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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[79] by an iron instrument before the public gaze as good and efficient punishments for forgery and slander.

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The Translator has abstained from all criticism or comment of the original, less from complete agreement[vi] with all its ideas than from the conviction that annotations are more often vexatious than profitable, and are best left to the reader to make for himself. There is scarcely a sentence in the book on which a commentator might not be prolix.CHAPTER XII. TORTURE.

ONE:Whoever, therefore, shall wish to honour me with his criticisms, I would have begin with a thorough comprehension of the purpose of my work��a purpose which, so far from diminishing legitimate authority, will serve to increase it, if opinion can effect more over men��s minds than force, and if the mildness and humanity of the government shall justify it in the eyes of all men. The ill-conceived criticisms that have been published against this book are founded on confused notions, and compel me to interrupt for a moment the arguments I was addressing to my enlightened readers, in order to close once for all every door against the misapprehensions of timid bigotry or against the calumnies of malice and envy.

ONE: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[55] 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.

ONE: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[36] many as sixty were committed within the space of three months.[23]

ONE:For instance, the injury to the public is no greater the hundredth time a man steals a rabbit than it is the first. The public may be interested in the prevention of poaching, but it is not interested in the person of the poacher, nor in the number of times he may have broken the law. The law claims to be impersonal��to treat offences as they affect the State, not as they affect individuals; to act mechanically, coldly, and dispassionately. It has, therefore, simply to deal with the amount of injury done by each specific offence, and to affix to it its specific penalty, regardless of all matters of moral antecedents. The repetition of an offence may make its immorality the greater, but its[88] criminality remains the same, and this only is within the province of the law.

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THREE:CHAPTER XXXIII. OF THE PUBLIC TRANQUILLITY.

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ONE:Torture, again, is inflicted upon an accused man in order to discover his accomplices in crime. But if it is proved that it is not a fitting method for the discovery of truth, how will it serve to disclose accomplices, which is part of the truth to be discovered? As if a man who accuses himself would not more readily accuse others. And is it just to torment men for the crimes of others? Will not the accomplices be disclosed from the examination of the witnesses and of the accused, from the proofs and whole circumstances of the crime; in sum, from all those very means which should serve to convict the accused himself of guilt? Accomplices generally fly immediately after the capture of a companion; the uncertainty[155] of their lot of itself condemns them to exile, and frees the country from the danger of fresh offences from them; whilst the punishment of the criminal who is caught attains its precise object, namely, the averting of other men by terror from a similar crime.The right to ask such a question derives itself from recent experience. In 1853 the country decided to shorten terms of penal servitude as compared with those of the then expiring system of transportation, for which they were to be substituted. Four years later it was resolved to equalise terms of penal servitude with those formerly given of transportation, though transportation for seven years was still to have its equivalent in three of penal servitude. Then came the garrotting year, 1862, in consequence of which the minimum term of penal servitude was raised to five years, whilst no sentence of penal servitude, after a previous conviction of felony, was to be for less than seven years. Now again the tide has turned in favour of shorter sentences, and it is officially proposed to relinquish the latter minimum of servitude as too severe, and as leading in practice to sentences of simple imprisonment, which on the other hand are declared to be too slight.

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THREE:Such are the fatal arguments employed, if not clearly, at least vaguely, by men disposed to crimes, among whom, as we have seen, the abuse of religion is more potent than religion itself.

THREE:Neither the noble nor the rich man ought to be able to pay a price for injuries committed against the feeble and the poor; else riches, which, under the[206] protection of the laws, are the prize of industry, become the nourishment of tyranny. Whenever the laws suffer a man in certain cases to cease to be a person and to become a thing, there is no liberty; for then you will see the man of power devoting all his industry to gather from the numberless combinations of civil life those which the law grants in his favour. This discovery is the magic secret that changes citizens into beasts of burden, and in the hand of the strong man forms the chain wherewith to fetter the actions of the imprudent and the weak. This is the reason why in some governments, that have all the semblance of liberty, tyranny lies hidden or insinuates itself unforeseen, in some corner neglected by the legislator, where insensibly it gains force and grows.

THREE:CHAPTER XI. OATHS.This honour, then, is one of those complex ideas[210] which are an aggregate not only of simple ideas but of ideas no less complex than themselves, and which in their various presentments to the mind now admit and now omit some of their different component elements, only retaining some few common ideas, just as in algebra several complex quantities admit of a common divisor. To find this common divisor in the different ideas that men form of honour, we must cast a rapid glance over the first formation of communities.

THREE:The necessity of remedying the disorders caused by the physical despotism of each man singly produced the first laws and the first magistrates; this was the end and object of the institution of societies, and this end has always been maintained, either in reality or appearance, at the head of all codes, even of those that operated otherwise. But the closer contact of men with one another and the progress of their knowledge brought about an endless series of mutual actions and needs, which ever lay beyond the foresight of the laws and below the actual power of individuals. From this epoch began the despotism of opinion, which afforded the only means for obtaining from others those benefits and averting those evils, for which the laws failed to provide. It is this opinion that is the trouble equally of the wise man and the fool; that has raised the semblance of virtue to higher credit than virtue itself; that even makes the rascal turn missionary, because he finds his own[211] interest therein. Hence the favour of men became not only useful but necessary, if a man would not fall below the general level. Hence, not only does the ambitious man seek after such favour as useful to himself, and the vain man go begging for it as a proof of his merit, but the man of honour also may be seen to require it as a necessity. This honour is a condition that very many men attach to their own existence. Born after the formation of society, it could not be placed in the general deposit; it is rather a momentary return to the state of nature, a momentary withdrawal of one��s self from the dominion of those laws which, under the circumstances, fail to afford the sufficient defence required of them.

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ONE: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[33] 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:��

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ONE:The following letter by Beccaria to the Abb�� 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:��

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THREE: