science of law.1 But a man may be an effective reformer without possessing vast erudition; a man may bring about a revolution in morals or religion, with no greater equipment than an ardent unsubduable soul, and a few precepts. He was reproached by Kant for leaning too much to humanitarianism. Beccaria was undoubtedly a humanitarian, a lover of his fellow-creatures, who deplored their ghastly ill-treatment, and believed that justice might well be a little tempered with mercy. But he was not a sentimentalist, like Rousseau, for example, who thought that all men would be good and happy if all laws were repealed. He was not animated merely by an "âme sensible," or a "sensibilité larmoyante." He stood for rational, fair, useful laws that were to be consistently and impartially enforced.

No doubt some defects in his work are perceptible. He was a creature of the age in which he lived. He did not succeed in escaping from the shortcomings of an epoch that mingled, in nearly everything, error with truth. A friend and disciple of the Encyclopædists, he was unable to withdraw himself entirely from the ascendency of their philosophic principles, from the vagaries of the social compact theory. But in spite of his acknowledgments to the French philosophers, his sound common sense and grasp of reality usually led him to generalisations more or less opposed to the implications of some of their dangerous premises, which were really as dogmatic as many of the assertions of their opponents. When he reasons analytically he tends at times! to go astray. He bases the right to punish on the principle of common utility; but sometimes he does not appear to discriminate clearly between the principle of utility and the contractual principle. He does not sufficiently recognise the conception of justice necessarily inherent in human beings. But in the application of his doctrine, he arrives at the right conclusion that the limits of criminal justice depend on the exigencies of social preservation, that is, that no greater penalty should be imposed than is necessary to deter from crimes. Kant's criticism of Beccaria's objections to the death penalty insists that the true aim of the legislator should be, not so much to seek the prevention of crimes and the reformation of offenders, as to exact due reparation from the malefactor in order to counterbalance and atone for his

1 Cf. J. L. E. Lerminier, Introduction générale à l'histoire du droit (Paris, 1835), chap. xv: Estimons Beccaria; il aimait l'humanité; mais il ignorait entièrement la science et l'histoire."

misdeed. But such a principle stringently applied would lead to nothing less than the "lex talionis," and would make any system automatic, lifeless, indifferent to social amelioration. However, when Beccaria attempts to refute the claim to inflict capital punishment, he relies on the two principles of social contract and utility; which, not being reduced to a common element, deprive that part of his penal philosophy, qua philosophy, of perfect coherence. (We shall see later that Bentham, an acuter logician, carefully differentiated these principles.) Again, Beccaria points out that four elements are to be considered in every penalty, namely, intensity, proximity, certainty, duration. Now, as he would admit, the profit resulting from the offence, as contemplated by a would-be delinquent, necessarily prevails over the evil of the threatened penalty, in respect of proximity and certainty. But being too much preoccupied in mitigating the rigour of punishment, that is, its intensity, he fails to recognise (which was clearly seen by the more analytic mind ¦ of Bentham) that what is wanting in proximity and certainty must be compensated by increasing the intensity. Certainty of punishment, he holds, is more effective to prevent crimes than rigour; and by increasing the former we may decrease the latter; but also we must increase proximity, promptitude of punishment, in order to lessen the evil of intensity, and that of uncertainty. Thus in one case he considers uncertainty as an evil, in another as a good. Certainty and proximity are evils on the same ground as intensity. Why should the latter element be invested with a greater reality? Further, the expressions "just" and "useful," reiterated by Beccaria and emphasised as determining factors, are not logically cogent; "just" for him seems to be frequently synonymous with "mild," producing a less totality of punishment, whilst "useful" signifies "efficacious," that is, producing a greater totality. Hence the application of the element of proximity or promptitude would produce the inconsistent result of attenuating and aggravating the punishment at the same time. As to the element of duration, he considers it in his examination of the capital penalty. The latter he describes as the "supreme punishment," and condemns it, apart from considerations of the social contract theory, on the ground that momentary rigour terrifies less than duration of punishment. Now if the penalty of death inspires less terror than perpetual imprisonment, it is because it is less grave. Thus Beccaria's

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reasoning is affected by his humane sentiment; and in the belief that he is lessening certain penalties, he is actually making them more severe.1 Voltaire recognised this fallacy in his Prix de la justice et de l'humanité. And Romilly, with the same data before him, is more logical in admitting the lesser punishment when the greater is allowed. "One reason," he writes, "why I cannot think that death ought so carefully to be avoided among human punishments is, that I do not think death the greatest of evils. Beccaria and his disciples confess that it is not, and recommend other punishments as being more severe and effectual, forgetting, undoubtedly, that if human tribunals have a right to inflict a severer punishment than death, they must have a right to inflict death itself." The Italian author's reasoning is also defective when, despite his condemnation of the gross irregularities of criminal procedure and the unjust conviction based on unreliable or inadequate evidence, he proposes the penalty of banishment for those who are accused of heinous offences and whose guilt is probable but not clearly established. In spite of his solicitude as to the fair treatment of prisoners, he does not suggest that they ought to receive the "benefit of the doubt." A much more serious error on his part-disastrously followed, as we have seen, by the revolutionary legislators in France-is his opposition to the right of pardon by the executive, when once sentence has been pronounced by the courts. This view was the outcome of his principles that public safety must never be sacrificed to that of an individual, and that the law must always be inexorable; but in his fidelity to satisfy here the demands of the abstract syllogism, he forgot to take into account other considerations of supreme importance. He forgot even his own previous salutary pronouncement that political philosophy cannot gain any enduring good for society, unless it is based on the indelible sentiments of the human heart. No one showed the absurdity and cruelty of torture more forcibly than he; but he was wrong in saying that this infamous seeking after truth is a monument of the earlier savage legislation in which trials by fire, boiling water, etc., were proclaimed judgments of God. He must have known that torture was used in Greece and Rome, and that it was re-established in the Middle Ages with the revival of Roman jurisprudence.

Whatever errors and deficiencies are noticeable in Beccaria's

1 Cf. Halévy, op. cit., vol. i, pp. 124-127.

. Letter to Roget, May 9, 1783; in his Memoirs, vol. i, pp. 277-279.

reasoning, they militate but little against the large body of truths propounded in the treatise, which, taking into account its modest proportions, is certainly the most brilliant single contribution) to criminal law reform that has ever appeared. The precious volume proved to be a veritable source of enlightenment to bedimmed minds, and a fruitful intellectual pasture whence arguments and suggestions could readily be gleaned by those opponents of the old régime who had before been inarticulate and resourceless. His principles and conclusions were even adopted and elaborated by great minds and potent personages, like Voltaire, Bentham, Romilly, and were utilised by all contemporary and subsequent reformers. For Beccaria's voice proceeded in the main from an original, independent source; it was not a mere echo of others. His views, couched in a signally incisive and captivating style, could not but sink deep into the minds of discriminating readers. He pointed out that the entire edifice of criminal jurisprudence should be based on the principle of,! public utility and the greatest happiness of the greatest number, and that penal justice should be moderated by the element of humanity. He questioned the legitimacy of capital punishment, and if he failed to convince everybody as to its total abolition, he certainly contributed much to bring about its rapid diminution in the case of a great many offences. He condemned torture in irrefutable arguments that convinced sovereigns in whose territories the practice existed; he reprobated branding, mutilation, and all needlessly atrocious punishments. He urged that the infliction of ferocious punishments by the state inevitably renders its subjects cruel, that the sight of blood so often shed under cover of the law habituates them to the sight of blood shed in furtherance of criminal designs. He denounced the numerous severe punishments inflicted for so-called religious offences, and the ecclesiastical authority in questions of secular jurisdiction. He insisted on the careful proportioning of penalties to crimes. He showed the inhumanity and the unjustifiable character of confiscations. He demanded that the law should be made known and invariable, and not made to depend on the caprice and arbitrary will of the magistrates; and that all subjects should be on an equal footing before the law, so that one class of persons might not be favoured at the expense of another. He showed that social degradation was consequent on the institution of ubiquitous espionage. He attacked the practice of secret accusations, the

use of "lettres de cachet," and the whole existing pernicious procedure; he exposed its abuses, its inquisitorial character, its denial of rights to the accused, its suppression of evidence, its concoction of mere suspicions, its exaction of oaths from the accused, its laying of traps in the course of the unwary victim's examination, its factitious calculation of the validity and relevance of evidence, its sudden construction of innocent acts as crimes, its lingering uncertainty. He called for a reform of the horrible prison system, the promiscuous throwing together of old and young, men and women, innocent, suspects, and guilty, first offenders and habitual criminals; he denounced the rigours of detention before trial; and urged an alteration of the foul conditions of gaols. He appealed to the universal conscience of mankind, and pointed out that it was necessary to effect a union between the principles of jurisprudence and the fundamentals of morality. He desired the whole structure of criminal law and penal administration to be based on reason,-not indeed on a fantastic "ratio" distilled from airy subtleties and metaphysical obscurities, but on reason that is intimately allied to common sense; he desired it to be based not on the vindictiveness of a savage, but on the justice and humanity of a true man. He showed that in the conduct of human affairs, the guidance of the head, which is so prone to play the tyrant, should be supplemented by the ineradicable feelings of the heart.