example, as he may excuse the reparation for the injury done to him. The right to punish rests with the entire community, or the sovereign, and not with any individual; hence an individual may renounce only his particular portion of that right, but not annul that of all the rest.1

As punishments become milder, clemency and pardon become less necessary. Indeed, a perfect system of legislation, where punishments are moderate and procedure is regular and expeditious, would have no room for mercy-the virtue that has sometimes made up in a sovereign for all his other failings. In any case, clemency is the virtue of the maker, not of the executor, of the law. When men perceive that crime may be pardoned, and that punishment is not its inseparable concomitant, the hope of impunity is encouraged, and the belief is established that convictions, which may be remitted and are not, are capricious exhibitions of violence rather than impartial emanations of justice. Therefore let the law and its administrators be inexorable, but the law-maker mild, humane, and merciful. Let the legislator in his aim to promote the general interest see that it is the sum of the interests of each; he will then no longer be constrained to separate at every moment, by partial laws and violent remedies, the public welfare from that of individuals, and to erect the semblance of public security in fear and mistrust.3

It follows from these considerations that asylums of refuge are unjustifiable. There should be no spot within the territory of any state independent of the law. Between right of asylum and impunity little difference exists. Since the effective influence of punishment lies more in its inevitability than in its violence, asylums do more to invite to crimes than punishments do to deter from them.

The place of punishment should be the place of the crime. If an alien of bad character is an object of fear, he may be expelled. "But whether the international extradition of criminals be useful, I would not venture to decide, until laws more in conformity with the needs of humanity, until milder penalties, and until the emancipation of law from the caprice of mere opinion, shall have given security to oppressed innocence and hated virtue, until tyranny shall have ceased." "Is it expedient to place a

1 § 20.

• Reference is made elsewhere to the influence Beccaria's argument exercised on the revolutionary legislators in France.

reward on the head of a known criminal, and to make of every citizen an executioner by arming him against the offender? Either the criminal has fled from his country or he is still within it. In the first case the sovereign encourages the commission of a crime and exposes its author to a punishment, being thereby guilty of an injury and of a usurpation of authority in the dominions of another, and authorising other nations to do the same by himself. In the second case the sovereign displays his own weakness, for he who has the power wherewith to defend himself seeks not to purchase it. Moreover, such an edict upsets all ideas of morality and virtue, which are ever ready to vanish from the human mind at the very slightest breath. Now the laws invite to treachery, and anon they punish it; with one hand the legislator tightens the bonds of the family, of kindred, and of friendship, whilst with the other he rewards whosoever violates and despises them; always in self-contradiction, he at one moment invites to confidence the suspicious natures of men, and at another scatters mistrust broadcast among them. Instead of preventing one crime, he causes a hundred. These are the resources of weak nations, whose laws are but the temporary repairs of a ruined building that totters throughout. In proportion as a nation becomes enlightened, good faith and mutual confidence become necessary, and tend ever more to identify themselves with true policy. . . . Laws which reward treachery and stir up clandestine hostility by spreading mutual suspicion among citizens, are opposed to this union of private and public morality, a union which is so necessary, and to the observance of which individuals might owe their happiness, nations their peace, and the world a somewhat longer period of quiet and repose from the evils which at present pervade it." 1

In the case of minor and obscure offences, however (but not heinous ones), the principle of prescription" may be allowed to operate with no disadvantage to the state. In the first place, the obscure circumstances of the misdeed, and the lapse of time, will prevent the offender's impunity from being taken as an example; secondly, the uncertainty of his fate being removed, he will meantime be afforded opportunities to reform.3

(iii) NATURE AND DIVISION OF CRIMES, AND RELATIVE PUNISHMENTS

There are three classes of crimes: (first, acts tending directly to the subversion of society, or of the sovereign representing it; (secondly, acts injuring individual subjects in respect of their life, property, or honour; thirdly, acts contrary to the positive or negative obligations which bind every individual to the public weal.1

Any act outside these limits can be called a crime or punished as such only by those who find it their interest to do so.

The principle that every citizen may do whatever is not forbidden by the law, without fear of any consequence other than that which may arise from the act itself, should be as inviolable as that of the incorrupt guardianship of the law. Failing this, there can be no legitimate society. It is such freedom that produces liberal and vigorous souls and enlightened minds, that instils into men the virtue that can resist fear, and not that flexible kind of prudence worthy only of a man who can endure a precarious existence.2

The uncertainty of these limits has produced in divers nations ethical systems contrary to their jurisprudence, many legal systems at variance with one another, and a number of laws exposing even the wisest man to severe penalties. Hence the significance of virtue and vice has become vague and variable; and because of the uncertain conditions thus surrounding human life, a fatal apathy has spread over political communities. soever will read with a philosophical eye the codes and annals of different nations will find almost always that the names of virtue and vice, of good citizen and criminal, are changed in the course of ages, not in accordance with the changes that occur in the circumstances of a country, and consequently in conformity with the general interest, but in accordance with the passions and errors that have swayed different legislators in succession. He will often observe that the passions of one age form the basis of the morality of later ones; that strong passions, the offspring of fanaticism and enthusiasm, weakened and, so to speak, gnawed away by time (which reduces to a level all physical and moral phenomena) become little by little the prudence of the age, and a useful instrument in the hand of the strong man and the clever. 1 § 25. § 25.

In this way the vaguest notions of honour and virtue have been produced; for they change with the changes of time, which causes names to survive things." 1

Of the crimes falling within the suggested divisions, high treason is the worst because it is the most injurious to society.2 The next class includes offences against personal security and individual liberty. Injuries to a man's person should be punished by corporal penalties. And here the offending noble or magistrate must be equally subject to the law with the common robber or assassin. Neither the high in rank nor the wealthy ought to be able to pay a price for injuries done to the feeble and the poor; else riches which, under the 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. . . . Men oppose the strongest barriers against open tyranny, but they see not the imperceptible insect which gnaws them away, and makes for the invading stream an opening that is all the more sure by very reason of its concealment from view." 3

Injuries affecting a man's honour should be punished with disgrace. The inadequate legal protection of honour, though there are difficulties in determining its significance, gives rise to duels. The best way to prevent these is not so much to threaten the acceptor of a challenge-for fear of punishment will scarcely prevail over the fear of being disgraced and regarded with contempt by his fellows-as to punish the aggressor, that is the one who provokes the duel, and to declare the innocence of the injured party.

Next as to offences against property. The appropriate punishment for larceny would seem to be a fine, on the ground that he who enriches himself at another's expense ought to suffer at his

1 § 25.

* § 26.

§ 27.

E

own. But as theft is generally the crime of wretchedness and despair, which would only be aggravated by pecuniary penalties, the most fitting punishment will be the temporary servitude of a man's person and his labour by way of compensation to society. If theft is accompanied by violence, the penalty should be a combination of corporal and servile punishment.1 Smuggling, when it incurs no disgrace in public opinion, ought not to be punished with disgrace. The most just penalty is that of losing both the prohibited goods and whatever effects are found with them; and its efficiency will obviously be greater in proportion as the import duty is lower. Where the smuggler has no effects to lose, he may be punished by imprisonment or servitude, not in the same way as the assassin or the thief, but by limiting his labour to the service of the very treasury he wished to defraud. Thus will the punishment be most conformable to the nature of the offence.2 Fraudulent insolvent debtors ought to receive the same punishment as that imposed on false coiners, since it is as great a crime to falsify obligations as to issue counterfeit coin, which is the pledge of such obligations. It is simply barbarous, however, to throw the innocent bankrupt into prison.3 Provisions may be made for enforcing the ultimate payment in full to the creditors; but can the deprivation of his liberty be of any use whatever in the interests of commercial intercourse or of the right of property? It is well to distinguish here between fraud, gross negligence, slight negligence, and innocence, and to graduate the penalties accordingly. But such distinctions should be fixed by the law, not by the dangerous and arbitrary wisdom of a judge. Much may be done to prevent a good deal of culpable bankruptcy, and relieve the misfortunes of the industrious and innocent, e.g. by causing contracts to be registered and allowing interested parties to inspect them, by establishing a public bank with funds got from wisely apportioned taxes on prosperous commerce, and intended for the relief of any unfortunate and deserving citizen. "But easy, simple, and great laws which await but the signal of the legislator, in order to disseminate riches and strength through a nation, are either the

§ 31.

1 § 30. In a footnote, Beccaria says that in the first edition he suggested that an innocent bankrupt ought to be kept guarded in pledge of his debts or employed as a slave to labour for his creditors. "I am ashamed of having so written. I have been excused of irreligion without deserving to be, and I have been accused of sedition without deserving to be! I offended the rights of humanity, and no one reproached me for it!"