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progressive tendencies and the influences of Beccaria, but in many respects betrays the writer's attachment to the prevailing traditions. Romilly, who often acknowledged his indebtedness to the Dei Delitti, wrote a reply to Madan and made a searching examination of Paley, and successfully refuted the arguments of both of them." Similarly, Bentham, the arch-critic and prince of constructive expounders, the inexhaustible source of a great multitude of reforms in England, was a disciple of Beccaria, whom he thus apostrophises: “My master, first evangelist of reason, who hast raised thy Italy so much above England and also France . . . thou who speakest reason on laws, whilst in France they speak only jargon (which, however, is reason itself compared with the English jargon), thou who hast made such frequent and useful excursions in the paths of utility.” ” The relationship of Bentham, Romilly, and the English movement to Beccaria and the continental movement will be considered more fully in the succeeding chapters. Besides the spontaneous efforts of these individual writers, the current of progress, so profoundly influenced by Beccaria, was further advanced in several places on the Continent by public societies and academies, which offered prizes for the best plans of penal reform. We have already seen, in the account of the Italian writer's life, that the Economic Society of Berne awarded its medal (1764) to the anonymous author of the Dei Delitti. In 1777 the same society offered a prize, to which Voltaire and Thomas Hollis contributed additional sums, for the best project of a penal code. In 1773 the academy of Mantua proposed to award a medal for a dissertation on a problem relating to the principles of criminal law. And in 178o the academy of Châlonssur-Marne offered a prize for an essay “on the best way of mitigating the harshness of French penal law without endangering public safety.” Many competitors presented theses, in which they suggested publicity of procedure, abolition of torture, discontinuance of the oath that was administered to the accused, full liberty of defence, and other reforms.
Having now pointed out how the reform movement was pushed on by writers and other individual enthusiasts, it is desirable to consider now briefly the efforts in the same direction made by states. From the above considerations, it is clear that a general fermentation was going on throughout Europe. “Tout semblait annoncer,” says Brissot,” “une révolution prochaine dans la législation de l'Europe entière; les philosophes en marquaient les abus; les princes semblaient chercher le moyen de les détruire.” In Austria, the first noteworthy pioneer of reform was Sonnenfels, a Viennese professor, who was stimulated by Beccaria's treatise, and advocated considerable relaxations in the criminal code. Maria Theresa herself did not escape the influence of the growing movement; and in 1768 the “Constitutio criminalis theresiana ’’ was promulgated which, among other changes, limited the application of torture. A few years later the Empress informed Sonnenfels that he was reported to be teaching principles antagonistic to the law established, especially with regard to torture and the capital penalty. Whereupon he presented to the Empress a memorandum condemning the barbarous practice of torture, and appealing to her to abolish capital punishment. And in 1776 we find that torture was formally abrogated in the empire. Attempts were at the same time made in Italy to introduce more rational measures. But here, where torture and other severe practices were more frequent than in most other countries, there was a dogged conservative element, and new proposals met with obstinate opposition. In Mantua, a council of government, held in 1772, admitted the inhumanity of torture, but arrived at no decisive conclusion. The question was referred to the magistrates, most of whom were in favour of its maintenance. Similarly, when the practice had been abolished in Austria the senate of Lombardy met to consider the advisability of following the example, but they came to no decision. Protests and denunciations, however, continued to be made, and with greater frequency and insistence. And so in 1783 Kaunitz openly expressed his disapproval of certain methods of torture, and caused the use of fire and of the wheel to cease. The following year he gave secret instructions to the courts to discontinue the use of the gibbet, but suggested that there was no need to make a public announcement to that effect. The authorities were no doubt anxious that it should not be thought that the change was made out of deference to Beccaria and his disciples. Kaunitz pointed out that his majesty, Joseph II, in abolishing the death penalty, paid no heed to the views of modern philosophers who, affecting horror at the shedding of blood, claimed that repressive justice had not the right to take men's lives, which nature alone had given them. Rather, consulting his own convictions he thought that the various penalties substituted for capital punishment, such as imprisonment, corporal chastisement, fasting, perpetual exile, would, by reason of their duration, strike more terror into the hearts of would-be malefactors. Further, by a decree of 1789 the infliction of all forms of torture was to cease. This was communicated by Kaunitz, who again advised secrecy; but the decree was published in the Tuscan Gazette. Before this total abrogation of torture, Joseph II, some five years after his accession, published his code of crimes and punishments (1785), the object of which was to give a definite direction to penal justice, to remove everything of an arbitrary character from criminal administration, to discriminate clearly between political and common offences, and to render punishments more effective. Capital punishment was limited to high treason, some of the worst horrors of imprisonment were removed, the severity of branding, fasting, and the bastinado was mitigated, blasphemers were to be treated as lunatics and confined in a mad-house, attacks on religion and offences against morality were to be punished, not by death, but by hard labour and the lash, and the punishment of the accused was not to involve confiscation of his property, save in cases of treason. The defects of this code as applied to Lombardy, notwithstanding the attempted amelioration, soon became apparent. Accordingly, representations were made to Vienna; and in 1790 a commission was appointed, of which Beccaria was the most noteworthy member. We have already seen the nature of the minority report as to capital punishment, which was, no doubt, prepared by him; besides his reasoned deprecation of the ubiquitous death penalty, he also condemned the frequent use of the bastinado and the pillory. In Tuscany, under the Grand Duke Leopold, we find the most far-reaching and the most successful adoption of Beccaria's principles in one of the most notable legislative works of the time. When Leopold ascended the ducal throne, the Tuscans were among the most abandoned people of Italy; and in spite of the extreme rigour of the penal law, with all its paraphernalia of
* See infra, Romilly, chap. ii.
* From MS. in University College, London; cited by E. Halévy, La formation du radicalisme philosophique (3 vols.), in vol. i., La jeunesse de Bentham (Paris, 1901), p. 30.
rack, wheel, and gallows, atrocious offences, including murder and violent robbery, were common. In 1786 Leopold resolved to try a more rational scheme, by mitigating the excessive harshness of the law, removing many useless and inconsequent anomalies, and presenting a reconstruction of clarified elements. He therefore prepared a code in which punishments were proportioned to crimes, the number of treasonable acts was reduced, the great severity of imprisonment was relaxed, the much abused right of asylum was revoked, confiscations—so disastrous to the innocent—were diminished, torture and mutilation of witnesses or accused were abolished, and—what is still more remarkable— the capital penalty was discontinued even in the case of murder. In November 1789 this code was published, with the following preamble: “We have recognised with very great satisfaction that the moderation of penalties, combined with greater vigilance to prevent culpable acts, rapid hearing of cases, promptitude and certainty of repression, far from increasing offences, has diminished secondary ones, with the result that the most atrocious crimes are scarcely ever heard of. We have therefore resolved not to postpone any longer the reform of the criminal law, and the abolition of torture and capital punishment as useless things, which do not fulfil the object society aims at.” It is true that Leopold, having succeeded his brother as emperor, issued an edict, June 1790, re-imposing the penalty of death for cases of violent sedition, and another in August 1795 re-establishing it for attempts to subvert the Catholic religion, and for premeditated homicide; but till March 1799 (when the Grand Duke left Tuscany) the sentence of death was pronounced only in two cases, of which one was commuted to perpetual imprisonment. On the whole, the result eminently justified the general mitigation. A contemporary observes that Tuscany, which had been conspicuous for the many crimes and villainies perpetrated there, became “the safest and best ordered state of Europe.” . And it is further related that during a period of twenty years only five murders were committed in Tuscany, whilst in Rome, where the death penalty continued to be inflicted, no fewer than sixty were committed within the short space of three months.” In France, legislative and administrative abuses had for several generations been crying for reform. The existence of longstanding grievances and sufferings, together with the protests, denunciations, appeals to nature and humanity, and demands for reform made by bold and progressive spirits, prepared the way for the enthusiastic reception of Beccaria's treatise. For even down to the middle of the eighteenth century the inquisitorial and secret criminal procedure and the ferocious penal system were an outrageous scandal. And so the book was, naturally, widely read and discussed. Several writers, as has already been shown, helped to propagate the principles ex
* Major-General C. Lee, “Sketch of a plan for the formation of a military colony,” in Memoirs (London, 1792), p. 81.
"Cf. B. Rush, An enquiry into the effects of public punishments upon criminals and upon society (Philadelphia, 1787), p. 15.
pounded in it. Lacretelle attributed the accelerated reform
movement to the influence exercised by the Dei Delitti. Before the revolutionary period public opinion in France, as in most European states, was inevitably gaining ground and acquiring greater and greater force. The old French tribunals were perceptibly modifying their harsh methods. In two royal ordinances (August 24, 1780, and May 1, 1788) the abolition of the two kinds of torture, “la question préparatoire" and “la question préalable,” was announced. The latter proclamation also forbade the judge to pass sentence without stating the offence, and promised reparation to those accused and acquitted. Further,
Louis XVI notified his intention to remodel the entire fabric."
of French criminal jurisprudence; and accordingly he invited the French people at large to submit suggestions and memoranda to the keeper of the seals. Some important measures followed, but met with strong opposition from the parlements of Paris, Metz, Besançon, the Cour des Aides, and other bodies; and so on September 23, 1788, the royal declarations were withdrawn and the project fell through. The reform of the French criminal law was thus reserved for the revolutionary legislators. The principles enunciated by Beccaria imparted to them inspiration and guidance, and the beneficial work accomplished elsewhere, and in certain respects the example of England in particular, supplied an additional incentive. The Constituent Assembly," by a series of decrees of which the most important is that of September 16–29, 1791, entirely reorganised criminal procedure. The “jury d'accusation ” and the “jury de jugement” (corresponding to our grand jury and petty jury) were instituted, proceedings before the latter were to be public and oral, and the powers of the public prosecutor were greatly curtailed. Torture was once more abolished, and accused were to be allowed the help