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Crimes and Punishments Including a New Translation of Beccaria's 'Dei Delitti e delle Pene'

Crimes and Punishments
Including a New Translation of Beccaria's 'Dei Delitti e delle Pene'
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Title: Crimes and Punishments Including a New Translation of Beccaria's 'Dei Delitti e delle Pene'
Release Date: 2019-01-15
Type book: Text
Copyright Status: Public domain in the USA.
Date added: 27 March 2019
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[i]

CRIMES AND PUNISHMENTS


[ii]

BY THE SAME AUTHOR.

Crown 8vo. cloth extra, 7s. 6d.

PRIMITIVE MANNERS AND CUSTOMS.

By James A. Farrer.

‘A book which is really both instructive and amusing,and which will open a new field of thought to manyreaders.’—Athenæum.

‘An admirable example of the application of the scientificmethod and the working of the truly scientific spirit.’—Saturday Review.

CHATTO & WINDUS, Piccadilly, W.

[iii]


[iv]

CRIMES
AND
PUNISHMENTS

INCLUDING A NEW TRANSLATION OF
BECCARIA’S ‘DEI DELITTI & DELLE PENE’

BY
JAMES ANSON FARRER

London
CHATTO & WINDUS, PICCADILLY
1880

All rights reserved


[v]

PREFACE.

The reason for translating afresh Beccaria’s ‘DeiDelitti e delle Pene’ (‘Crimes and Punishments’) is,that it is a classical work of its kind, and that theinterest which belongs to it is still far from beingmerely historical.

It was translated into English long ago; but thechange in the order of the several chapters and paragraphs,which the work underwent before it wasclothed in its final dress, is so great, that the newtranslation and the old one really constitute quitedifferent books.

The object of the preliminary chapters is to placethe historical importance of the original in its justlight, and to increase the interest of the subjects itdiscusses.

The Translator has abstained from all criticism orcomment of the original, less from complete agreement[vi]with all its ideas than from the conviction thatannotations are more often vexatious than profitable,and are best left to the reader to make for himself.There is scarcely a sentence in the book on which acommentator might not be prolix.

To combine the maximum of perspicuity withthe maximum of fidelity to the original has been thecardinal principle observed in the translation. But itwould, of course, have been no less impossible thancontrary to the spirit of the original to have attemptedto render perfectly comprehensible what theauthor purposely wrapped in obscurity. A translationcan but follow the lights and shades of the surfaceit reflects, rendering clear what is clear in theoriginal, and opaque what is opaque.


[vii]

CONTENTS.

PAGE
CHAPTER I.
BECCARIA’S LIFE AND CHARACTER.
State of Lombardy under Count Firmian—The state of criminal law—Torture still in use—The abolition of torture before Beccaria—Beccaria not a lawyer by profession—Autobiographical letter of Beccaria to the Abbé Morellet—Influence on Beccaria of Montesquieu and Helvetius—His philosophy of life and truth—His friends, the Verri—Connection with Pietro Verri—The Caffé periodical—Reception of the ‘Dei Delitti’ in Paris—Translation of it by Morellet—Commentary by Voltaire—The Swiss medal—Beccaria’s fear of ecclesiastical persecution a motive for occasional obscurity—Feeling in Venice against the author—Facchinei’s criticism—Protection of Count Firmian—Adverse criticism by contemporary lawyers—Ramsay’s letter to Diderot, illustrative of the despair of reform—Beccaria’s journey to Paris—His speedy return—Enmity and jealousy of Pietro Verri—Beccaria’s invitation to St. Petersburg—His lectures on political economy, and later life 1
CHAPTER II.
THE GENERAL INFLUENCE OF BECCARIA ON LEGISLATION.
Present inconceivability of torture due to Beccaria—How far he was the first to write against it—Torture first abolished in England—Beccaria’s influence in Russia—Quotations from his treatise in Catharine’s instruction for the new code—Beccaria’s influence in France; Tuscany; Austria; Pennsylvania—Beccaria [viii]the first advocate of the abolition of capital punishment—Relative severity of death and other penalties—Slight relation of crime to punishment—Reasons why capital punishment is always more uncertain than other penalties—Cases accounting for its uncertainty—The efficiency of a punishment its real test—Futility of discussing the general right of punishment—Instances of the abolition of capital punishment in ancient and modern times—The argument for its abolition the same as that for the abolition of torture 29
CHAPTER III.
THE INFLUENCE OF BECCARIA IN ENGLAND.
General debt of English law to Beccaria—English utilitarianism due to Beccaria—His influence first traceable in Blackstone—Fallacy of old criminal law in making the amount of temptation the measure of punishment—Eden the first to expose it in his ‘Principles of Penal Law’—Attitude of men of letters to the criminal law, as of Goldsmith, Lord Kames, and Fielding—First attempt at law reform by Sir W. Meredith—Constant opposition of the House of Lords—Effect on reform of Madan’s ‘Executive Justice’ and Paley’s chapter on Crimes and Punishments—Relation of Paley to Lord Chief Justice Ellenborough—Paley’s defence of English law—His approval of the suggestion of throwing murderers into a den of wild beasts—Howard’s ideas of reform and contribution to it—Bad effect of the French Revolution in England—Romilly’s original idea of reform—His Privately Stealing Bill—His criticism of Paley—His Shoplifting Bill rejected by the Lords—The pillory defended by Lord Ellenborough—Capital punishment for forgery by Lord Tenterden—Rapid changes after the Reform Bill—The triumph of Beccaria’s principles 46
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 [ix]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[x]
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
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