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.