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CHAPTER XVII. BANISHMENT AND CONFISCATIONS.

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This fulmination reached Milan on January 15, 1765, and on the 21st the Risposta, or reply, was[17] ready for publication.[7] This defence was the work of his friends, the Verris, and was published, like the original, anonymously; as it was written in the first person throughout, it was generally at the time and even till lately ascribed to the same author as the original, but the fact is now established beyond doubt that the real authors were Pietro and his brother. The writers wisely refrained from the use of retaliatory language, confining themselves in their defence solely to charges of irreligion and sedition, responding to six which accused Beccaria of the latter, and to twenty-three which declared him guilty of the former.[180]I speak of probability in connection with crimes, which, to deserve punishment, ought to be proved. But the paradox is only apparent, if one reflects that, strictly speaking, moral certainty is only a probability, but a probability which is called certainty, because every sensible person necessarily assents to it, by a force of habit which arises from the necessity of acting, and which is prior to all speculation. The certainty requisite for certifying that a man is a criminal is, therefore, the same that determines everyone in the most important actions of his life. The proofs of a crime may be divided into perfect and imperfect, the former being of such a[136] nature as exclude the possibility of a mans innocence, and the latter such as fall short of this certainty. Of the first kind one proof alone is sufficient for condemnation; of the second, or imperfect kind, as many are necessary as suffice to make a single perfect proof; that is to say, when, though each proof taken separately does not exclude the possibility of innocence, yet their convergence on the same point makes such innocence impossible. But let it be noted that imperfect proofs, from which an accused has it in his power to justify himself and declines to do so, become perfect. This moral certainty of proofs, however, is easier to feel than to define with exactitude: for which reason I think that the best law is one which attaches to the chief judge assessors, taken by lot, not by selection, there being in this case more safety in the ignorance which judges by sentiment than in the knowledge which judges by opinion. Where the laws are clear and precise, the function of a judge consists solely in the certification of fact. If for searching out the proofs of a crime ability and cleverness are required, and if in the presentation of the result clearness and precision are essential, all that is required to judge of the result is simple and common good sense, a faculty which is less fallacious than the learning of a judge, accustomed as he is to wish to find men guilty and to reduce everything to an artificial system borrowed from his studies. Happy the nation where the[137] laws are not a science! It is a most useful law that everyone shall be judged by his equals, because where a citizens liberty and fortune are at stake those sentiments which inequality inspires should have no voice; that feeling of superiority with which the prosperous man regards the unfortunate one, and that feeling of dislike with which an inferior regards his superior, have no scope in a judgment by ones equals. But when the crime in question is an offence against a person of a different rank from the accused, then one half of the judges should be the equals of the accused, the other half equals of the plaintiff, that so, every private interest being balanced, by which the appearances of things are involuntarily modified, only the voice of the laws and of truth may be heard. It is also in accordance with justice that an accused person should have power up to a certain point of refusing judges whom he may suspect; and if he is allowed the exercise of this power for some time without opposition, he will seem to condemn himself. Verdicts should be public, and the proofs of guilt public, in order that opinionwhich is, perhaps, the only bond of society there ismay place a check on outbursts of force and passion, and that the people may say, We are not slaves without defence: a feeling which both inspires them with courage and is as good as a tribute to a sovereign who understands his real interest. I refrain from pointing out other details and precautions which[138] require similar regulations. I should have said nothing at all, had it been necessary for me to say everything.

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    FORE:So great, however, did the changes appear to be, that Sir James Mackintosh declared, towards the close of his life, that it was as if he had lived in two different countries, such was the contrast between the past and the present. Yet Sir James died in the very year that the first Reform Bill passed, and it was not till after that event that any really great progress was made towards ameliorating the penal laws.
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    FORE: 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.
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    • THREE:Among other abuses of grammar, which have no slight influence on human affairs, that one is notable which makes the evidence of a condemned criminal null and void. He is dead civilly say gravely the peripatetic lawyers, and a dead man is incapable of any action. In support of this silly metaphor many[139] victims have been sacrificed, and it has very often been disputed with all seriousness whether the truth should not yield to judicial formulas. Provided that the testimony of a condemned criminal does not go to the extent of stopping the course of justice, why should not a fitting period be allowed, even after condemnation, both to the extreme wretchedness of the criminal and to the interests of truth, so that, by his adducing fresh matter to alter the complexion of the fact, he may justify himself or others in a new trial? Forms and ceremonies are necessary in the administration of justice, because they leave nothing to the free will of the administrator; because they give the people an idea of a justice which is not tumultuary and self-interested, but steadfast and regular; and because men, the slaves of habit and imitation, are more influenced by their feelings than by arguments. But such forms can never without fatal danger be so firmly fixed by the laws as to be injurious to truth, which from being either too simple or two complex needs some external pomp to conciliate the ignorant populace.
      FORE: It does not follow, because the laws do not punish intentions, that therefore a crime begun by some action, significative of the will to complete it, is undeserving of punishment, although it deserves less than a crime actually committed. The importance of preventing an attempt at a crime justifies a punishment; but, as there may be an interval between the attempt and the execution, the reservation of a greater punishment for a consummated crime may present a motive for its non-completion.I conclude with this reflection, that the scale of punishments should be relative to the condition of a nation. On the hardened minds of a people scarcely emerged from the savage state the impressions made should be stronger and more sensible. One needs a[169] thunderbolt for the destruction of a fierce lion that faces round at the shot of a gun. But in proportion as mens minds become softened in the social state, their sensibility increases, and commensurate with that increase should be the diminution of the force of punishment, if it be desired to maintain any proportion between the object and the sensation that attends it. 1 offer applied
      FORE: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. 1 offer applied
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    FORE:But if the custody of the criminal class has been overrated as a preventive of crime, or regarded as the sole preventive instead of one amongst many, it does not follow that crime on that account must be left to itself. It only follows that we should trust to punishment less and to other agencies more in our war with[104] crime, and that we should seek to check the latter at its source, not in its full stream, by attending to the improvement of the general conditions of life. It is quite certain, for instance, that the spread of education, of which Beccaria wrote in terms of such despair, means the diminution of crime; and as the majority of crimes are committed between the ages of twenty and forty, it may be predicted that from the present year onwards the great Act of 1870 will bear increasing fruit in lowering our criminal statistics. More too may be hoped for from the electric light than from any multiplication of prisons.

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    THREE:One thing that might be done, which would also serve at the same time to keep a prisoners family from want, the main source of crime, would be the formation of a Prisoners Fund, for his and their benefit. For this there is a precedent in a quite recent Act. For the Act, which abolished the forfeiture of a felons property, enabled the Crown to appoint an administrator of it, for the benefit of the persons injured by the crime and the felons family, the property itself and its income reverting ultimately to the convict or to his representatives. There could, however, be no objection in justice to the forfeiture of a proportionate part of every felons property, such forfeiture to be dedicated to the formation of a fund, out of which assistance should be given, both to the families of prisoners during their custody and to the prisoners themselves on their discharge.[62] Such a fund might be still further increased by the substitution of a lien on a mans wages or income for many minor offences now punished, but not prevented, by imprisonment.
    FORE:I know that those general principles which tend to enlighten and improve the human race are not absolutely useless that the enlightenment of nations is not without some effect on their rulers provided that the prerogative of the latter, their power, their security, their authority, their safety, is not touched thereby. I know well that this general enlightenment, so much boasted of, is a beautiful and glorious chimera, with which philosophers love to amuse themselves, but which would soon disappear if they would open history, and see therefrom to what causes improved institutions are due. The nations of antiquity have passed, and those of the present will pass, before philosophy and its influence have reformed a single government.
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    THREE:It is not true that the sciences have always been injurious to mankind; when they were so, it was an inevitable evil. The multiplication of the human race over the face of the earth introduced war, the ruder arts, and the first laws, mere temporary agreements which perished with the necessity that gave rise to them. This was mankinds primitive philosophy, the few elements of which were just, because the indolence and slight wisdom of their framers preserved them from error. But with the multiplication of men there went ever a multiplication of their wants. Stronger and more lasting impressions were, therefore, needed, in order to turn them back from repeated lapses to that primitive state of disunion which each return to it rendered worse. Those primitive delusions, therefore, which peopled the earth with false divinities and created an invisible universe that governed our own, conferred a great benefitI mean a great political benefitupon humanity. Those men were benefactors of their kind, who dared to deceive them and drag them, docile and ignorant, to worship at the altars. By presenting to them objects that lay beyond the scope of sense and fled from their grasp the nearer they seemed to approach themnever despised, because never well understoodthey concentrated their divided passions upon a single object[247] of supreme interest to them. These were the first steps of all the nations that formed themselves out of savage tribes; this was the epoch when larger communities were formed, and such was their necessary and perhaps their only bond. I say nothing of that chosen people of God, for whom the most extraordinary miracles and the most signal favours were a substitute for human policy. But as it is the quality of error to fall into infinite subdivisions, so the sciences that grew out of it made of mankind a blind fanatical multitude, which, shut up within a close labyrinth, collides together in such confusion, that some sensitive and philosophical minds have regretted to this day the ancient savage state. That is the first epoch in which the sciences or rather opinions are injurious.
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    There was not an anomaly in our old criminal practice which was not based on this theorya theory which had, indeed, its precedent in the old Hebrew law that punished more severely a theft from a field than a theft from a house; and the first writer who protested against it was Eden, afterwards Lord Auckland, who in 1771 published his Principles of Penal Law, one of the best books ever written on the subject. The influence of Beccaria is apparent in Edens work, not only by his direct reference to it, but by his spirit of declared opposition to the actual practice of the law. Two instances of its tendency will suffice. Imprisonment, inflicted by law as a punishment, is not according to the principles of wise legislation. It sinks useful subjects into burthens on the community, and has always a bad effect on their morals; nor can it communicate the benefit of example, being in its nature secluded from the eye of the people. And again: Whatever exceeds simple death is mere cruelty. Every step beyond is a trace of ancient barbarity, tending only to distract the attention of the spectators and to lessen the solemnity of the example. There is no such thing as vindictive justice; the idea is shocking.That force, similar to the force of gravitation, which constrains us to seek our own well-being, only admits of counteraction in proportion to the obstacles[198] opposed to it. The effects of this force make up the confused series of human actions; if these clash together and impede one another, punishments, which I would call political obstacles, prevent bad effects from resulting, without destroying the impelling cause, which lies in the sensibility inseparable from humanity; and the legislator, in enacting them, acts the part of a clever architect, whose function it is to counteract the tendency of gravitation to cause a building to fall, and to bring to bear all the lines which contribute to its strength.
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