of the heaviest they can inflict, that men may not in this way escape the necessary example they owe to the public. But this punishment is not necessary when it is beyond all doubt that such a person has committed such a crime, questions being useless, in the same way that confession is, when other proofs sufficiently demonstrate guilt And this last case is the most usual, for experience proves that in the majority of trials the accused are wont to plead Not guilty.

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ONE:But there is a still further uncertainty of punishment, for it is as well known in the criminal world as elsewhere that the sentence pronounced in court is not the real sentence, and that neither penal servitude for[96] five years nor penal servitude for life mean necessarily anything of the sort. The humanity of modern legislation insists on a remission of punishment, dependent on a convicts life in the public works prisons, in order that the element of hope may brighten his lot and perchance reform his character. This remission was at first dependent simply on his conduct, which was perhaps too generously called good where it was hard for it to be bad; now it depends on his industry and amount of work done. Yet the element of hope might be otherwise assured than by lessening the certainty of punishment, say, by associating industry or good conduct with such little privileges of diet, letter-writing, or receiving of visits, as still shed some rays of pleasure over the monotony of felon-life. It should not be forgotten, that the Commission of 1863, which so strongly advocated the remissibility of parts of penal sentences, did so in despite of one of its principal members, against no less an authority than the Lord Chief Justice, then Sir Alexander Cockburn.[55] The very fact of the remissibility of a sentence is an admission of its excessive severity; for to say that a sentence is never carried out is to say that it need never have been inflicted. The first class of crimesthat is, the worst, because they are the most injurious to societyare those known as crimes of high treason. Only tyranny and ignorance, which confound words and ideas of the clearest meaning, can apply this name, and consequently the heaviest punishment, to different kinds of crimes, thus rendering men, as in a thousand other cases, the victims of a word. Every crime, be it ever so private, injures society; but every crime does not aim at its immediate destruction. Moral, like physical actions, have their limited sphere of activity, and are differently circumscribed, like all the movements of nature, by time and space; and therefore only a sophistical interpretation, which is generally the philosophy of slavery, can confound what eternal truth has distinguished by immutable differences.

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THREE:It was at one time said that the work really was Pietro Verris and not Beccarias, for it was published anonymously, and away from Milan. The domestic circumstances of Pietro lent some countenance to this story, as did also the fact that he charged himself with the trouble of making a correct copy of the manuscript, so that a copy of the treatise does actually exist in Pietros handwriting. The story, however, has long since been disproved; yet to show the great interest which Pietro took in the work, and the[11] ready assistance he gave to his friend, a letter to him from Beccaria, with respect to the second edition, deserves mention, in which Beccaria begs him not only to revise the spelling correctly, but generally to erase, add, and correct, as he pleases. It would appear that he was already tired of literary success, for he tells his friend, that but for the motive of preserving his esteem and of affording fresh aliment to their friendship, he should from indolence prefer obscurity to glory itself.
THREE:Penal laws are the expression of the moral sentiments of mankind, and either are as variable as the other. In Holland it was once a capital offence to kill a stork, and in England to cut down a mans cherry-tree. For a Roman lady to drink wine was as heinous a sin as adultery, for either of which she incurred the extreme sentence of the law. In Athens idleness was for a long time punishable; though to a Spartan an Athenian fined for idleness seemed to be punished for keeping up his dignity. In Mexico drunkenness was a graver crime than slander; for whilst the slanderer lost his ears or lips, the drunken man or woman was clubbed or stoned to death.

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My country is quite immersed in prejudices, left in it by its ancient masters. The Milanese have no pardon for those who would have them live in the eighteenth century. In a capital which counts 120,000 inhabitants, you will scarcely find twenty who love to instruct themselves, and who sacrifice to truth and virtue. My friends and I, persuaded that periodical works are among the best means for tempting to some sort of reading minds incapable of more serious application, are publishing in papers, after the manner of the English Spectator, a work which in England has contributed so much to increase mental culture and the progress of good sense. The French philosophers have a colony in[7] this America, and we are their disciples because we are the disciples of reason, &c.CHAPTER XXIX. DUELS.
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