THREE:In France Beccarias book became widely popular, and many writers helped to propagate his ideas, such as Servan, Brissot, Lacretelle, and Pastoret. Lacretelle attributes the whole impulse of criminal law reform to Beccaria, while regretting that Montesquieu had not said enough to attract general attention to the subject. His book is said to have so changed the spirit of the old French criminal tribunals, that, ten years before the Revolution, they bore no resemblance to their former selves. All the younger magistrates gave their judgments more according to the principles of Beccaria than according to the text of the law.[21][35] The result of the agitation appeared in the Royal Ordinances of 1780 and 1788, directed to the diminution of torture, the only reforms which preceded the Revolution. It is said that the last time anyone was tortured in France was in the year 1788, the last year of the ancien rgime. At the very beginning of the Revolution more than a hundred different offences ceased to incur the penalty of death.Even the idea of public utility as the final test and standard of morality is derived from Beccaria, and the famous expression, the greatest happiness of the greatest number, occurs, in capital letters, in the very first page of the Delitti e delle Pene.[30] Bentham himself fully acknowledged this. Priestley was the first, he says, unless it was Beccaria, who taught my lips to pronounce this sacred truth: that the[47] greatest happiness of the greatest number is the foundation of morals and happiness. And with reference to his idea of the measurable value of different pains and pleasures, he says: It was from Beccarias little treatise on Crimes and Punishments that I drew, as I well remember, the first hint of this principle, by which the precision and clearness and incontestableness of mathematical calculations are introduced for the first time into the field of morals.
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THREE:Capital punishment makes an impression in prospect which, with all its force, does not fully meet that ready spirit of forgetfulness, so natural to man even in his most important concerns, and so liable to be accelerated by his passions. As a general rule, men are startled by the sight of violent sufferings, but not for long, and therefore such impressions are wont so to transform them as to make of ordinary men either Persians or Spartans; but in a free and settled government impressions should rather be frequent than strong.
THREE:To return to the innocent bankrupt. Granting that his obligation should not be extinguishable by anything short of total payment; granting that he should not be suffered to withdraw from it without the[218] consent of the parties interested, nor to transfer under the dominion of other laws his industry, which should perforce be employed, under penalties, to enable him to satisfy his creditors in proportion to his profits; what fair pretext, I ask, can there be, such as the security of commerce or the sacred right of property, to justify the deprivation of his liberty? Such a deprivation is only of use, when it is sought to discover the secrets of a supposed innocent bankrupt by the evils of servitude, a most unusual circumstance where a rigorous inquiry is instituted. I believe it to be a maxim in legislation, that the amount of political inconveniences varies directly in proportion to the injury they do the public, and inversely in proportion to the difficulty of their proof.For if punishment is weak to prevent crime, it is strong to produce it, and it is scarcely open to doubt that its productive force is far greater than its preventive. Our terms of imprisonment compel more persons to enter a career of crime than they prevent from pursuing one, that being often the only resource left for those who depend on a criminals labour. Whether in prison or the workhouse, such dependents become a charge to society; nor does it seem reasonable, that if one man under sore temptation steals a loaf, a hundred other men who do no such thing must contribute to keep, not only the prisoner himself, but his family too, in their daily bread for so long a time as it pleases the law to detain him from earning his and their necessary subsistence.
THREE:It may be asked, How far was Beccaria the first to protest against the cruelty and absurdity of torture? To this it must be replied that although actually he was not the first, he was the first to do so with effect. The difference between previous writers on the subject and Beccaria is the difference between a man whose ideas are in advance of those of his age and a man who raises the ideas of his age to a level with his[31] own. So early as the sixteenth century Montaigne, in his Essay on Conscience, had said plainly enough that the putting a man to the rack was rather a trial of patience than of truth; that pain was as likely to extort a false confession as a true one; and that a judge, by having a man racked that he might not die innocent, caused him to die both innocent and racked. Also Grevius Clivensis wrote a work whilst in prison in Amsterdam, in which he sought to prove that torture was iniquitous, fallacious, and unchristian.[17] This was published in 1624; and nearly a century later a Jesuit, Spee, wrote against the use of torture, as also against the cruel practices in force against witches.[18] And in later days Montesquieu, twenty years before Beccaria, had gone so far as to say that, since a civilised nation like England had abandoned torture without evil consequences, it was therefore unnecessary; but he followed the subject to no definite conclusion.Another principle would serve admirably to draw still closer the important connection between a misdeed and its punishment, and that is, that the latter should as far as possible conform to the nature of the crime. This analogy facilitates marvellously the contrast that ought to exist between the impulse to[188] the crime and the counter-influence of the punishment, the one, that is, diverting the mind and guiding it to an end quite different from that to which the seductive idea of transgressing the law endeavours to lead it.