Only those are true and useful laws that do not alienate the minds of numbers of subjects, that unite and identify their own particular interests with those of the commonwealth. Again, capital punishment is not just. In order that a punishment may be just it must be susceptible of graduation conformably to the amount of atrocity in the offence committed, and should contain only such a degree of intensity as will suffice to deter men from criminal acts. Now penal servitude fulfils these requirements, and consequently from the point of view of reason, public policy, and the object desired it ought to supersede the capital penalty.

It is not a valid argument to say that the great antiquity of an institution necessarily justifies its continued existence. We must weed out those things which, in conformity with the conceptions and needs of a progressive civilisation, are not demanded by necessity, are repugnant to reason and justice, are contrary to public utility. "If I am confronted with the example of almost all ages and almost all nations that have inflicted the punishment of death for some crimes, I will reply that the example avails nothing before truth, against which there is no prescription of time; and that the history of mankind conveys to us the idea of an immense sea of errors, among which a few truths, confusedly and at long intervals, float on the surface. Human sacrifices were once common to almost all nations, yet who for that reason will dare defend them? ... The voice of a philosopher is too feeble against the noise and cries of so many followers of blind custom, but the few wise men scattered over the face of the earth will respond to me from their inmost hearts.

"1

In 1790, that is about a quarter of a century after the publication of the Dei Delitti, Beccaria sat on a commission appointed to recommend reforms in the penal system of Lombardy.2 On the question of capital punishment the opinions of the commissioners were somewhat diverse and contradictory. The minority report was presented by Beccaria, Scotti, and Risi, who suggested the almost entire abolition of the death penalty, and the substitution of penal servitude with greater or lesser severity according to the gravity of the offence. They pointed out that the maintenance of executions was justifiable only in case of absolute necessity, which would arise, for example, when the mere imprisonment of a treasonable criminal would still give him opportunities

to imperil the pacific state of society and the regular administration of justice. Further, in case of open sedition, a culprit might then and there be put to death; but this would not strictly be a juridical application of a penalty, but rather a necessity of war. Apart from these exceptional cases, they urged that the death penalty was not to be retained. And of the three reasons given, two recall precisely the arguments of Beccaria, the third being a new consideration not expounded in our author's treatise. The death penalty, then, should be abrogated, subject to the exception stated, because, in the first place, not being necessary it is not just; secondly, it is not the most efficacious deterrent; and thirdly, it is irreparable.

With regard to its necessity. In order that a penalty may be just, its intensity ought not to exceed the degree necessary to turn men away from offending. Whatever benefits the commission of a crime may be thought to produce, no man would be ready to expose himself to perpetual loss of liberty. Penal servitude for life is really deemed to be more terrible than death. Before capital punishment can be considered necessary and its exemplarity thought sufficient to restrain the gravest offences, it is indispensable to demonstrate by actual facts that, where it has been most frequently applied, such crimes have been less numerous than in countries where it is rarely or never inflicted. On the contrary, say the three commissioners, in examining past and present records they find that where penalties have been the most moderately, but also the most surely, applied, leaving no offence whatever unpunished, there crimes have been less frequent.

Similarly, as to the question of efficacy. The criterion is less the severity of the penalty than its inevitability, provided it is proportioned to the offence. The strongest restraining influence is found not in the transitory spectacle of a wretch's death, but in the permanent example of his long penal servitude, compelling him to repair as much as possible his injury to society. Men do not by any means regard death always as the greatest terror. Further, the capital penalty cannot be graduated in accordance with the number and atrocity of the crimes committed. To impart a greater exemplary effect to imprisonment it is also suggested that prisons should not be placed in distant regions, but should be built in every town, and classified according to the prisoners' criminality and other important considerations.

Lastly, the irreparable character of capital punishment is a particularly powerful argument against it. The proof of guilt is not always perfect; men's evidence and inferences are liable to error. The statements of witnesses and the numerous presumptions often amount only to "moral certainty," which constitutes at most nothing more than probability. But between probability and certainty there is frequently a wide gulf. Among all nations there are many cases of the execution of men who were subsequently shown to be innocent, in spite of the fact that the proof had previously been held irrefragable. It may be said, the commissioners observe, that this danger equally applies to the one case in which the capital penalty is allowed. But here, they point out, they are placed between two opposing necessities: on the one hand, to protect the state from imminent danger of subversion, on the other, to run the distant risk of condemning an innocent man to death; and of the two alternatives, they are compelled to adopt the second, being the less evil.

(v) PROCEDURE.—SECRET ACCUSATIONS. TORTURE

It has already been shown what a great part secret accusations, "lettres de cachet," and similar arbitrary proceedings played in the administration of criminal law in the eighteenth century. With regard to the entire baneful procedure Beccaria took up a decisively hostile attitude. In a very brief but eloquent chapter he condemns in uncompromising terms the practice of secret accusations. "Who can protect himself from calumny," he exclaims, "when it is armed by the strongest shield of tyranny, secrecy? . . . Had I to dictate new laws in any forgotten corner of the universe, my hand would tremble and all posterity would rise before my eyes before I would authorise such a custom as that of secret accusations."

After the arrest of an accused person, it will usually be necessary to keep him in confinement before he is brought to trial. But unless there be sufficient prima facie evidence, the authorities will not be justified if they keep him thus in imprisonment. And it is the law alone, and not the arbitrary pleasure of the judge, that is to determine whether or not there is adequate evidence to detain the accused. There may be more or less valid and relevant evidence in the fact of common report, in a

1 § 9.

suspected man's flight, in a non-judicial confession, or in the confessions of an accomplice; in an accused man's threats against or constant hostility to the person injured; generally, in the various facts of the crime and the relative circumstances. But all these matters should be prescribed by the law, and not by the capricious will of the executive or judiciary. "The more punishments are mitigated, misery and hunger banished from prisons, pity and mercy admitted within their iron doors and set above the inexorable and hardened ministers of justice, the slighter will be the evidence of guilt requisite for the legal detention of the suspected." It is of the utmost importance to prevent convicted persons and those merely accused from being thrown together into the same dungeon. And a man accused of a crime, imprisoned and subsequently acquitted, ought to bear no mark of disgrace."

1

The principle must be firmly established that everybody is to be judged by his equals. If an offence has been committed against a person belonging to a rank different from that of the accused, one half of the jury should be the equals of the accused, the other half of the complainant; so that the private interests of the parties being balanced, by which the appearances of things are involuntarily modified, only the voice of the law and of truth may be heard. A prisoner brought before the court ought to have the right to challenge, up to a certain point, judges or jurors.

The relation of the certainty of a fact to the force of proofs may be indicated by the following general principles: “(1) When the proofs of a fact are dependent on one another, i.e. when each single proof rests on the weight of some other, then the more numerous the proofs are, the smaller is the probability of the fact in question, because the chances of error in the preliminary proofs would increase the probability of error in the succeeding ones. (2) When the proofs of a fact all depend equally on a simple one, their number neither increases nor diminishes the probability of the fact in question, because their total value resolves itself into that of the single one on which they depend. (3) When the proofs are independent of each other, the more numerous the proofs adduced the greater is the probability of the fact in question." 3

The various proofs of an alleged crime may be divided into two classes—"perfect" and "imperfect." The former are such

as include the possibility of innocence, and the latter such as fall short of this certainty. Of the first kind, one proof alone may suffice to obtain a conviction. Of the second kind, so many are required as are sufficient to make up a single perfect proof, that is where each of the proofs taken separately does not exclude the possibility of innocence, but taken collectively they converge on the same point and indicate indubitable guilt. It may be, however, that imperfect proofs, if the accused refuses to rebut them, become perfect. The determination of the "moral certainty" of proofs should be left to a common jury chosen by lot. "There is more safety in the ignorance which judges by sentiment than in the knowledge which judges by opinion. . . Common sense is less fallacious than the learning of a judge, accustomed as he is to reduce everything to an artificial system borrowed from his studies." Finally, all proofs of guilt should be set forth in public. Also the verdict, after it has been arrived at, should be pronounced in open court.1

As soon as the proofs of a crime and its reality have been fully certified, the prisoner should be allowed time and opportunity for preparing his defence. The law and not the judge should fix a certain space of time for this purpose, as well as for the discovery of proofs against him."

A condemned criminal ought to be allowed, like any other witness, to give evidence. "He is dead civilly,' say gravely the peripatetic lawyers, and a dead man is incapable of any action.' In support of this silly metaphor many victims have been sacrificed, and it has very often been disputed with all seriousness whether the truth should not yield to judicial formulas. . . . Forms and ceremonies are necessary in the administration of justice, because they give the people an idea of a justice which is not tumultuary and self-interested, but steadfast and regular. But such forms must not be so firmly fixed by the laws as to be injurious to truth.” 3

Great discrimination should be exercised in estimating the value of evidence, according to the character and interest of the witnesses, and the particular circumstances of each case. Usually the credibility of a witness must be held to diminish in proportion to the marked hostility, on the one hand, or the close friendship, on the other, existing between him and the accused. Againand this is much more important-the credibility of a witness