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CRIMES AND PUNISHMENTS

BY THE SAME AUTHOR.

Crown 8vo. cloth extra, 7_s._ 6_d._

PRIMITIVE MANNERS AND CUSTOMS.

By JAMES A. FARRER.

‘A book which is really both instructive and amusing, and which will open
a new field of thought to many readers.’—ATHENÆUM.

‘An admirable example of the application of the scientific method and the
working of the truly scientific spirit.’—SATURDAY REVIEW.

CHATTO & WINDUS, Piccadilly, W.

                                 CRIMES
                                   AND
                               PUNISHMENTS

                     INCLUDING A NEW TRANSLATION OF
                 _BECCARIA’S ‘DEI DELITTI & DELLE PENE’_

                                   BY
                           JAMES ANSON FARRER

                                 London
                       CHATTO & WINDUS, PICCADILLY
                                  1880

                          _All rights reserved_

_PREFACE._

The reason for translating afresh Beccaria’s ‘Dei Delitti e delle Pene’
(‘Crimes and Punishments’) is, that it is a classical work of its kind,
and that the interest which belongs to it is still far from being merely
historical.

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.

The object of the preliminary chapters is to place the historical
importance of the original in its just light, and to increase the
interest of the subjects it discusses.

The Translator has abstained from all criticism or comment of the
original, less from complete agreement 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.

To combine the maximum of perspicuity with the maximum of fidelity to the
original has been the cardinal principle observed in the translation.
But it would, of course, have been no less impossible than contrary
to the spirit of the original to have attempted to render perfectly
comprehensible what the author purposely wrapped in obscurity. A
translation can but follow the lights and shades of the surface it
reflects, rendering clear what is clear in the original, and opaque what
is opaque.

_CONTENTS._

                                                                      PAGE

                               CHAPTER I.

                     BECCARIA’S LIFE AND CHARACTER.

    State of Lombardy under Count Firmian—The state of criminal
    law—Torture still in use—The abolition of torture before
    Beccaria—Beccaria not a lawyer by profession—Autobiographical
    letter of Beccaria to the Abbé Morellet—Influence on
    Beccaria of Montesquieu and Helvetius—His philosophy of life
    and truth—His friends, the Verri—Connection with Pietro
    Verri—The Caffé periodical—Reception of the ‘Dei Delitti’ in
    Paris—Translation of it by Morellet—Commentary by Voltaire—The
    Swiss medal—Beccaria’s fear of ecclesiastical persecution a
    motive for occasional obscurity—Feeling in Venice against
    the author—Facchinei’s criticism—Protection of Count
    Firmian—Adverse criticism by contemporary lawyers—Ramsay’s
    letter to Diderot, illustrative of the despair of
    reform—Beccaria’s journey to Paris—His speedy return—Enmity
    and jealousy of Pietro Verri—Beccaria’s invitation to St.
    Petersburg—His lectures on political economy, and later life         1

                               CHAPTER II.

            THE GENERAL INFLUENCE OF BECCARIA ON LEGISLATION.

    Present inconceivability of torture due to Beccaria—How far
    he was the first to write against it—Torture first abolished
    in England—Beccaria’s influence in Russia—Quotations
    from his treatise in Catharine’s instruction for the new
    code—Beccaria’s influence in France; Tuscany; Austria;
    Pennsylvania—Beccaria the first advocate of the abolition
    of capital punishment—Relative severity of death and other
    penalties—Slight relation of crime to punishment—Reasons
    why capital punishment is always more uncertain than other
    penalties—Cases accounting for its uncertainty—The efficiency
    of a punishment its real test—Futility of discussing the
    general right of punishment—Instances of the abolition of
    capital punishment in ancient and modern times—The argument for
    its abolition the same as that for the abolition of torture         29

                              CHAPTER III.

                  THE INFLUENCE OF BECCARIA IN ENGLAND.

    General debt of English law to Beccaria—English utilitarianism
    due to Beccaria—His influence first traceable in
    Blackstone—Fallacy of old criminal law in making the amount
    of temptation the measure of punishment—Eden the first to
    expose it in his ‘Principles of Penal Law’—Attitude of
    men of letters to the criminal law, as of Goldsmith, Lord
    Kames, and Fielding—First attempt at law reform by Sir W.
    Meredith—Constant opposition of the House of Lords—Effect on
    reform of Madan’s ‘Executive Justice’ and Paley’s chapter on
    Crimes and Punishments—Relation of Paley to Lord Chief Justice
    Ellenborough—Paley’s defence of English law—His approval
    of the suggestion of throwing murderers into a den of wild
    beasts—Howard’s ideas of reform and contribution to it—Bad
    effect of the French Revolution in England—Romilly’s original
    idea of reform—His Privately Stealing Bill—His criticism of
    Paley—His Shoplifting Bill rejected by the Lords—The pillory
    defended by Lord Ellenborough—Capital punishment for forgery by
    Lord Tenterden—Rapid changes after the Reform Bill—The triumph
    of Beccaria’s principles                                            46

                               CHAPTER IV.

                        THE PROBLEMS OF PENOLOGY.

    The spirit of Beccaria’s work—The slow progress of penology
    as a science—Its difficulties—Confusion of guilty and
    innocent—Relation of intention to crime—Objects and animals
    once part of the criminal world—Penal laws the expression
    of moral sentiments, and also the cause of them—Tendency
    of actions to remain immoral when they have ceased to be
    penal—Illustration from suicide and infanticide—The Equality of
    punishment, its Analogy and Proportion to crime, as principles
    of penal law—The object of punishment—The difficulties of
    the deterrent-and-reformative theory—The object of law to
    regulate natural vindictiveness—Traceable historically to this
    purpose—The measure of punishment on this theory—Absence of any
    such measure at present—Possibility of a fixed scale of crime
    and punishment illustrated by the Chinese code—The question of
    aggravated penalties for re-convictions—The custom contrary
    to the spirit of the laws: its evil results—Limitations to
    the universality of the custom—Its error of principle proved
    by number of re-convictions—The preventiveness of punishment
    diminished by its great uncertainty—Frequent changes of
    English penal system—Failure of present system to reform
    or deter—Punishment itself a cause of crime—Its possible
    relaxation—Punishments most fitted for injuries to the person,
    or for offences like cruelty to animals—Indirect preventives of
    crime—A Prisoners’ Fund—Cumulative sentences—Conclusion             69

          BECCARIA’S ‘CRIMES AND PUNISHMENTS,’ TRANSLATED.

       CHAP.

             TO THE READER                                             111

          I. INTRODUCTION                                              117

         II. THE ORIGIN OF PUNISHMENTS—RIGHT OF PUNISHMENT             121

        III. CONSEQUENCES                                              124

         IV. INTERPRETATION OF THE LAWS                                125

          V. OBSCURITY OF THE LAWS                                     130

         VI. IMPRISONMENT                                              132

        VII. PROOFS AND FORMS OF JUDGMENTS                             134

       VIII. WITNESSES                                                 138

         IX. SECRET ACCUSATIONS                                        139

          X. LEADING QUESTIONS                                         144

         XI. OATHS                                                     146

        XII. TORTURE                                                   148

       XIII. PROSECUTIONS AND PRESCRIPTIONS                            157

        XIV. CRIMINAL ATTEMPTS, ACCOMPLICES, IMPUNITY                  162

         XV. THE MILDNESS OF PUNISHMENTS                               165

        XVI. CAPITAL PUNISHMENT                                        169

       XVII. BANISHMENT AND CONFISCATIONS                              180

      XVIII. INFAMY                                                    183

        XIX. PROMPTNESS OF PUNISHMENTS                                 185

         XX. CERTAINTY OF PUNISHMENTS—PARDONS                          189

        XXI. ASYLUMS OF REFUGE                                         192

       XXII. PROSCRIPTION                                              194

      XXIII. PROPORTION BETWEEN CRIMES AND PUNISHMENTS                 196

       XXIV. MEASURE OF PUNISHMENTS                                    199

        XXV. DIVISION OF PUNISHMENTS                                   202

       XXVI. CRIMES OF HIGH TREASON                                    204

      XXVII. CRIMES AGAINST PERSONAL SECURITY—DEEDS OF VIOLENCE        205

     XXVIII. INJURIES                                                  208

       XXIX. DUELS                                                     212

        XXX. THEFTS                                                    213

       XXXI. SMUGGLING                                                 214

      XXXII. DEBTORS                                                   216

     XXXIII. PUBLIC PEACE                                              220

      XXXIV. POLITICAL IDLENESS                                        221

       XXXV. SUICIDE                                                   222

      XXXVI. CRIMES OF DIFFICULT PROOF                                 227

     XXXVII. A PARTICULAR KIND OF CRIME                                231

    XXXVIII. SOURCES OF ERRORS AND INJUSTICE IN LEGISLATION; AND
                 FIRSTLY OF FALSE IDEAS OF UTILITY                     233

      XXXIX. FAMILY SPIRIT                                             235

         XL. THE TREASURY                                              240

        XLI. THE PREVENTION OF CRIMES—KNOWLEDGE—MAGISTRATES—REWARDS    242

       XLII. CONCLUSION                                                251

    ‘All men, whether singly or collectively, naturally do wrong,
    nor is there any law which will prevent it. For every kind
    of punishment has been successively tried by mankind, if
    haply they might suffer less injury from malefactors. And it
    is probable that in their origin punishments for even the
    gravest crimes are comparatively mild, but that, as they
    are disregarded, most of them come in course of time to be
    punishments of death; yet this in its turn is also disregarded.
    Either, therefore, some greater terror than death must be
    invented, or death at least serves not as a deterrent, men
    being led to risk it, sometimes by poverty, which emboldens
    them through necessity, sometimes by power, which makes
    them overreaching and insolent; or sometimes by some other
    circumstance which subordinates all a man’s passions to some
    one passion that is insuperable and dominant.… And it is
    simply impossible, and a very foolish idea, to think that,
    when human nature is firmly bent on doing anything, it can
    be deterred from it either by force of law or by any other
    terror.’—THUCYDIDES.

    ‘How many condemnations have I seen more criminal than the
    crimes themselves!’—MONTAIGNE.

CRIMES AND PUNISHMENTS.

CHAPTER I.

BECCARIA’S LIFE AND CHARACTER.

The ‘Dei Delitti e delle Pene’ was published for the first time in
1764. It quickly ran through several editions, and was first translated
into French in 1766 by the Abbé Morellet, since which time it has been
translated into most of the languages of Europe, not excluding Greek and
Russian.

The author of the book was a native of Milan, then part of the Austrian
dominions, and under the governorship of Count Firmian, a worthy
representative of the liberal despotism of Maria Theresa and her chief
minister, Kaunitz. Under Firmian’s administration a period of beneficial
reforms began for Lombardy. Agriculture was encouraged, museums and
libraries extended, great works of public utility carried on. Even
the Church was shorn of her privileges, and before Firmian had been
ten years in Lombardy all traces of ecclesiastical immunity had been
destroyed; the jurisdiction of the Church, and her power to hold lands in
mortmain were restricted, the right of asylum was abolished, and, above
all, the Holy Office of the Inquisition. Let these few facts suffice to
indicate the spirit of the immediate political surroundings in the midst
of which Beccaria’s work appeared.

But, in spite of the liberalism of the Count, the penal laws and
customs of Lombardy remained the same; and the cruel legal procedure
by torture existed still, untouched by the salutary reforms effected
in other departments of the Government. There was the preparatory
torture, to extort confession from criminals not yet condemned; there
was torture for the discovery of a criminal’s accomplices; and there was
the extraordinary or greater torture, which preceded the execution of
a sentence of death. It is true that torture could only be applied to
crimes of a capital nature, but there was scarcely an act in the possible
category of crimes that was not then punishable with death. Proofs of
guilt were sought almost entirely from torture and secret accusations,
whilst penalties depended less on the text of any known law than on the
discretion—that is, on the caprice—of the magistrate.

It was this system that Beccaria’s little work destroyed, and had that
been its only result, it would still deserve to live in men’s memories
for its historical interest alone. For upon the legislation of that time,
and especially upon that of Italy, this pamphlet on criminal law broke
like a ray of sunlight on a dungeon floor, making even blacker that
which was black before by the very brilliancy which it shed upon it. To
Beccaria primarily, though not of course solely, belongs the glory of
having expelled the use of torture from every legal tribunal throughout
Christendom.

Frederick the Great had already abolished it in Prussia;[1] it had been
discontinued in Sweden; it was not recognised in the military codes of
Europe, and Beccaria said it was not in use in England. This was true
generally, although the _peine forte et dure_, by which a prisoner who
would not plead was subjected to be squeezed nearly to death by an iron
weight, was not abolished till the year 1771.[2]

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
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.

The following letter by Beccaria to the Abbé 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:—

    Your letter has raised in me sentiments of the deepest esteem,
    of the greatest gratitude, and the most tender friendship; nor
    can I confess to you how honoured I feel at seeing my work
    translated into the language of a nation which is the mistress
    and illuminator of Europe. I owe everything to French books.
    They first raised in my mind feelings of humanity which had
    been suffocated by eight years of a fanatical education. I
    cannot express to you the pleasure with which I have read your
    translation; you have embellished the original, and your
    arrangement seems more natural than, and preferable to, my
    own. You had no need to fear offending the author’s vanity:
    in the first place, because a book that treats of the cause
    of humanity belongs, when once published, to the world and
    all nations equally; and as to myself in particular, I should
    have made little progress in the philosophy of the heart,
    which I place above that of the intellect, had I not acquired
    the courage to see and love the truth. I hope that the fifth
    edition, which will appear shortly, will be soon exhausted,
    and I assure you that in the sixth I will follow entirely, or
    nearly so, the arrangement of your translation, which places
    the truth in a better light than I have sought to place it in.

    As to the obscurity you find in the work, I heard, as I wrote,
    the clash of chains that superstition still shakes, and the
    cries of fanaticism that drown the voice of truth; and the
    perception of this frightful spectacle induced me sometimes to
    veil the truth in clouds. I wished to defend truth, without
    making myself her martyr. This idea of the necessity of
    obscurity has made me obscure sometimes without necessity. Add
    to this my inexperience and my want of practice in writing,
    pardonable in an author of twenty-eight,[3] who only five years
    ago first set foot in the career of letters.

    D’Alembert, 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 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.

    My occupation is to cultivate philosophy in peace, and so to
    satisfy my three strongest passions, the love, that is, of
    literary fame, the love of liberty, and pity for the ills of
    mankind, slaves of so many errors. My conversion to philosophy
    only dates back five years, and I owe it to my perusal of
    the ‘Lettres Persanes.’ The second work that completed my
    mental revolution was that of Helvetius. The latter forced me
    irresistibly into the way of truth, and aroused my attention
    for the first time to the blindness and miseries of humanity.

    … I lead a tranquil and solitary life, if a select company of
    friends in which the heart and mind are in continual movement
    can be called solitude. This is my consolation, and prevents me
    feeling in my own country as if I were in exile.

    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 this America, and we are their disciples
    because we are the disciples of reason, &c.

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 Beccaria’s
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 L’Esprit’ 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 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.

The influence of the predominant French philosophy appears throughout
Beccaria’s treatise. Human justice is based on the idea of public
utility, and the object of legislation is to conduct men to the greatest
possible happiness or to the least possible misery. The vein of
dissatisfaction with life and of disbelief in human virtue is a marked
feature of Beccaria’s philosophy. To him life is a desert, in which a
few physical pleasures lie scattered here and there;[5] his own country
is only a place of exile, save for the presence of a few friends engaged
like himself in a war with ignorance. Human ideas of morality and virtue
have only been produced in the course of many centuries and after much
bloodshed, but slow and difficult as their growth has been, they are ever
ready to disappear at the slightest breeze that blows against them.

Beccaria entertains a similar despair of truth. The history of mankind
represents a vast sea of errors, in which at rare intervals a few truths
only float uppermost; and the durability of great truths is as that of
a flash of lightning when compared with the long and dark night which
envelops humanity. For this reason he is ready to be the servant of
truth, not her martyr; and he recommends in the search for truth, as in
the other affairs of life, a little of that ‘philosophical indolence’
which cares not too much about results, and which a writer like Montaigne
is best fitted to inspire.[6]

The few select friends who made life at Milan just supportable were
Pietro and Alessandro Verri, Frisi, and some others. Pietro Verri was ten
years older than Beccaria, and it was at his instance that the latter
wrote his first treatise on a subject which then demanded some attention,
namely, ‘The Disorders and Remedies of the Coinage.’ This work was
published two years before the ‘Crimes and Punishments,’ but though it
provoked much discussion at the time, it has long since ceased to have
any interest.

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 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.

Why then did Pietro Verri not write it himself? The answer would seem to
be, out of deference for the position and opinions of his father. It was
some time later that Gabriel defended the use of torture in the Milanese
Senate, and Pietro wrote a work on torture which he did not publish
in his father’s lifetime. It was probably due also to the father’s
position that Alessandro held his office of Protector of the Prisoners,
so that there were obvious reasons which prevented either brother from
undertaking the work in question.

It was at one time said that the work really was Pietro Verri’s and not
Beccaria’s, 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 Pietro’s handwriting. The story, however, has long
since been disproved; yet to show the great interest which Pietro took in
the work, and the 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.

There is no doubt that Beccaria always had a strong preference for the
contemplative as opposed to the practical and active life, and that but
for his friend Pietro Verri he would probably never have distinguished
himself at all. He would have said with Plato that a wise man should
regard life as a storm, and hide himself behind a wall till it be
overpast. He almost does say this in his essay on the ‘Pleasures of the
Imagination,’ published soon after the ‘Crimes and Punishments.’ He
advises his reader to stand aside and look on at the rest of mankind as
they run about in their blind confusion; to make his relations with them
as few as possible; and if he will do them any good, to do it at that
distance which will prevent them from upsetting him or drawing him away
in their own vortex. Let him in happy contemplation enjoy in silence the
few moments that separate his birth from his disappearance. Let him leave
men to fight, to hope, and to die; and with a smile both at himself and
at them, let him repose softly on that enlightened indifference with
regard to human things which will not deprive him of the pleasure of
being just and beneficent, but which will spare him from those useless
troubles and changes from evil to good that vex the greater part of
mankind.

This essay on the ‘Imagination’ was published soon after the ‘Crimes and
Punishments’ in the periodical to which Beccaria alludes in his letter
to Morellet. ‘The Caffé’ was the name of the periodical which, from June
1764, he and his friends published every tenth day for a period of two
years. The model of the paper was the English ‘Spectator,’ and its object
to propagate useful knowledge pleasantly among the Milanese, whilst its
name rested on the supposition that the friends who composed it executed
their labours during meetings in a coffee-house. The most interesting
contributions to it by Beccaria are his ‘Fragment on Style,’ his article
on ‘Periodical Newspapers,’ and his essay on the ‘Pleasures of the
Imagination.’

The publication of the ‘Delitti e delle Pene’ interrupted its author’s
dreams of philosophical calm, by fulfilling his hopes of literary fame.
The French encyclopædists were the first to recognise its merits, and
D’Alembert, the mathematician, at once predicted for the writer the
reward of an immortal reputation. Morellet’s 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.

A still greater honour was the commentary written by Voltaire. The fact
that only within a few miles of his own residence a girl of eighteen had
been hung for the exposure of a bastard child led Voltaire to welcome
Beccaria’s work as a sign that a period of softer manners and more humane
laws was about to dawn upon the world’s history. Should not a people,
he argues, who like the French pique themselves on their politeness
also pride themselves on their humanity? Should they retain the use of
torture, merely because it was an ancient custom, when the experience of
England and other countries showed that crimes were not more numerous
in countries where it was not in use, and when reason indicated the
absurdity of inflicting on a man, before his condemnation, a punishment
more horrible than would await his proved guilt? What could be more
cruel, too, than the maxim of law that a man who forfeited his life
forfeited his estates? What more inhuman than thus to punish a whole
family for the crime of an individual, perhaps condemning a wife and
children to beg their bread because the head of the family had harboured
a Protestant preacher or listened to his sermon in a cavern or a desert?
Amid the contrariety of laws that governed France, the object of the
criminal procedure to bring an accused man to destruction might be said
to be the only law which was uniform throughout the country.

So signal a success in France was a sufficient guarantee of success
elsewhere. A knowledge of the book must have speedily crossed the
Channel, for Blackstone quoted it the very year after its publication.
It was first translated into English in 1768, together with Voltaire’s
commentary; but just as Morellet’s translation professed to have been
published at Philadelphia, so the English translator kept his name
a secret. The Economical Society of Berne, which was accustomed to
bestow a gold medal on the writer of the best treatise on any given
subject, violated its own rules in favour of the anonymous writer of the
‘Delitti,’ inviting him to disclose his name, and to accept the gold
medal ‘as a sign of esteem due to a citizen who had dared to raise his
voice in favour of humanity against the most deeply engrained prejudices.’

But there was another side to the brightness of this success. In
literature as in war no position of honour can be won or held without
danger, and of this Beccaria seems to have been conscious when he
pleaded against the charge of obscurity, that in writing he had had
before his eyes the fear of ecclesiastical persecution. His love for
truth, he confessed, stopped short at the risk of martyrdom. He had,
indeed, three very clear warnings to justify his fears. Muratori, the
historian, had suffered much from accusations of heresy and atheism, and
had owed his immunity from worse consequences chiefly to the liberal
protection of Pope Benedict XIV. The Marquis Scipio Maffei had also
incurred similar charges for his historical handling of the subject of
Free-will. But there was even a stronger warning than these, and one not
likely to be lost on a man with youth and life before him; that was the
fate of the unfortunate Giannone, who, only sixteen years before Beccaria
wrote, had ended with his life in the citadel of Turin an imprisonment
that had lasted twenty years, for certain observations on the Church of
Rome which he had been rash enough to insert in his ‘History of Naples.’

Of all the attacks which the publication of the ‘Dei Delitti’ provoked,
the bitterest came naturally from a theological pen. At the very time
that Beccaria’s work appeared, the Republic of Venice was occupied
in a violent contest touching the Inquisitorial Council of Ten; and
imagining that Beccaria’s remarks about secret accusations had been
directed against the procedure of their famous tribunal, whilst they
attributed the work to a Venetian nobleman called Quirini, they forbade
its circulation under pain of death. It was on their behalf and with this
belief that the Dominican Padre, Facchinei, took up his pen and wrote a
book, entitled, ‘Notes and Observations on the “Dei Delitti,”’ in which
he argued, among other things, not only that secret accusations were the
best, cheapest, and most effective method of carrying out justice, but
that torture was a kind of mercy to a criminal, purging him in his death
from the sin of falsehood.

In these ‘Notes and Observations’ Beccaria and his work were assailed
with that vigour and lucidity for which the Dominican school of writing
has always been so conspicuous. The author was described as ‘a man
of narrow mind,’ ‘a madman,’ ‘a stupid impostor,’ ‘full of poisonous
bitterness and calumnious mordacity.’ He was accused of writing ‘with
sacrilegious imposture against the Inquisition,’ of believing that
‘religion was incompatible with the good government of a state;’ nay, he
was condemned ‘by all the reasonable world as the enemy of Christianity,
a bad philosopher, and a bad man.’ His book was stigmatised as ‘sprung
from the deepest abyss of darkness, horrible, monstrous, full of poison,’
containing ‘miserable arguments,’ ‘insolent blasphemies,’ and so forth.

This fulmination reached Milan on January 15, 1765, and on the 21st the
Risposta, or reply, was 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.

But it is probable that Beccaria owed his escape from persecution less
to his apology than to the liberal protection of Count Firmian, who in
his report of the affair to the Court of Vienna spoke of the Risposta as
‘full of moderation and honourable to the character of its author.’ That
the Count fully agreed with Beccaria’s opinions on torture is proved by a
letter he wrote, in which he declares himself to have been much pleased
with what Beccaria had said on the subject. His vanity, he said, had been
flattered by it, for his own feelings about torture had always been the
same. The book seemed to him written with much love of humanity and much
imagination. Beccaria always acknowledged his gratitude to the Count for
his action in this matter. To Morellet he wrote, that he owed the Count
his tranquillity, in having protected his book; and when, a few years
later, he published his book on Style, he dedicated it to Firmian as his
benefactor, thanking him for having scattered the clouds that envy and
ignorance had gathered thickly over his head, and for having protected
one whose only object had been to declare with the greatest caution and
respect the interests of humanity.

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:—

    The treatise ‘Dei Delitti,’ instead of throwing any light on
    the subject of crimes, or on the manner in which they should be
    punished, tends to establish a system of the most dangerous and
    novel ideas, which, if adopted, would go so far as to overturn
    laws received hitherto by the greater part of all civilised
    nations.

And an advocate to the Parliament of Paris thus expressed himself, in
refutation of Beccaria:—

    What can be thought of an author who presumes to establish his
    system on the _débris_ of all hitherto accepted notions, who
    to accredit it condemns all civilised nations, and who spares
    neither systems of law, nor magistrates, nor lawyers?

But of far greater historical interest than such criticism is that
of Ramsay, the Scotch poet and painter, to whom a copy of Beccaria’s
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]

Ramsay argues that the penal laws of a particular country can only be
considered with reference to the needs of a particular country, and not
in the abstract; that the government of a country will always enforce
laws with a view to its own security; and that nothing less than a
general revolution will ever make the holders of political power listen
for a moment to the claims of philosophers.

    But (he goes on) since it would be an absurd folly to expect
    this general revolution, this general reconstruction, which
    could only be effected by very violent means, such as would be
    at least a very great misfortune for the present generation,
    and hold out an uncertain prospect of compensation for the
    next one, every speculative work, like the ‘Dei Delitti e
    delle Pene,’ enters into the category of Utopias, of Platonic
    Republics and other ideal governments; which display, indeed,
    the wit, the humanity, and the goodness of their authors, but
    which never have had nor ever will have any influence on human
    affairs.…

    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.…

    … The cries of sages and philosophers are as the cries of the
    innocent man on the wheel, where they have never prevented, nor
    will ever prevent him from expiring, with his eyes upturned
    to heaven, which will perhaps some day stir up enthusiasm, or
    religious madness, or some other avenging folly, to accomplish
    all that their wisdom has failed to do. It is never the oration
    of the philosopher which disarms the powerful ruler; it is
    something else, which the combination of chance events brings
    about. Meanwhile we must not seek to force it from him, but
    must entreat humbly for such good as he can grant us, that is
    which he can grant us without injury to himself.

Ramsay was so far right, that whether a revolution was the only hope for
theories like Beccaria’s or not, the realisation of many of them was one
of the first results of that general revolution, which seemed to Ramsay
so impossible and undesirable. His letter, as it is a characteristic
expression of that common apathy and despair of change which afflict at
times even the most sanguine and hopeful, so it is, from its misplaced
despair, a good cure for moods of like despondency. For the complete
triumph of Beccaria’s theories about torture, to say nothing of other
improvements in law that he lived to witness, is perhaps the most signal
instance in history of the conquest of theory over practice. For albeit
that his theory was at total variance with the beliefs and ideas of the
whole practical school, Beccaria lived to see torture abolished, not only
in Lombardy and Tuscany, but in Austria generally, in Portugal and in
Sweden, in Russia as well as in France. Yet Ramsay’s fears at the time
were more reasonable than the hopes of Beccaria.

There was little of eventfulness in Beccaria’s life, and the only
episode in it of interest was his visit to Paris in 1766. Thither he
and his friend Pietro had been invited by Morellet, in the name of the
philosophers at Paris, and thither he started in October 1766; not with
Pietro, who could not leave Milan, but with Alessandro Verri, on a
journey which was to include London as well as Paris, and was to occupy
in all a period of six months.

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?

When the visit to Paris was contemplated it was a question of either not
going at all or of leaving Teresa behind; there was not money enough for
her to travel too. For Beccaria, though the son of a marquis and of noble
origin, was not rich. When in his twenty-third year he married Teresa,
his father was so opposed to the match on the score of insufficiency of
fortune, that for some time after the marriage he refused to receive the
young couple into his house, and they lived in considerable poverty.
Appeal had even been made to the Government itself to break off, if
possible, so unsuitable a match; but the lovers had their own way, of
course, in the end, though it was not for some time that the domestic
quarrel was healed, and then, it appears, through the mediation of Pietro
Verri.

Beccaria would certainly have done better not to have gone to Paris
at all. His letters to his wife during his absence show that he was
miserable all the time. In every letter he calculates the duration of
time that will elapse before his return, and there is an even current
of distress and affection running through all the descriptions of his
journey. The assurance is frequent that but for making himself ridiculous
he would return at once. From Lyons he writes that he is in a state of
the deepest melancholy; that even the French theatre he had so much
looked forward to fails to divert him; and he begs his wife to prepare
people for his speedy return by telling them that the air of France has a
bad effect on his health.

Even when Paris was reached, and Beccaria and Alessandro were warmly
welcomed by D’Alembert, Morellet, Diderot, and Baron Holbach, the
homesickness remained. ‘You would not believe,’ says Beccaria to his
wife, ‘the welcomes, the politeness, the demonstrations of friendship
and esteem, which they have shown to me and my companion. Diderot, Baron
Holbach, and D’Alembert especially enchant us. The latter is a superior
man, and most simple at the same time. Diderot displays enthusiasm and
good humour in all he does. In short, nothing is wanting to me but
yourself. All do their best to please me, and those who do so are the
greatest men in Europe. All of them deign to listen to me, and no one
shows the slightest air of superiority.’ Yet Morellet tells us that even
on arrival Beccaria was so absorbed in melancholy, that it was difficult
to get four consecutive words from his mouth.

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 Comédie Française,
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.

Accordingly he made a rapid journey back, leaving his companion to visit
England alone; this expedition to Paris being the only event that ever
broke the even tenor of his life. His French friends rather deserted
him, Morellet in his memoirs going even so far as to speak of him as
half-mad. But it was to his friendship with the Verris that this journey
to Paris was most disastrous, and nothing is more mournful than the petty
jealousies which henceforth completely estranged from him his early
friends. The fault seems to have rested mainly with the two brothers,
whose letters (only recently published) reveal an amount of bitterness
against Beccaria for which it is difficult to find any justification,
and which disposes for ever of all claims of their writers to any real
nobleness of character.[9] They complain to one another of Beccaria’s
Parisian airs, of his literary pride, of his want of gratitude; they
rejoice to think that his reputation is on the wane; that his illustrious
friends at Paris send him no copies of their books; that he gets no
letters from Paris; nay, they even go so far as to welcome the adverse
criticisms of his ‘Dei Delitti,’ and to hope that his ‘golden book’ is
shut up for ever.[10] Alessandro writes to his brother that all his
thoughts are turned to the means of mortifying Beccaria; and the revenge
the brothers think most likely to humiliate him is for Alessandro to
extend the limits of his travels, so as to compare favourably with
Beccaria in the eyes of the Milanese. They delight in calling him a
madman, an imbecile, a harlequin; they lend a ready ear to all that
gossip says in his discredit.[11] In the most trifling action Pietro
sees an intended slight, and is especially sore where his literary
ambition is touched.[12] It angers him that Beccaria should receive
praise for the Apology written against Facchinei, the work having been
entirely written by himself, with some help from his brother, but with
not so much as a comma from the hand of Beccaria.[13] Some books which
Beccaria had brought to him from Paris he imagined were really gifts
to him from the authors; he believed that D’Alembert had sent him his
‘Mélanges’ of his own accord, not at the request of Beccaria, as the
latter had represented; but even Alessandro admits that it was concerning
the books, as Beccaria had said.[14] In short, the whole correspondence
shows that Pietro Verri was extremely jealous of the success which he
himself had helped his friend to attain, and that disappointed literary
vanity was the real explanation of his suddenly transmuted affection.

But, to turn from this unpleasant episode of Beccaria’s life, Catharine
II., soon after his return to Milan, invited him to St. Petersburg, to
assist in the preparation of her intended code of laws. It would seem
from one of Pietro Verri’s letters that Beccaria was at first inclined
to accept the proposal,[15] but it is improbable that any such offer
would really have tempted him to exchange Italian suns for Russian snows,
even if Kaunitz and Firmian had not resolved to remove the temptation,
by making his talents of service at home. This they did by making him
Professor of Political Economy in the Palatine School of Milan, in
November 1768; and his published lectures on this subject form the
largest work he ever wrote.

There is no need to follow in further detail the life of Beccaria, for
from this time to his death twenty-six years afterwards he never did
nor wrote anything which again placed him conspicuously in the world’s
eye.[16] His time was divided between the calls of his family and his
country, but even as a member of the Government he never filled any very
important post nor distinguished himself in any way above his colleagues.
Three years before his death he became a member of a committee for the
reform of the civil and criminal jurisprudence, and he and his former
friend Pietro Verri lived to see many of the ideals of their youth become
the actualities of their manhood, themselves helping to promote their
accomplishment. It is characteristic of Beccaria that on two several
occasions, when the King of Naples came to visit him in his house, he
absented himself purposely from the irksomeness of an interview. So he
lived to the age of fifty-six, little noticed by the world, a lover
of solitude rather than of society, preferring a few friends to many
acquaintances, leading a quiet and useful life, but to the last true to
the philosophy he had professed in his youth, that it is better to live
as a spectator of the world than as one with any direct interest in the
game.

CHAPTER II.

THE GENERAL INFLUENCE OF BECCARIA ON LEGISLATION.

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.

The very success of Beccaria’s work has so accustomed us to its result
that we are apt to regard it, as men regard a splendid cathedral in their
native town, with very little recognition of its claims to admiration.
The work is there, they see it, they live under its shadow; they are
even ready to boast of it; but what to them is the toil and risk of
its builders, or the care and thought of its architects? It may be said
that this indifference is the very consummation Beccaria would most have
desired, as it is the most signal proof of the success of his labour.
So signal, indeed, has been that success, that already the atrocities
which men in those days accepted as among the unalterable conditions of
their existence, or resigned themselves to as the necessary safeguards
of society, have become so repulsive to the world’s memory, that men
have agreed to hide them from their historical consciousness by seldom
reading, writing, or speaking of their existence. And this is surely a
fact to be remembered with hopefulness, when we hear an evil like war
with all its attendant atrocities, defended nowadays by precisely the
same arguments which little more than a hundred years ago were urged on
behalf of torture, but which have proved nevertheless insufficient to
keep it in existence.

It may be asked, How far was Beccaria the first to protest against
the cruelty and absurdity of torture? To this it must be replied that
although actually he was not the first, he was the first to do so with
effect. The difference between previous writers on the subject and
Beccaria is the difference between a man whose ideas are in advance of
those of his age and a man who raises the ideas of his age to a level
with his own. So early as the sixteenth century Montaigne, in his
‘Essay on Conscience,’ had said plainly enough that the putting a man
to the rack was rather a trial of patience than of truth; that pain
was as likely to extort a false confession as a true one; and that a
judge, by having a man racked that he might not die innocent, caused him
to die both innocent and racked. Also Grevius Clivensis wrote a work
whilst in prison in Amsterdam, in which he sought to prove that torture
was iniquitous, fallacious, and unchristian.[17] This was published
in 1624; and nearly a century later a Jesuit, Spee, wrote against the
use of torture, as also against the cruel practices in force against
witches.[18] And in later days Montesquieu, twenty years before Beccaria,
had gone so far as to say that, since a civilised nation like England
had abandoned torture without evil consequences, it was therefore
unnecessary; but he followed the subject to no definite conclusion.

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.’

But the honour of having been the first country to lay aside the use of
torture undoubtedly belongs to England, just as the honour of having
been the first in modern times to abolish capital punishment, except for
political offences, belongs to Russia; and the practical example thus
afforded by our laws probably did more for the general abolition of the
custom than any written treatise on the subject ever would have done
alone. English and foreign jurists long delighted to honour the Common
Law for its non-recognition of torture. But though torture was contrary
to the Common Law, and even to Magna Charta, it was not contrary to
Prerogative; and until the Commonwealth it was used as matter of course
in all grave accusations at the mere discretion of the monarch and Privy
Council.[19] Therefore Beccaria pointed to England as a country which did
not use torture with more justice than Grotius had done, who, when the
rack was still in use amongst us, quoted England as a proof that people
might safely live without torture.

It is of interest to trace some of the practical results which followed
Beccaria’s treatise during the thirty years that he lived after its
publication; that is, from the year 1764 to 1794.

The country in which the first attempt was made to apply his principles
to practice was Russia, where Catharine II. was anxious to establish a
uniform penal code, based on the liberal ideas of the time, which then
found more favour in St. Petersburg than they did at Paris. For this
purpose in 1767 she summoned to Moscow from all the provinces of Russia
those 652 deputies who formed the nearest approach in the history of that
country to a Russian Parliament. In the instructions that were read to
this assembly, as the basis for the proposed codification of the laws,
the principles propounded were couched not only in the spirit but often
in the very words of the author of the ‘Crimes and Punishments.’ The
following are examples:—

    Laws should only be considered as a means of conducting mankind
    to the greatest happiness.

    It is incomparably better to prevent crimes than to punish them.

    The aim of punishment is not to torment sensitive beings.

    All punishment is unjust that is unnecessary to the maintenance
    of public safety.

    In methods of trial the use of torture is contrary to sound
    reason. Humanity cries out against the practice and insists on
    its abolition.

    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.

    In the ordinary state of society the death of a citizen is
    neither useful nor necessary.

The following especially is from Beccaria:—

    Would you prevent crimes, contrive that the laws favour less
    different orders of citizens than each citizen in particular.
    Let men fear the laws and nothing but the laws. Would you
    prevent crimes, provide that reason and knowledge be more and
    more diffused. To conclude: the surest but most difficult
    method of making men better is by perfecting education.[20]

Although these instructions were not so much laws as suggestions of
laws, it is obvious what their effect must have been when published and
diffused throughout Russia. That they were translated into Latin, German,
French, and Italian proves the interest that was taken in Europe by this
first attempt to apply the maxims of philosophy to practical government.

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] 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
régime_. At the very beginning of the Revolution more than a hundred
different offences ceased to incur the penalty of death.

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 many as sixty were
committed within the space of three months.[23]

Torture was definitely and totally abolished in Portugal in 1776, in
Sweden in 1786,[24] and in Austria in 1789. In the latter country,
indeed, it had been abolished by Maria Theresa sixteen years before
in her German and Polish provinces; and the Penal Code of Joseph II.,
published in 1785, was an additional tribute to the cause of reform.
Secret orders were even given to the tribunals to substitute other
punishments for hanging, yet so that the general public should be unaware
of the change. There was the greatest anxiety that it should not be
thought that this change was out of any deference for Beccaria or his
school. ‘In the abolition of capital punishment,’ said Kaunitz, ‘his
Majesty pays no regard at all to the principles of modern philosophers,
who, in affecting a horror of bloodshed, assert that primitive justice
has no right to take from a man that life which Nature only can give him.
Our sovereign has only consulted his own conviction, that the punishment
he wishes substituted for the capital penalty is more likely to be
felt by reason of its duration, and therefore better fitted to inspire
malefactors with terror.’

Nor was it only in Europe that Beccaria’s 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
Penn’s 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]

Thus before his death Beccaria saw torture almost entirely abolished in
Europe, and a general tendency spreading to follow the spirit of the
changes he advocated in other details of criminal law. Probably no other
theorist ever lived to witness so complete an adoption of his principles
in practice, or so thorough a transformation of the system he attacked.
It is possible that he but gave body and voice to ideas of change already
widely prevalent in his time; but the merit of a man belongs none the
less to himself, who changes the instability of public opinion into an
active and solid force, and who gives distinct expression to the longings
vaguely felt by a multitude.

But if the interest of Beccaria’s chapter on Torture is now merely
historical, an interest that is actual still attaches to his advocacy
of the total abolition of capital punishment, this being the cause with
which his name is most generally associated, and for which it is likely
to be longest remembered. Previous writers, like Montaigne, if they
deprecated the excess or severity of the death penalty, never thought of
urging that it should be abolished altogether.

There is an apparent discrepancy in Beccaria’s first condemning death as
too severe a punishment and then recommending lifelong servitude as one
of more deterrent power; but Beccaria would have said that the greater
certainty of the latter more than compensated for the greater severity
of the other. As regards the relative power of the two punishments, it
probably varies in different individuals, some men having a greater
dread of the one, and some of the other. The popular theory certainly
goes too far, when it assumes that all men have a greater dread of the
gallows than of anything else. When George III. once granted a pardon
to the female convicts in Newgate on condition of their transportation
to New South Wales, though seventeen of them accepted the offer, there
were yet six who preferred death to a removal from their native country.
It is also stated by Howard that in Denmark the punishment in cases of
infanticide, namely, imprisonment for life, with labour and an annual
whipping on the place of the crime, was ‘dreaded more than death,’ which
it superseded as a punishment.

It is, however, probable that the frequency of any crime bears little
or no relation to the punishment affixed to it. Every criminal begins
a new career, in which he thinks less of the nature of his punishment
than of his chances of eluding it. Neither tradition nor example count
with him for much in his balance of the chances in his own favour. The
law can never be so certain in its execution as it is uncertain in its
application, and it is the examples of impunity, not of punishment, to
which men turn when they violate the law. So that whether the punishment
for murder be an excruciating death, as in ancient Rome, or a mere fine,
as in ancient England, the motives for escape are always the same, the
means to effect it are always the same, and the belief in his power
to effect it is correspondingly powerful in every criminal guilty of
homicide.

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 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.

Nor are such scruples to convict unreasonable, when we consider the
number who on apparently conclusive evidence have been falsely and
irrevocably condemned to death. Playgoers who have seen ‘The Lyons Mail’
will remember how barely Lesurques, the Parisian gentleman, escaped
punishment for the guilt of Dubosc, the robber and murderer. But the
moral of the story is lost in the play, for Lesurques actually was
executed for the crime of Dubosc, by reason of the strong resemblance
he bore to him, the latter only receiving the due reward for his crimes
after the innocent man had died as a common murderer on the scaffold.
Then there are cases in which, as in the famous case of Calas, some one
having committed suicide, some one else is executed as the murderer. That
dead men tell no tales is as true of men hung as of men murdered, and the
innocence of an executed man may be proved long afterwards or not at all.

Where there is no capital punishment, as in Michigan, a man’s innocence
may be discovered subsequently to conviction, and justice done to him
for the error of the law. Such a case actually happened not long ago in
Michigan, where a prisoner’s innocence was clearly proved after ten
years’ imprisonment. Where capital punishment exists, there is no such
hope; nor is there any remedy if, as in the case of Lewis, who was hung
in 1831, another man thirty-three years afterwards confesses himself
the murderer. It is impossible to preclude all chances of such errors
of justice. Illustrative of this is the story of the church organist
near Kieff, who murdered a farmer with a pistol he stole from a priest.
After his crime he placed the pistol in the sacristy, and then, when he
had prevented the priest from giving evidence against him by the act of
confession, went and denounced the priest as the culprit. The priest, in
spite of his protestations of innocence, was sentenced to hard labour for
life; and when, twenty years afterwards, the organist confessed his guilt
on his deathbed, and the priest’s liberation was applied for, it was
found that he had died only a few months before.[26]

That the scruple to convict diminishes the certainty of punishment, and
therefore raises hopes of impunity, is illustrated by the case of two
American brothers who, desirous to perpetrate a murder, waited till
their victim had left their State, in which capital punishment had been
abolished, and had betaken himself to a State which still retained it,
before they ventured to execute their criminal intention. That such
reluctance to convict is often most injurious to the public is proved by
the case of a woman at Chelmsford who some years ago was acquitted, in
spite of strong evidence, on a charge of poisoning, and who, before her
guilt was finally proved, lived to poison several other persons who would
otherwise have escaped her arts.[27]

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.’

For the same reason it is of little avail to call in question, as
Beccaria does, the right of society to inflict death as a punishment.
There may be a distinction between the right of society and its might,
but it is one of little comfort to the man who incurs its resentment. A
man in a dungeon does better to amuse himself with spiders and cobwebs
than with reflections on the encroachment of the law upon his liberty,
or with theories about the rights of government. Whenever society has
ceased to exercise any of its powers against individuals, it has not been
from the acceptance of any new doctrine as to its rights, but from more
enlightened views as to its real interests, and a cultivated dislike of
cruelty and oppression.

When Beccaria wrote against capital punishment, one great argument
against its abolition was its practical universality. It had been
abolished in ancient Egypt by king Sabaco,[28] in the best period of the
Roman Republics by the Porcian law, and in the time of the Roman Empire
by Calo-Johannes.[29] But these cases were too remote from modern times
to lend much weight to the general argument. At that time Russia alone of
all the countries in the world had, from the accession of the Empress
Elizabeth, afforded a practical example of the fact, that the general
security of life is not diminished by the withdrawal of the protection of
capital punishment. But since that time this truth has become less and
less a theory or speculation, and it now rests on the positive experience
of no inconsiderable portion of the world. In Tuscany, Holland, Portugal,
Russia, Roumania, Saxony, Prussia, Belgium, and in ten of the United
States of America, the death penalty has either been abolished or
discontinued; and can it be thought that the people of those countries
are so indifferent to the safety of their lives as to be content with a
less efficient legal protection than is vouchsafed in countries where the
protection is death?

The opponents of capital punishment may fairly, therefore, draw an
argument in their favour from the fact that so many parts of the world
have found it not incompatible with the general security of life to erase
the death penalty from their list of deterrent agencies. It is better
to rely on so plain a fact than on statistics which, like two-edged
weapons, often cut both ways. The frequency of executions in one country
and their total absence in another may severally coexist with great
numerical equality in the number of murders committed in each. It is
always better, therefore, to look for some other cause for a given number
of murders than the kind of punishment directed to their repression.
They may depend on a thousand other things, which it is difficult to
ascertain or eliminate. Thus both in Bavaria, where capital punishment
has been retained, and in Switzerland, where it had been abolished in
1874, murders have increased greatly in recent years; and this fact has,
with great probability, been attributed to the influence of bad habits
contracted during the Franco-German war.

Capital punishment being less general in the world now than torture was
when Beccaria wrote, it seems to be a fair logical inference that it
is already far advanced towards its total disappearance. For the same
argument which Voltaire applied in the case of torture cannot fail sooner
or later to be applied to capital punishment. ‘If,’ he says, ‘there were
but one nation in the world which had abolished the use of torture; and
if in that nation crimes were no more frequent than in others, … its
example would be surely sufficient for the rest of the world. England
alone might instruct all other nations in this particular; but England is
not the only nation. Torture has been abolished in other countries, and
with success; the question, therefore, is decided.’ If in this argument
we read capital punishment instead of torture, murders instead of crimes,
and Portugal instead of England, we shall best appreciate that which is
after all the strongest argument against capital punishment, namely,
that it has been proved unnecessary for its professed object in so many
countries that it might safely be relinquished in all.

CHAPTER III.

THE INFLUENCE OF BECCARIA IN ENGLAND.

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.

Even the idea of public utility as the final test and standard of
morality is derived from Beccaria, and the famous expression, ‘the
greatest happiness of the greatest number,’ occurs, in capital letters,
in the very first page of the ‘Delitti e delle Pene.’[30] Bentham himself
fully acknowledged this. ‘Priestley was the first,’ he says, ‘unless it
was Beccaria, who taught my lips to pronounce this sacred truth: that
the greatest happiness of the greatest number is the foundation of
morals and happiness.’ And with reference to his idea of the measurable
value of different pains and pleasures, he says: ‘It was from Beccaria’s
little treatise on Crimes and Punishments that I drew, as I well
remember, the first hint of this principle, by which the precision
and clearness and incontestableness of mathematical calculations are
introduced for the first time into the field of morals.’

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.

The first trace of Beccaria’s influence in England appeared in the first
edition of Blackstone’s Commentaries, of which the book on the Criminal
Laws was published the very next year after the appearance of the
Italian treatise. That Blackstone was well acquainted with it is proved
by his frequent reference to it in treating of crimes. From Beccaria he
argues that the certainty of punishments is more effectual than their
severity, and finds it absurd to apply the same punishment to crimes of
different malignity. Blackstone was also the first professional lawyer
to find fault with the frequency of capital punishment in England, and
to point out as ‘a melancholy truth’ the presence of 160 actions in the
statute book which were felonies without benefit of clergy.

But there was one great fallacy, pervading our whole criminal law, which
Blackstone left undetected and untouched. This was, that the severity of
punishment must be augmented in proportion to the increase of temptation,
and that the measure of the guilt of a crime lay in the facility with
which it might be committed. ‘Among crimes of an equal malignity,’ says
Blackstone, ‘those [deserve most punishment, as most injurious] which a
man has the most frequent and easy opportunities of committing, which
cannot so easily be guarded against as others, and which, therefore, the
offender has the strongest inducement to commit.’ And on this principle
he finds it reasonable, that, while the theft of a pocket-handkerchief
should be a capital crime, the theft of a load of hay should only involve
transportation.

There was not an anomaly in our old criminal practice which was not
based on this theory—a theory which had, indeed, its precedent in the
old Hebrew law that punished more severely a theft from a field than a
theft from a house; and the first writer who protested against it was
Eden, afterwards Lord Auckland, who in 1771 published his ‘Principles
of Penal Law,’ one of the best books ever written on the subject. The
influence of Beccaria is apparent in Eden’s work, not only by his
direct reference to it, but by his spirit of declared opposition to the
actual practice of the law. Two instances of its tendency will suffice.
‘Imprisonment, inflicted by law as a punishment, is not according to the
principles of wise legislation. It sinks useful subjects into burthens
on the community, and has always a bad effect on their morals; nor can
it communicate the benefit of example, being in its nature secluded from
the eye of the people.’ And again: ‘Whatever exceeds simple death is mere
cruelty. Every step beyond is a trace of ancient barbarity, tending only
to distract the attention of the spectators and to lessen the solemnity
of the example. There is no such thing as vindictive justice; the idea is
shocking.’

Men of letters as a rule did not speak with this boldness, but in
conscious opposition to professional and popular feeling expressed their
doubts with a hesitation that was almost apologetic. So, for example,
Goldsmith could not ‘avoid even questioning the validity of that right
which social combinations have assumed of capitally punishing offences of
a slight nature.’[31] Strange, that in England such an argument should
ever have seemed a daring novelty, a thing to be said tentatively and
with reserve!

Lord Kames attacked our criminal law in a still more indirect way, by
tracing punishment historically to the revenge of individuals for their
private injuries, and by extolling the excellence of the criminal law of
the ancient Egyptians. They, he said, avoided capital punishments as much
as possible, preferring others which equally prevented the recommission
of crimes. Such punishments effected their end ‘with less harshness
and severity than is found in the laws of any other nation, ancient or
modern.’[32]

Nothing could be more interesting than Lord Kames’ account of the
growth of criminal law, from the rude revenges of savages to the legal
punishments of civilised States; but it was probably intended by its
author less as an historical treatise than as a veiled attack upon the
penal system of his country. It is, therefore, a good illustration of the
timidity of the Theoretical school against the overwhelming forces of
the Practical school of law, which, of course, included the great body
of the legal profession; and it is the first sign of an attempt to apply
the experience of other countries and times to the improvement of our own
jurisprudence.

It certainly should moderate our reverence for ancestral wisdom to find
even a man like Fielding, the novelist, speaking, in his Charge to the
Grand Jury of Middlesex, of the pillory and the loss of a man’s ears as
‘an extremely mild’ punishment for a bad case of libel, or declaring our
punishments of that time to be ‘the mildest and most void of terror of
any other in the known world.’ Yet Fielding recognised several of the
true principles of punishment. He attributed the increase of crime to the
great abuse of pardons, which, he said, had brought many more men to the
gallows than they had saved from it. He also advocated the diminution of
the number of executions, their greater privacy and solemnity, whilst he
recommended their following as closely as possible on conviction, that
pity for the criminal might be lost in detestation for his crime.[33]

But that the humanity of the speculative school of law was not without
some influence on public opinion, as well as to a certain extent a
reflection of it, is proved by a few abortive attempts in Parliament
to mitigate the severity of our penal code in the latter half of the
last century. Even so early as 1752 the Commons agreed to commute the
punishment of felony in certain cases to hard labour in the docks; but
the Lords refused their consent, as from that time onward for more than
eighty years they regularly continued to refuse it to all mitigation
of the laws affecting crime. It must ever remain a matter of regret,
that the _rôle_ of the House of Lords in the matter of criminal law
reform should have continued from 1752 to 1832 to be one of systematic
and obstinate opposition to change, and an opposition which had no
justification in the general level of national enlightenment.

The chief honour of the earliest attempt at law reform belongs to Sir
William Meredith, who in 1770 moved for a committee of inquiry into the
state of the criminal laws. This committee proposed in its report of
the following year the repeal of a few Acts which made certain offences
capital; and accordingly the Commons in 1772 agreed, that it should no
longer be punishable as high treason to make an attempt on the life of
a Privy Councillor, that desertion of officers or soldiers should no
longer be capital, nor the belonging to people who called themselves
Egyptians. Some other proposals were negatived, such as a repeal of the
hard law of James I. against infanticide; but the House of Lords refused
their assent even to the slight changes passed by the Commons. ‘It was an
innovation, they said, and subversion of the law.’[34] It is no reproach
to Meredith, Burke, and Fox that they ceased to waste their strength
against Conservatism such as this. All hope of reform was out of the
question; and the most dreadful atrocities were suffered or defended. In
1777 a girl of 14 lay in Newgate under sentence to be burnt alive for
false coinage, because some whitewashed farthings, that were to pass for
sixpences, were found on her person; and a reprieve only came just as
the cart was ready to take her to the stake. Not till 1790 was the law
abolished by which women were liable to be burnt publicly for high or
petit treason.[35]

But whatever tendency might have been arising in theory or in practice
about this time to mitigate the severity of our laws was destined to
receive a dead check from the publication in 1784 and 1785 respectively
of two books which deserve historical recollection. The first was
Madan’s ‘Thoughts on Executive Justice,’ in which the author, adopting
Beccaria’s principle of the certainty of punishment as the best check on
crime, advocated an unflinching carrying out of the laws as they stood.
‘It was,’ says Romilly, ‘a strong and vehement censure upon the judges
and the ministers for their mode of administering the law, and for the
frequency of the pardons which they granted. It was very much read, and
certainly was followed by the sacrifice of many lives.’

The year before its publication 51 malefactors were executed in London,
the year after 97, whilst not long afterwards was seen the rare spectacle
of nearly 20 criminals hung at a time. Romilly was so much shocked at
what he considered the folly and inhumanity of Madan’s book that he wrote
a short tract of observations upon it, of which he sent a copy to each
of the judges. But it is characteristic of the feeling of that time that
only a hundred copies of his tract were sold. It was, however, from that
time that Romilly began to make the criminal law his special study, so
that to Madan indirectly our country owes the efforts of Romilly.

The other book was from a man whom above all others our forefathers
delighted to honour. This was Archdeacon Paley, who in 1785 published his
‘Moral and Political Philosophy,’ and dedicated it to the then Bishop of
Carlisle. Nor is this fact of the dedication immaterial, for the said
Bishop was the father of the future Lord Chief Justice Ellenborough, who
enjoys the melancholy fame of having been the inveterate and successful
opponent of nearly every movement made in his time, in favour of the
mitigation of our penal laws. The chapter on Crimes and Punishments
in Paley and the speeches of Lord Ellenborough on the subject in the
House of Lords are, in point of fact, the same thing; so that Paley’s
chapter is of distinct historical importance, as the chief cause of the
obstruction of reform, and as the best expression of the philosophy of
his day. If other countries adopted Beccaria’s principles more quickly
than our own, it was simply that those principles found no opponents
anywhere equal to Archdeacon Paley and his pupil, Lord Ellenborough.

Paley, of course, defended the thing he found established; nor,
considering the system he had to defend, did he state the case for it
without ingenuity. He had, indeed, nothing to add to what Blackstone
had said regarding punishment, namely, that it was inflicted, not in
proportion to the real guilt of an offence, but in proportion to its
facility of commission and difficulty of detection. To steal from a shop
was not more criminal than to steal from a house, but, as it was more
difficult to detect, it was more severely punished. Sheep, horses, and
cloth on bleaching-grounds were more exposed to thieves than other kinds
of property; therefore their theft required a stronger deterrent penalty.

There was only one offence which Paley thought the English law punished
too severely, and that was the offence of privately stealing from the
person. In all other cases he defended the application of the capital
penalty. It was, he thought, the peculiar merit of the English law that
it swept into the net every crime which under any possible circumstance
might merit death, whilst it only singled out a few cases in each class
of crime for actual punishment; so that whilst few really suffered death,
the dread and danger of it hung over the crimes of many. The law was not
cruel, for it was never meant to be indiscriminately executed, but left a
large margin for the exercise of mercy.

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.

Such was the reasoning which for nearly half a century governed the
course of English history, and which for all that time it was a heresy to
dispute.

Barbarous spectacles were, Paley thought, justly found fault with, as
tending to demoralise public feeling. ‘But,’ he continued, ‘if a mode
of execution could be devised which would augment the horror of the
punishment, without offending or impairing the public sensibility by
cruel or unseemly exhibitions of death, it might add something to the
efficacy of example; and by being reserved for a few atrocious crimes
might also enlarge the scale of punishment, an addition to which seems
wanting, for as the matter remains at present you hang a malefactor for
a simple robbery, and can do no more to the villain who has poisoned his
father. Something of the sort we have been describing was the proposal,
not long since suggested, of casting murderers into a den of wild beasts,
where they would perish in a manner dreadful to the imagination, yet
concealed from the view.’ It is interesting after this to learn, that
Paley thought torture properly exploded from ‘the mild and cautious
system of penal jurisprudence established in this country,’ and that (to
do him justice) he urged private persons to be tender in prosecuting, out
of regard for the difficulty of prisoners to obtain an honest means of
livelihood after their discharge.

Howard’s book on the Lazarettos of Europe appeared four years after
Paley’s work. Although it did not deal directly with crimes, it
indirectly treated of their connection with punishment. Howard was able
to show that whilst in Middlesex alone 467 persons had been executed in
nine years, only six had been executed in Amsterdam; that for a hundred
years the average number of executions had been one a year at Utrecht
and that for twenty-four years there had not even been one there. The
inference therefore was that the diminution of punishment had a direct
effect in diminishing crime. Howard also advocated the restriction of
capital punishment to cases of murder, arson, and burglary; highwaymen,
footpads, and habitual thieves should, he thought, end their days in a
penitentiary rather than on the gallows. Even this was a bold proposal,
in a state of society yet in bondage to Paley.

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 isn’t 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 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]

Romilly’s first idea with respect to the reform of the criminal law was
a sufficiently humble one. It was nothing more than to raise the amount
of the value of the property, the theft of which should expose a man to
death. Twelvepence, as fixed by the statute of Elizabeth, originally
signified a much greater theft than it had come to signify after a lapse
of two centuries. Romilly had at first no idea of removing the death
penalty for theft; his only hope was to get it affixed to a graver theft
than the larceny of a shilling. Yet even so he could not bring himself to
consult with the judges on the subject of his intended bill, for ‘he had
not the least hope they would approve of the measure.’

It was by the advice of Scarlett, Lord Abinger, that he ventured to aim
at the repeal of all statutes punishing mere theft with death; but,
deeming it hopeless to urge their abolition all at once, he resolved
to begin with that famous statute of Elizabeth which made it a capital
crime to steal a handkerchief or anything else from the person of another
which was of the value of a shilling. His bill to effect this passed
both Houses the same year it was introduced (1808), in spite of the
strong opposition of the great legal dignitaries in either House. The
statute was based, said Judge Burton, on the experience of two and a
half centuries. The alternative punishment of transportation for seven
years, said the Attorney-General, would be too short; it should be for
more years than seven, if not for life. If any change of punishment were
necessary, said Lord Ellenborough, it should be transportation for life.

Such was legal opinion generally as expressed by its ablest
representatives with respect to the due punishment for pocket-picking not
a hundred years ago. It is easy now to smile at such errors, and, at the
barren waste of wisdom spent in their defence, but what weight after that
can be attached, on subjects of the general policy of the law, to the
opinion of its chief professors? Can it be too much regretted that Lord
Chief Justice Ellenborough should have sacrificed to his own authority,
whilst alive, the authority of all judges ever destined to succeed him?

The success which attended Romilly’s Privately Stealing Bill and the
failure which attended almost all his other efforts was probably due
to the fact that larceny from the person without violence was, as has
been said, the one single kind of offence which had Paley’s sanction
for ceasing to be capital. But the very success of his first bill was
the chief cause of the failure of his subsequent ones. For, capital
punishment having been removed for mere pilfering, prosecutions became
more frequent, and the opponents of reform were thus able to declare that
an increase of theft had been the direct consequence of the abolition
of the capital penalty. It was in vain to point out, that the apparent
increase of theft was due to the greater readiness of individuals to
prosecute and of juries to convict, when a verdict of guilt no longer
involved death as the consequence.

Romilly also injured his cause by a pamphlet on the criminal law, in
which he criticised severely the doctrines of Paley. So strongly was
this resented, that in 1810 his bill to abolish capital punishment for
stealing forty shillings from a dwelling-house did not even pass the
Commons, being generally opposed, as it was by Windham, because the
maintenance of Paley’s reputation was regarded as a great object of
national concern.[37] That is to say, men voted not so much against the
bill as against the author of a heresy against Paley.

In those days to steal five shillings’ worth of goods from a shop
was a capital offence, and Paley had explained the philosophy of the
punishment. It would be tedious to follow the course of Romilly’s bill
against this law, called the Shoplifting Act, through the details of
its history. Suffice it to say that it passed the Commons in 1810,
1811, 1813, 1816, but was regularly thrown out by the Lords, and only
definitely became law many years later. But though the debates on the
subject no longer possess the vivid interest that once belonged to them,
and are best left to the oblivion that enshrouds them, it is instructive
to take just one sample of the eloquence and arguments, that once
led Lords and Bishops captive and expressed the highest legal wisdom
obtainable in England.

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 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.

Need it be said that the House of Lords paused, as they were entreated to
do, and that they paused and paused again, in a manner more suggestive
of the full stop than the comma, generally out of deference to the
same authority? Romilly was indignant that so many prelates voted
against his bills; but could they have done otherwise, when the best
legal authorities in England urged that it would be fatal to vote for
them?—when they were gravely told that if a certain bill passed, they
would not know whether they stood on their heads or on their feet?

Lord Ellenborough was so hard upon ‘speculative humanity,’ as opposed
to real practical common sense, that the speculative school are never
likely to forget him. But they owe too much to him not to forgive him;
since he is the standing proof, that in matters of the general policy of
the law professional opinion is a less trustworthy guide than popular
sentiment, and that in questions of law reform it is best to neglect the
fossil-wisdom of forgotten judges, and to seek the opinion of Jones round
the corner as readily as that of Jones upon the Bench.

A strong feeling against the pillory was aroused by the sentence passed
against Lord Cochrane in 1814, by which, for supposed complicity in
a plot to raise the price of the Funds, he was condemned to a year’s
imprisonment, to a fine of 1000_l._, and to stand in the pillory. A bill
for the abolition of the pillory accordingly passed the Commons the
very next year, but Lord Ellenborough succeeded again in bringing the
Upper House to a pause: the pillory forsooth was as old as 1269; it was
spoken of by the old historians; it was not confined to this country,
for Du Cange spoke of it on the Continent. For these reasons the pillory
remained a legal punishment down to the first year of the present reign.

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 Tenterden’s 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 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.

Sir James Mackintosh, who succeeded Romilly as law reformer, in 1820
introduced with success six penal reform bills into the House of Commons;
but the Lords assented to none of them that were of any practical
importance to the country. They agreed, indeed, that it should no longer
be a capital offence for an Egyptian to reside one year in the country,
or for a man to be found disguised in the Mint, or to injure Westminster
Bridge; but they did not agree to remove the capital penalty for such
offences as wounding cattle, destroying trees, breaking down the banks
of rivers, or sending threatening letters. It was feared that if the
punishment were mitigated, the whole of Lincolnshire might be submerged,
whole forests cut down, and whole herds destroyed. As to the Shoplifting
Bill, they would not let death be abolished for stealing in shops
altogether, but only where the value of the theft was under 10_l._ That
seemed the limit of safe concession.

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.

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.

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
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.

Thus it has come about that, after steady opposition and fierce conflict,
English law finds itself at the very point which Johnson and Goldsmith
had attained a hundred years before; so true is it, as Beccaria has said,
that the enlightenment of a nation is always a century in advance of its
practice. The victory has conclusively been with the ultra-philosophers,
as they were once called, with the speculative humanitarians, for whom
good Lord Ellenborough had so honest a contempt. Paley’s philosophy has
long since been forgotten, and if it affords any lesson at all, it lies
chiefly in a comparison between his gloomy predictions and the actual
results of the changes he deprecated. The practical and professional
school of law has yielded on all the most important points to the
dissolving influence of Beccaria’s treatise; and the growing demand for
increasing the security of human life by the institution of a penalty,
more effective because more certain, than that at present in force,
points to the still further triumph of Beccaria’s principles, likely
before long to mark the progress of his influence in England.

CHAPTER IV.

THE PROBLEMS OF PENOLOGY.

If we would bring to the study of Beccaria’s treatise the same
disposition of mind with which he wrote it, we must enter upon the
subject with the freest possible spirit of inquiry, and with a spirit of
doubtfulness, undeterred in its research by authority however venerable,
by custom however extended, or by time however long. It has been from too
great reverence for the wisdom of antiquity that men in all ages have
consigned their lives and properties to the limited learning and slight
experience of generations which only lived for themselves and had no
thought of binding posterity in the rules they thought suitable to their
own times. Beccaria sounded the first note of that appeal from custom
to reason in the dominion of law which has been, perhaps, the brightest
feature in the history of modern times, and is still transforming the
institutions of all countries.

The object, therefore, of this chapter is chiefly negative, being none
other than to raise such mistrust of mere custom, and so strong a sense
of doubt, by the contradictions apparent in existing laws and theories,
that the difficulties of their solution may tempt to some investigation
of the principles on which they rest.

That Penology is still only in its experimental stage as a science,
in spite of the progress it has made in recent times, is clear from
the changes that are so constantly being made in every department of
our penal system. We no longer mutilate nor kill our criminals, as
our ancestors did in the plenitude of their wisdom; we have ceased to
transport them, and our only study now is to teach them useful trades
and laborious industry. Yet whether we shall better bring them to love
labour by compulsory idleness or by compulsory work, whether short
imprisonment or long is the most effective discipline, whether seclusion
or association is least likely to demoralise them, these and similar
questions have their answers in a quicksand of uncertainty. This only
may experience be said to have yet definitely proved, that very little
relation exists in any country between the given quantity of crime and
the quantity or severity of punishment directed to its prevention. It has
taken thousands of years to establish this truth, and even yet it is but
partially recognised over the world.

It would appear at first sight that there could be little to say about
crimes and punishments, so obvious and self-evident seem the relations
that exist between them. Many people still believe in an innate sense
of justice in mankind, sufficient always to prevent wide aberrations
from equity. Is it, they might ask, conceivable that men should ever
lose sight of the distinction between the punishment of guilt and the
punishment of innocence?—that they should ever punish one equally with
the other? Yet there is no country in the world which in its past or
present history has not involved the relations of a criminal in the
punishment inflicted on him; and in savage countries generally it is
still common to satisfy justice with vengeance on some blood-relation of
a malefactor who escapes from the punishment due to his crime.

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 of arson by accident undergoes
different degrees of banishment and a fixed number of bamboo strokes.[40]

Even inanimate objects or animals it has been thought through many ages
reasonable to punish. In Athens an axe or stone that killed anyone
by accident was cast beyond the border; and the English law was only
repealed in the present reign which made a cartwheel, a tree, or a beast,
that killed a man, forfeit to the State for the benefit of the poor. The
Jewish law condemned an ox that gored anyone to death to be stoned, just
as it condemned the human murderer. And in the middle ages pigs, horses,
or oxen were not only tried judicially like men, with counsel on either
side and witnesses, but they were hung on gallows like men, for the
better deterrence of their kind in future.[41]

These customs had doubtless their defenders, and left the world not
without a struggle. It must have cost some one, whosoever first
questioned the wisdom of hanging animals or murdering a criminal’s
relations, as much ridicule as it cost Beccaria to question the efficacy
of torture or the right of capital punishment. But the boldness of
thought in that unknown reformer was probably lost sight of in the
arrogance of his profanity, and he doubtless paid with his own neck for
his folly in defending the pig’s.

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.

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 man’s 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.

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 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.

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 suicide—of Lady Hales
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?

The case of infanticide suggests similar thoughts. When we remember that
both Plato and Aristotle commended as a valuable social custom that
which we treat as a crime; when we recall the fact that the life of a
Spartan infant depended on a committee of elders, who decided whether it
should live or perish, we shall better appreciate the distance we have
travelled, or, as some would say, the progress we have made, if we take
up some English daily paper and read of some high-minded English judge
sentencing, at least formally, some wretched woman to death, because, in
order to save her child from starvation or herself from shame, she has
released it from existence. Yet the feeling, of which such a sentence
is the expression, is often extolled as one of the highest triumphs of
civilisation; and the laws, as if there were no difference between adult
and infant life, glory in protecting the weakness of a child by their
merciless disregard for the weakness of its mother.

But at least, it will be thought, we have by this time arrived at some
principles about punishment which correspond with the eternal truths of
equity. Is not Equality, for instance, one of the primary essentials of
punishment? Does it not stand as a penal axiom with almost the sanction
of a moral law that all men should suffer equally for equal crimes? Yet,
if by equality be meant the same punishment, the same kind of labour,
the same term of servitude, the same pecuniary fine—and this is the only
thing it can mean—what more obvious than that the same punishment for
rich and poor, for young and old, for strong and weak, for men and women,
for educated and uneducated, will bring to the constitution of a penal
code the utmost inequality the imagination can conceive? Beccaria insists
that the law can do no more than assign the same extrinsic punishment to
the same crime; that is, the same punishment, regardless of all other
external considerations; and he calls for the infliction of the same
punishment on the nobleman as on the commoner. Let it be so; but the same
punishment is no longer an equal one; and hence from this very demand
for equality springs the demand for its very opposite, for what Bentham
calls the _equability_ of punishment; that is, consideration for the
different circumstances of individual criminals. So that the same nominal
punishment not being the same real one, equality of punishment appears to
be a chimera, and the law, which punishes, say, a distinguished officer
less severely than it punishes a costermonger for the same crime, errs
perhaps really less from actual equality than if it condemned both to
precisely the same punishment.

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, 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.

Analogy between crime and punishment is another idea which, except in
the case of death for death, has been relegated from the practice of
most criminal laws. Yet the principle has in its favour the authority of
Moses, the authority of the whole world and of all time, that punishment
should, if possible, resemble the crime it punishes in kind; so that
a man who blinds another should be blinded himself, he who disfigures
another be disfigured himself. Thus in the old-world mythology, Theseus
and Hercules inflict on the evil powers they conquer the same cruelties
their victims were famous for; Termenus having his skull broken because
with his own skull he broke the heads of others; and Busiris, who
sacrificed others, being himself sacrificed in his turn. Both Montesquieu
and Beccaria also advocate analogy in punishment, and so does Bentham
to some degree; there being, indeed, few greater contrasts between the
theories of the great English jurist and modern English practice than
that the former should not have deprecated some suffering by burning as a
penalty analogous to the crime of arson, and that he should have advised
the transfixing of a forger’s hand or of a calumniator’s tongue by an
iron instrument before the public gaze as good and efficient punishments
for forgery and slander.

These are some of the difficulties of the subject, which teach us the
necessity of constant open-mindedness with regard to all ideas or
practices connected with criminal law. But, would we further examine our
established notions, we should consider a statement from Hobbes which
goes to the very root of the theory of punishment.

‘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.

Yet, supposing it were proved to-morrow that punishment fails entirely of
the ends imputed to it; that, for example, the greater number of crimes
are committed by criminals who have been punished already; that for one
chance of a man’s reformation during his punishment there are a hundred
in favour of his deterioration; and that the deterrent influence of his
punishment is altogether removed by his own descriptions of it; shall we
suppose for a moment that society would cease to punish, on the ground
that punishment attained none of its professed ends? Would it say to the
horse-stealer, ‘Keep your horse, for nothing we can do to you can make
you any better, nor deter others from trying to get horses in the same
way?’

Or to take a stronger case. A deserter from the ranks escapes to his
home, breaks into it at night, robs an infirm father of all the savings
he has provided for his old age, and in a struggle for their possession
so injures him that he dies. Must the law disclaim all indignation, all
resentment, in the punishment it inflicts, and say to such a ruffian
that it only deals hard with him in order to warn others by his example,
and with the pious hope of making a good man of him in the future? If
resentment is ever just, is it wrong to give it public expression? If it
is natural and right in private life, why should it be a matter of shame
in public life? If there is such a thing as just anger for a single man,
does it become unjust when distributed among a million?

As a matter of fact the law affords a very clear proof, that its real
purpose is to administer retributive justice and that punishment has no
end beyond itself, by its careful apportionment of punishment to crime,
by its invariable adjustment between the evil a man has done and the evil
it deals out to him in return. For what purpose punish offences according
to a certain scale, for what purpose stay to measure their gravity, if
merely the prevention of crime is the object of punishment? Why punish
a slight theft with a few months’ imprisonment and a burglary with as
many years? The slight theft, as easier to commit, as more tempting
accordingly, should surely have a harder penalty affixed to it than a
crime which, as it is more difficult, is also less probable and less in
need of strong counter-inducements to restrain it. That the law never
reasons in this way is because it weighs offences according to their
different degrees of criminality, or, in other words, because it feels
that the fair _retaliation_ for the burglary is not a fair _retaliation_
for the theft.

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 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]

A child’s 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 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 victim’s
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.

The recognition of this regulation of resentment as the main object of
punishment affords the best test for measuring its just amount. For
that amount will be found to be just which is necessary; that is to
say, which just suffices for the object it aims at—the satisfaction
of general or private resentment. It must be so much, and no more, as
will prevent individuals from preferring to take the law into their own
hands and seeking to redress their own injuries. This degree can only
be gathered from experience, nor is it any real objection to it, that it
must obviously be somewhat arbitrary and variable. Both Wladimir I., the
first Christian Czar of Russia, and Wladimir II. tried the experiment of
abolishing capital punishment for murder; but the increase of murders
by the _vendetta_ compelled them to fall back upon the old modes of
punishment.[46] Some centuries later the Empress Elizabeth successfully
tried the same experiment, without the revival of the _vendetta_, the
state of society having so far altered that the relations of a murdered
man no longer insisted on the death of his murderer. But had Elizabeth
abolished all legal punishment for murder—had she, that is, allowed no
public _vendetta_ of any kind—undoubtedly the _vendetta_ would have
become private again.

By the same rule, in the case of theft, the value of the thing stolen,
with some equivalent for the trouble of its recovery, taken from the
offender or made a lien on his earnings, appears to be all that justice
can demand. Sir Samuel Romilly, himself second to none as a lawyer,
wrote seventy years ago: ‘If the restitution of the property stolen,
and only a few weeks’ or even but a few days’ imprisonment were the
unavoidable consequence of theft, no theft would ever be committed.’
Yet the following sentences are taken at random from authentic English
sources: three months’ imprisonment for stealing a pipe, six months for
stealing a penny, a twelvemonth for stealing an umbrella, five years’
penal servitude for stealing some stamps from a letter, seven years for
stealing twopence. In such cases the principle of vindictiveness exceeds
the limits of necessity, and therefore of justice; whilst the law loses
all its dignity as the expression of unimpassioned resentment.

Is it possible, then, so beforehand to apportion punishments to crimes
that when a crime is committed it shall be but necessary to refer to a
code and at once detect its appropriate punishment? Or must the law be
general in its language, and leave a wide margin to the discretion of the
judge? Beccaria would have the judicial function confined solely to the
ascertainment of the fact of a crime, its punishment preordained by the
law. On the other hand it is said, that it is impossible to anticipate
every case that may arise; that no two cases are ever alike; that it
is better to leave the nice adjustment of penalties to the wisdom and
impartiality of a judge, and only limit his discretion by rules of a most
expansive description.

The Chinese penal code of 1647 is probably the nearest approach to
Beccaria’s conception, and nothing is more marvellous than the precision
with which it apportions punishments to every shade of crime, leaving
no conceivable offence, of commission or omission, without its exact
number of bamboo strokes, its exact pecuniary penalty, or its exact term
or distance of banishment. It is impossible in this code to conceive any
discretion or room for doubt left to the judicial officers beyond the
discovery of the fact of an alleged crime. But what is practicable in
one country is practicable in another; so that the charge so often urged
against thus eliminating judicial discretion, that it is fair in theory
but impossible in practice, finds itself at direct issue with the facts
of actual life.[47]

But although the laws of every country thus recognise in different