FORE:Torture is a certain method for the acquittal of robust villains and for the condemnation of innocent but feeble men. See the fatal drawbacks of this pretended test of trutha test, indeed, that is worthy of cannibals; a test which the Romans, barbarous as they too were in many respects, reserved for slaves alone, the victims of their fierce and too highly lauded virtue. Of two men, equally innocent or equally guilty, the robust and courageous will be acquitted, the weak and the timid will be condemned, by virtue of the following exact train of reasoning on the part of the judge: I as judge had to find you guilty of such and such a crime; you, A B, have by your physical strength been able to resist pain, and therefore I acquit you; you, C D, in your weakness have yielded to it; therefore I condemn you. I feel that a confession extorted amid torments can have no force, but I will torture you afresh unless you corroborate what you have now confessed.
FORE:CHAPTER XXXIII. OF THE PUBLIC TRANQUILLITY.One consequence of these last reflections is, that without writing no society will ever assume a fixed form of government, wherein the power shall belong to[131] the social whole, and not to its parts, and wherein the laws, only alterable by the general will, shall not suffer corruption in their passage through the crowd of private interests. Experience and reason have taught us, that the probability and certainty of human traditions diminish in proportion to their distance from their source. So that if there be no standing memorial of the social contract, how will laws ever resist the inevitable force of time and passion?
FORE: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:Since, therefore, there is more to fear from a punished than from an unpunished criminal, there is the less reason to regret the general impunity of crime. There is indeed a large class of crimes for the prevention of which more would be done, by leaving them to their natural consequences, and to the strong power against them which the general interests and moral feelings of mankind will always enforce, than by actual punishment. It is particularly crimes of dishonesty which are best punished by the mere fact of their discovery. By the Norwegian law if an offender holds any official place he is punished, not by fine or imprisonment, but by the loss of his office and all the privileges connected with it.[59] And if we imagine a country without any legal penalty at all for theft or dishonesty, thieves and their tribe would soon find their proper punishment, by that process of social shifting, which would drive them to the most deleterious or dangerous occupations of life even more effectually than it so drives them at present. The less dependence is placed on the penal sanctions of crime, the stronger do the moral restraints from it become.
FORE:CHAPTER XXIII. PROPORTION BETWEEN CRIMES AND PUNISHMENTS.
FORE:In those days to steal five shillings worth of goods from a shop was a capital offence, and Paley had explained the philosophy of the punishment. It would be tedious to follow the course of Romillys bill against this law, called the Shoplifting Act,[62] through the details of its history. Suffice it to say that it passed the Commons in 1810, 1811, 1813, 1816, but was regularly thrown out by the Lords, and only definitely became law many years later. But though the debates on the subject no longer possess the vivid interest that once belonged to them, and are best left to the oblivion that enshrouds them, it is instructive to take just one sample of the eloquence and arguments, that once led Lords and Bishops captive and expressed the highest legal wisdom obtainable in England.
FORE:This honour, then, is one of those complex ideas[210] which are an aggregate not only of simple ideas but of ideas no less complex than themselves, and which in their various presentments to the mind now admit and now omit some of their different component elements, only retaining some few common ideas, just as in algebra several complex quantities admit of a common divisor. To find this common divisor in the different ideas that men form of honour, we must cast a rapid glance over the first formation of communities.Persons guilty of lesser crimes are usually either punished in the obscurity of a prison, or transported, as an example to nations who have given no offence, to a distant and therefore almost useless servitude. Since the gravest crimes are not those which men are tempted to commit on the spur of the moment, the public punishment of a great misdeed will be regarded by most men as strange and of impossible occurrence; but the public punishment of lighter crimes, to which mens thoughts more readily incline, will make an impression, which, at the same time that it diverts the mind from them, will restrain it still more from crimes of greater gravity. Punishments should not only be proportioned to one another and to crimes in point of force, but also in the mode of their infliction.
FORE:Since, therefore, there is more to fear from a punished than from an unpunished criminal, there is the less reason to regret the general impunity of crime. There is indeed a large class of crimes for the prevention of which more would be done, by leaving them to their natural consequences, and to the strong power against them which the general interests and moral feelings of mankind will always enforce, than by actual punishment. It is particularly crimes of dishonesty which are best punished by the mere fact of their discovery. By the Norwegian law if an offender holds any official place he is punished, not by fine or imprisonment, but by the loss of his office and all the privileges connected with it.[59] And if we imagine a country without any legal penalty at all for theft or dishonesty, thieves and their tribe would soon find their proper punishment, by that process of social shifting, which would drive them to the most deleterious or dangerous occupations of life even more effectually than it so drives them at present. The less dependence is placed on the penal sanctions of crime, the stronger do the moral restraints from it become.CHAPTER I. BECCARIAS LIFE AND CHARACTER.
FORE: If the interpretation of laws is an evil, it is clear that their obscurity, which necessarily involves interpretation, must be an evil also, and an evil which will be at its worst where the laws are written in any other than the vernacular language of a country. For in that case the people, being unable to judge of themselves how it may fare with their liberty or their limbs, are made dependent on a small class of men; and a book, which should be sacred and open to all, becomes, by virtue of its language, a private and, so to speak, a family manual.Lord Ellenborough, on the last day but one of May 1810, appealed to their lordships to pause, before they passed the Shoplifting Bill and gave their assent to the repeal of a law which had so long been held necessary for the security of the public. No one, he insisted, was more disposed than himself to the exercise of clemency, but there was not the slightest ground for the insinuations of cruelty that had been cast on the administration of the law. If shoplifting did not require the penalty of death, the same rule would have to apply to horse- and sheep-stealing; and, in spite of all that was said in favour of this speculative humanity, they must all agree, that prevention of crime should be the chief object of the law, and that terror alone could prevent the crime in question. Those who were thus speculating in modern legislation urged that punishment should[63] be certain and proportionate; but he could satisfy the House that any attempt to apply a punishment in exact conformity to the offence would be perfectly ludicrous. He had consulted with the other judges, and they were unanimously of opinion that it would not be expedient to remit this part of the severity of the criminal law.[38] He therefore entreated them to pause.
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