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This infamous crucible of truth is a still-existing monument of that primitive and savage legal system, which called trials by fire and boiling water, or the accidental decisions of combat, judgments of God, as if the rings of the eternal chain in the control of the First Cause must at every moment be disarranged and put out for the petty institutions of mankind. The only difference between torture and the trial by fire and water is, that the result of the former seems to depend on the will of the accused, and that of the other two on a fact which is purely physical and extrinsic to the sufferer; but the difference is only apparent, not real. The avowal of truth under tortures and agonies is as little free as was in those times the prevention without fraud of the usual effects of fire and boiling water. Every act of our will is ever proportioned to the force of the sensible impression which causes it, and the sensibility of every man is limited. Hence the impression produced by pain may be so intense as to occupy a mans entire sensibility and leave him no other liberty than the choice of the shortest way of escape, for the present moment, from his penalty. Under such circumstances the answer of the accused is as[151] inevitable as the impressions produced by fire and water; and the innocent man who is sensitive will declare himself guilty, when by so doing he hopes to bring his agonies to an end. All the difference between guilt and innocence is lost by virtue of the very means which they profess to employ for its discovery.CHAPTER VIII. WITNESSES.

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TWO:

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ONE:These are some of the difficulties of the subject, which teach us the necessity of constant open-mindedness with regard to all ideas or practices connected with criminal law. But, would we further examine our established notions, we should consider a statement from Hobbes which goes to the very root of the theory of punishment.

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ONE: Whosoever disturbs the public peace, or obeys not the laws, that is, the conditions under which men bear with and defend one another, ought to be excluded from society, that is, to be banished from it.CHAPTER XXXII. OF DEBTORS.

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ONE:The result, then, of torture is a matter of temperament, of calculation, which varies with each man according[152] to his strength and sensibility; so that by this method a mathematician might solve better than a judge this problem: Given the muscular force and the nervous sensibility of an innocent man, to find the degree of pain which will cause him to plead guilty to a given crime.Sir James Mackintosh, who succeeded Romilly as law reformer, in 1820 introduced with success six penal reform bills into the House of Commons; but the Lords assented to none of them that were of any practical importance to the country. They agreed, indeed, that it should no longer be a capital offence for an Egyptian to reside one year in the country, or for a man to be found disguised in the Mint, or to injure Westminster Bridge; but they did not agree to remove the capital penalty for such offences as wounding cattle, destroying trees, breaking down the banks of rivers, or sending threatening letters. It was feared that if the punishment were mitigated, the whole of Lincolnshire might be submerged, whole forests cut down, and whole herds destroyed. As to the Shoplifting Bill, they would not let death be abolished for stealing in shops altogether, but only where the value of the theft was under 10l. That seemed the limit of safe concession.

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ONE:2. When the proofs of a fact all depend equally on a single one, their number neither increases nor diminishes the probability of the fact in question, because their total value resolves itself into that of the single one on which they depend.The death of a citizen can only be deemed necessary for two reasons. The first is when, though deprived of his personal freedom, he has still such connections and power as threaten the national security; when his existence is capable of producing a dangerous revolution in the established form of government. The death of a citizen becomes then necessary when the nation is recovering or losing its liberty, or in a time of anarchy, when confusion takes the place of laws; but in times when the laws hold undisturbed sway, when the form of government corresponds with the wishes of a united nation, and is defended internally and externally by force, and by opinion which is perhaps even stronger than force, where the supreme power rests only with the real sovereign, and riches serve to purchase pleasures but not places, I see no necessity for destroying a citizen, except when his death might be the real and only restraint for diverting others from committing crimes; this latter[171] case constituting the second reason for which one may believe capital punishment to be both just and necessary.

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ONE:Who, then, will be the rightful interpreter of the laws? Will it be the sovereign, the trustee of the actual wills of all, or the judge, whose sole function[127] it is to examine whether such and such a man has committed an illegal act or not?But whether the international extradition of criminals be useful I would not venture to decide, until laws more in conformity with the needs of humanity, until milder penalties, and until the emancipation of law from the caprice of mere opinion, shall have given[194] security to oppressed innocence and hated virtue; until tyranny shall have been confined, by the force of universal reason which ever more and more unites the interests of kings and subjects, to the vast plains of Asia; however much the conviction of finding nowhere a span of earth where real crimes were pardoned might be the most efficacious way of preventing their occurrence.

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ONE:The close connection, therefore, of crime and punishment is of the utmost importance, if it be desirable that in rough and common minds there should, together with the seductive idea of an advantageous crime, immediately start up the associated idea of its punishment. Long delay has no other effect than the perpetual separation of these two ideas; and whatever the impression produced by the punishment of a crime, it produces it less as a punishment than as a sight, and only produces it when the horror of the particular crime, which would serve to strengthen the feeling of the punishment, has been weakened in the minds of the spectators.

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ONE:Of all the attacks which the publication of the Dei Delitti provoked, the bitterest came naturally from a theological pen. At the very time that Beccarias work appeared, the Republic of Venice was occupied in a violent contest touching the Inquisitorial Council of Ten; and imagining that Beccarias remarks about secret accusations had been directed against the procedure of their famous[16] tribunal, whilst they attributed the work to a Venetian nobleman called Quirini, they forbade its circulation under pain of death. It was on their behalf and with this belief that the Dominican Padre, Facchinei, took up his pen and wrote a book, entitled, Notes and Observations on the Dei Delitti, in which he argued, among other things, not only that secret accusations were the best, cheapest, and most effective method of carrying out justice, but that torture was a kind of mercy to a criminal, purging him in his death from the sin of falsehood.
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THREE:
Capital punishment is injurious by the example of barbarity it presents. If human passions, or the necessities of war, have taught men to shed one anothers blood, the laws, which are intended to moderate human conduct, ought not to extend the savage example, which in the case of a legal execution is all the more baneful in that it is carried out with studied formalities. To me it seems an absurdity, that the laws, which are the expression of the public will, which abhor and which punish murder, should themselves[177] commit one; and that, to deter citizens from private assassination, they should themselves order a public murder. What are the true and the most useful laws? Are they not those covenants and conditions which all would wish observed and proposed, when the incessant voice of private interest is hushed or is united with the interest of the public? What are every mans feelings about capital punishment? Let us read them in the gestures of indignation and scorn with which everyone looks upon the executioner, who is, after all, an innocent administrator of the public will, a good citizen contributory to the public welfare, an instrument as necessary for the internal security of a State as brave soldiers are for its external. What, then, is the source of this contradiction; and why is this feeling, in spite of reason, ineradicable in mankind? Because men in their most secret hearts, that part of them which more than any other still preserves the original form of their first nature, have ever believed that their lives lie at no ones disposal, save in that of necessity alone, which, with its iron sceptre, rules the universe.In methods of trial the use of torture is contrary to sound reason. Humanity cries out against the practice and insists on its abolition.CHAPTER XI. OATHS.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.
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