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But ought such a crime to be let go unpunished in the case of a man who has no effects to lose? No: there are kinds of smuggling of so much importance to the revenue (which is so essential and so difficult a part of a good system of laws), that such a crime deserves a considerable punishment, even imprisonment or servitude; but imprisonment and servitude conformable to the nature of the crime itself. For example, the prison of the tobacco-smuggler ought not to be the same as that of the assassin or the thief; and the labours of the former, limited to the work and service of the very treasury he wished to defraud, will be the punishments most conformable to the nature of his crime.But of far greater historical interest than such criticism is that of Ramsay, the Scotch poet and painter, to whom a copy of Beccarias treatise had been shown by Diderot, and who wrote a letter about it to the latter, which, though it contains some very just criticisms on Beccaria, yet reads for the most part very curiously by the light of subsequent history, and illustrates graphically the despair of all reform then felt by most men of reflection.[8]
ONE:The following especially is from Beccaria: THREE:It was by the advice of Scarlett, Lord Abinger, that he ventured to aim at the repeal of all statutes punishing mere theft with death; but, deeming it hopeless to urge their abolition all at once, he resolved to begin with that famous statute of Elizabeth which made it a capital crime to steal a handkerchief or anything else from the person of another which was of the value of a shilling. His bill to effect this[60] passed both Houses the same year it was introduced (1808), in spite of the strong opposition of the great legal dignitaries in either House. The statute was based, said Judge Burton, on the experience of two and a half centuries. The alternative punishment of transportation for seven years, said the Attorney-General, would be too short; it should be for more years than seven, if not for life. If any change of punishment were necessary, said Lord Ellenborough, it should be transportation for life.
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TWO:It was this system that Beccarias little work[3] destroyed, and had that been its only result, it would still deserve to live in mens memories for its historical interest alone. For upon the legislation of that time, and especially upon that of Italy, this pamphlet on criminal law broke like a ray of sunlight on a dungeon floor, making even blacker that which was black before by the very brilliancy which it shed upon it. To Beccaria primarily, though not of course solely, belongs the glory of having expelled the use of torture from every legal tribunal throughout Christendom.

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TWO:Even when Paris was reached, and Beccaria and Alessandro were warmly welcomed by DAlembert, Morellet, Diderot, and Baron Holbach, the homesickness remained. You would not believe, says Beccaria to his wife, the welcomes, the politeness, the demonstrations of friendship and esteem, which they have shown to me and my companion. Diderot, Baron Holbach, and DAlembert especially enchant us. The latter is a superior man, and most simple at the same time. Diderot displays enthusiasm and good humour in all he does. In short, nothing is wanting to me but yourself. All do their best to please me, and those who do so are the greatest men in Europe. All of them deign to listen to me, and no one shows the slightest air of superiority. Yet[24] Morellet tells us that even on arrival Beccaria was so absorbed in melancholy, that it was difficult to get four consecutive words from his mouth.
FORE:But of far greater historical interest than such criticism is that of Ramsay, the Scotch poet and painter, to whom a copy of Beccarias treatise had been shown by Diderot, and who wrote a letter about it to the latter, which, though it contains some very just criticisms on Beccaria, yet reads for the most part very curiously by the light of subsequent history, and illustrates graphically the despair of all reform then felt by most men of reflection.[8]

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FORE:CHAPTER VIII. WITNESSES.

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FORE:Whoever kills himself does a lesser evil to society than he who for ever leaves the boundaries of his country, for whilst the former leaves therein all his substance, the latter transports himself together with part of his property. Nay, if the power of a community consists in the number of its members, the man who withdraws himself to join a neighbouring nation does twice as great an injury as he who simply by death deprives society of his existence. The question, therefore, reduces itself to this: whether the leaving to each member of a nation a perpetual liberty to absent himself from it be advantageous or detrimental.

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FORE:Capital punishment being less general in the world now than torture was when Beccaria wrote, it seems to be a fair logical inference that it is already far advanced towards its total disappearance. For the same argument which Voltaire applied in the case of torture cannot fail sooner or later to be applied to capital punishment. If, he says, there were but one nation in the world which had abolished the use of torture; and if in that nation crimes were no more frequent than in others, its example would be surely sufficient for the rest of the world. England alone might instruct all other nations in this particular; but England is not the only nation. Torture has been abolished in other countries, and with success; the question, therefore, is decided. If in this argument we read capital punishment instead of torture, murders instead of crimes, and Portugal instead of England, we shall best appreciate that which is after all the strongest argument against capital punishment, namely, that it has been proved unnecessary for its professed object in so many countries that it might safely be relinquished in all. Some remnants of the laws of an ancient conquering people, which a prince who reigned in Constantinople some 1,200 years ago caused to be compiled, mixed up afterwards with Lombard rites and packed in the miscellaneous volumes of private and obscure commentatorsthese are what form that set of traditional opinions which from a great part of Europe receive nevertheless the name of laws; and to this day it is a fact, as disastrous as it is common, that some opinion of Carpzovius, some old custom pointed out by Clarus, or some form of torture suggested in terms of complacent ferocity by Farinaccius, constitute the laws, so carelessly followed by those, who in all trembling ought to exercise their government over the lives and fortunes of men. These laws, the dregs of the most barbarous ages, are examined in this book in so far as regards criminal jurisprudence, and I have dared to expose their faults to the directors of the public happiness in a style which may keep at[112] a distance the unenlightened and intolerant multitude. The spirit of frank inquiry after truth, of freedom from commonplace opinions, in which this book is written, is a result of the mild and enlightened Government under which the Author lives. The great monarchs, the benefactors of humanity, who are now our rulers, love the truths expounded, with force but without fanaticism, by the obscure philosopher, who is only roused to indignation by the excesses of tyranny, but is restrained by reason; and existing abuses, for whosoever well studies all the circumstances, are the satire and reproach of past ages, and by no means of the present age or of its lawgivers.

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TWO:Others again measure crimes rather by the rank of the person injured than by their importance in regard to the public weal. Were this the true measure of crimes, any act of irreverence towards the Supreme Being should be punished more severely than the assassination of a monarch, whereas the superiority of His nature affords an infinite compensation for the difference of the offence.
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A man cannot be called guilty before sentence has been passed on him by a judge, nor can society deprive him of its protection till it has been decided that he has broken the condition on which it was granted. What, then, is that right but one of mere might by which a judge is empowered to inflict a punishment on a citizen whilst his guilt or innocence are still undetermined? The following dilemma is no new one: either the crime is certain or uncertain; if certain, no other punishment is suitable for it than that affixed to it by law; and torture is useless, for the same reason that the criminals confession is useless. If it is uncertain, it is wrong to torture an[149] innocent person, such as the law adjudges him to be, whose crimes are not yet proved.The object of the preliminary chapters is to place the historical importance of the original in its just light, and to increase the interest of the subjects it discusses.
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