DEI DELITTI E DELLE PENE. TO THE READER. Lastly, some have thought that the gravity of an acts sinfulness should be an element in the measure of crimes. But an impartial observer of the true relations between man and man, and between man[201] and God, will easily perceive the fallacy of this opinion. For the former relationship is one of equality; necessity alone, from the clash of passions and opposing interests, having given rise to the idea of the public utility, the basis of human justice. But the other relationship is one of dependence on a perfect Being and Creator, who has reserved to Himself alone the right of being at the same time legislator and judge, and can alone unite the two functions without bad effects. If He has decreed eternal punishments to those who disobey His omnipotence, what insect shall dare to take the place of Divine justice, or shall wish to avenge that Being, who is all-sufficient to Himself, who can receive from things no impression of pleasure nor of pain, and who alone of all beings acts without reaction? The degree of sinfulness in an action depends on the unsearchable wickedness of the heart, which cannot be known by finite beings without a revelation. How, then, found thereon a standard for the punishment of crimes? In such a case men might punish when God pardons, and pardon when God punishes. If men can act contrary to the Almighty by offending Him, they may also do so in the punishments they inflict.


There is an apparent discrepancy in Beccarias 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[39] 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. 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 fathers lifetime. It was probably due also to the fathers 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. The very success of Beccarias 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[30] 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 worlds 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.

One thing that might be done, which would also serve at the same time to keep a prisoners family from want, the main source of crime, would be the formation of a Prisoners Fund, for his and their benefit. For this there is a precedent in a quite recent Act. For the Act, which abolished the forfeiture of a felons property, enabled the Crown to appoint an administrator of it, for the benefit of the persons injured by the crime and the felons family, the property itself and its income reverting ultimately to the convict or to his representatives. There could, however, be no objection in justice to the forfeiture of a proportionate part of every felons property, such forfeiture to be dedicated to the formation of a fund, out of which assistance should be given, both to the families of prisoners during their custody and to the prisoners themselves on their discharge.[62] Such a fund might be still further increased by the substitution of a lien on a mans wages or income for many minor offences now punished, but not prevented, by imprisonment. 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 unhappily no mere theory, that the majority of crimes are committed precisely by those who risk most in committing them; by those, that is, who commit them with the aggravated penalty full in view. By the existing law (of which both the Criminal Code- and the Penal Servitude-Commissioners have proposed the mitigation) anyone convicted of felony after a previous conviction for felony is liable to penal servitude for life, or to imprisonment with hard labour for four years, with one or more whippings. The minimum punishment for a second conviction of felony is seven years. Yet, with the knowledge of such increased punishments before their eyes, with the full consciousness of their liabilities as old offenders, official statistics show that of both the male and female convicts in the English convict prisons considerably more than half have incurred previous convictions.[50] Of the male convicts in 1878, 79 per cent.,[93] and of the female 89 per cent., were cases of reciduous crime. May it not, then, be argued from such a failure of the system to an error in the principle on which it rests? For is it not evident that the aggravated penalty does as little to deter as the original punishment does to reform?

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 Madans Thoughts on Executive Justice, in which the author, adopting Beccarias 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.


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

These problems deserve to be solved with such geometrical precision as shall suffice to prevail over the clouds of sophistication, over seductive eloquence, or timid doubt. Had I no other merit than that of having been the first to make clearer to Italy that which other nations have dared to write and are beginning to practise, I should deem myself fortunate;[121] but if, in maintaining the rights of men and of invincible truth, I should contribute to rescue from the spasms and agonies of death any unfortunate victim of tyranny or ignorance, both so equally fatal, the blessings and tears of a single innocent man in the transports of his joy would console me for the contempt of mankind.

There are three sources of the moral and political principles which govern mankind, namely, revelation, natural law, and social conventions. With regard to their principal object there is no comparison between the first and the other two, but they all resemble one another in this, that they all three conduce to the happiness of this present mortal life. To consider the different relations of social conventions is not to exclude those of revelation and natural law; rather it is the thousandfold changes which revelation and natural law, divine and immutable though they be, have undergone in the depraved mind of man, by his own fault, owing to false religions and arbitrary notions of virtue and vice, that make it appear necessary to examine, apart from all other considerations, the result of purely human conventions, expressed or implied, for the public need and welfare: this being an idea in which every sect and every moral system must necessarily agree; and it will always be a laudable endeavour, which seeks to constrain the headstrong and unbelieving to conform to the principles that induce men to live together in society. There are, then, three distinct kinds of virtue and vicethe religious, the natural, and the political. These three kinds ought never to conflict, although all the consequences and duties that flow from any one of them do not necessarily flow from the others. The natural law does not require all that revelation requires,[114] nor does the purely social law require all that natural law requires; but it is most important to distinguish the consequences of the conventional lawthat is, of the express or tacit agreements among menfrom the consequences of the natural law or of revelation, because therein lies the limit of that power, which can rightly be exercised between man and man without a special mandate from the Supreme Being. Consequently the idea of political virtue may, without any slur upon it, be said to be variable; that of natural virtue would be always clear and manifest, were it not obscured by the stupidity or the passions of men; whilst the idea of religious virtue remains ever one and the same, because revealed directly from God and by Him preserved.