THREE:The following letter by Beccaria to the Abb Morellet in acknowledgment of the latters translation of his treatise is perhaps the best introduction to the life and character of the author. The letter in question has been quoted by Villemain in proof of the debt owed by the Italian literature of the last century to that of France, but from the allusions therein contained to Hume and the Spectator it is evident that something also was due to our own. Beccaria had spent eight years of his youth in the college of the Jesuits at Parma, with what sense of gratitude this letter will show. The following is a translation of the greater part of it:
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THREE: False ideas of utility entertained by legislators are one source of errors and injustice. It is a false idea of utility which thinks more of the inconvenience of individuals than of the general inconvenience; which tyrannises over mens feelings, instead of arousing them into action; which says to Reason, Be thou subject. It is a false idea of utility which sacrifices a thousand real advantages for one imaginary or trifling drawback; which would deprive men of the use of fire because it burns or of water because it drowns; and whose only remedy for evils is the entire destruction of their causes. Of such a kind are laws prohibiting the wearing of arms, for they only disarm those who are not inclined nor resolved to commit crimes, whilst those who have the courage to violate the most sacred laws of humanity, the most important in the law-code, are little likely to be induced to respect those lesser and purely arbitrary laws, which are easier to contravene with impunity; and the strict observance of which would imply the destruction of all personal liberty, (that liberty dearest to the enlightened legislator and to men generally,) subjecting the innocent to vexations[234] which only the guilty deserve. These laws, whilst they make still worse the position of the assailed, improve that of their assailants; they increase rather than diminish the number of homicides, owing to the greater confidence with which an unarmed man may be attacked than an armed one. They are not so much preventive of crimes as fearful of them, due as they are to the excitement roused by particular facts, not to any reasoned consideration of the advantages or disadvantages of a general decree. Again, it is a false idea of utility, which would seek to impart to a multitude of intelligent beings the same symmetry and order that brute and inanimate matter admits of; which neglects present motives, the only constantly powerful influences with the generality of men, to give force to remote and future ones, the impression of which is very brief and feeble, unless a force of imagination beyond what is usual makes up, by its magnifying power, for the objects remoteness. Lastly, it is a false idea of utility, which, sacrificing the thing to the name, distinguishes the public good from that of every individual member of the public. There is this difference between the state of society and the state of nature, that in the latter a savage only commits injuries against others with a view to benefit himself, whilst in the former state men are sometimes moved by bad laws to injure others without any corresponding benefit to themselves. The tyrant casts[235] fear and dread into the minds of his slaves, but they return by repercussion with all the greater force to torment his own breast. The more confined fear is in its range, so much the less dangerous is it to him who makes it the instrument of his happiness; but the more public it is and the larger the number of people it agitates, so much the more likely is it that there will be some rash, some desperate, or some clever and bold man who will try to make use of others for his own purpose, by raising in them hopes, that are all the more pleasant and seductive as the risk incurred in them is spread over a greater number, and as the value attached by the wretched to their existence diminishes in proportion to their misery. This is the reason why offences ever give rise to fresh ones: that hatred is a feeling much more durable than love, inasmuch as it derives its force from the very cause that weakens the latter, namely, from the continuance of the acts that produce it.Where there is no capital punishment, as in Michigan, a mans innocence may be discovered subsequently to conviction, and justice done to him for the error of the law. Such a case actually happened not long ago in Michigan, where a prisoners innocence[41] was clearly proved after ten years imprisonment. Where capital punishment exists, there is no such hope; nor is there any remedy if, as in the case of Lewis, who was hung in 1831, another man thirty-three years afterwards confesses himself the murderer. It is impossible to preclude all chances of such errors of justice. Illustrative of this is the story of the church organist near Kieff, who murdered a farmer with a pistol he stole from a priest. After his crime he placed the pistol in the sacristy, and then, when he had prevented the priest from giving evidence against him by the act of confession, went and denounced the priest as the culprit. The priest, in spite of his protestations of innocence, was sentenced to hard labour for life; and when, twenty years afterwards, the organist confessed his guilt on his deathbed, and the priests liberation was applied for, it was found that he had died only a few months before.[26]
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ONE:Torture, again, is employed to discover if a criminal is guilty of other crimes besides those with which he is charged. It is as if this argument were employed: Because you are guilty of one crime you may be guilty of a hundred others. This doubt weighs upon me: I wish to ascertain about it by my test of truth: the laws torture you because you are guilty, because you may be guilty, because I mean you to be guilty.There is no doubt that Beccaria always had a strong preference for the contemplative as opposed to the practical and active life, and that but for his friend Pietro Verri he would probably never have distinguished himself at all. He would have said with Plato that a wise man should regard life as a storm, and hide himself behind a wall till it be overpast. He almost does say this in his essay on the Pleasures of the Imagination, published soon after the Crimes and Punishments. He advises his reader to stand aside and look on at the rest of mankind as they run about in their blind confusion; to make his relations with them as few as possible; and if he will do them any good, to do it at that distance which will prevent them from upsetting him or drawing him away in their own vortex. Let him in happy contemplation enjoy in silence the few moments that separate his birth from his disappearance. Let him leave men to fight,[12] to hope, and to die; and with a smile both at himself and at them, let him repose softly on that enlightened indifference with regard to human things which will not deprive him of the pleasure of being just and beneficent, but which will spare him from those useless troubles and changes from evil to good that vex the greater part of mankind.
ONE:What should men think when they see wise magistrates and grave priests of justice with calm indifference causing a criminal to be dragged by their slow procedure to death; or when they see a judge, whilst a miserable wretch in the convulsions of his last agonies is awaiting the fatal blow, pass away[178] coldly and unfeelingly, perhaps even with a secret satisfaction in his authority, to enjoy the comforts and pleasures of life? Ah they will say, these laws are but the pretexts of force, and the studied cruel formalities of justice are but a conventional language, used for the purpose of immolating us with greater safety, like victims destined in sacrifice to the insatiable idol of tyranny. That assassination which they preach to us as so terrible a misdeed we see nevertheless employed by them without either scruple or passion. Let us profit by the example. A violent death seemed to us a terrible thing in the descriptions of it that were made to us, but we see it is a matter of a moment. How much less terrible will it be for a man who, not expecting it, is spared all that there is of painful in it.
ONE:Something, however, occurred more fatal to the reform of our penal laws than even the philosophy of Paley, and that was the French Revolution. Before 1790 there had been 115 capital offences in France; so that to alter the criminal law in England was to follow a precedent of unpleasant auspices. Reform not unnaturally savoured of revolution, and especially a reform of the penal laws. In 1808 Romilly said he would advise anyone, who desired to realise the mischievous effects of the French Revolution in England to attempt some legislative reform on humane and liberal principles. With bitterness he tells the story of a young nobleman, who, addressing him insolently at the bar of the House of Commons, informed him that he for his part was for hanging all criminals. Romilly observed that he supposed he meant punishments should be certain and the laws executed, whatever they were. No, no, was the reply, it isnt that. There is no good done by mercy. They only get worse: I would hang them all up at once. And this represented the prevalent[59] opinion. Windham, in a speech against the Shoplifting Bill, inquired, Had not the French Revolution begun with the abolition of capital punishment in every case? Was such a system as this was to be set up without consideration against that of Dr. Paley![36]CHAPTER XX. CERTAINTY OF PUNISHMENTSPARDONS.
