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CHAPTER II. THE ORIGIN OF PUNISHMENTSTHE RIGHT OF PUNISHMENT. There was a time when nearly all penalties were pecuniary. Mens crimes were the princes patrimony; attempts against the public safety were an object of gain, and he whose function it was to defend it found his interest in seeing it assailed. The object of punishment was then a suit between the treasury, which exacted the penalty, and the criminal: it was a civil business, a private rather than a public dispute, which conferred upon the treasury other rights than those conferred upon it by the calls of the public defence, whilst it inflicted upon the offender other grievances than those he had incurred by the necessity of example. The judge was, therefore, an advocate for the treasury rather than an impartial investigator of the truth, an agent for the Chancellor of the Exchequer rather than the protector and minister of the laws. But as in this system to confess a fault was the same thing as to confess oneself a debtor to the treasury, that being the object of the criminal procedure in those days, so the confession of a crime, and a confession so managed as to favour and not to hurt fiscal interests, became and still remains (effects always outlasting their causes so long) the centre[241] point of all criminal procedure. Without such confession a criminal convicted by indubitable proofs will incur a penalty less than the one legally attached to his crime; and without it he will escape torture for other crimes of the same sort which he may have committed. With it, on the other hand, the judge becomes master of a criminals person, to lacerate him by method and formality, in order to get from him as from so much stock all the profit he can. Given the fact of the crime as proved, confession affords a convincing proof; and, to make this proof still less open to doubt, it is forcibly exacted by the agonies and despair of physical pain; whilst at the same time a confession that is extra-judicial, that is tendered calmly and indifferently, and without the overpowering fears of a trial by torture, is held insufficient for a verdict of guilt. Inquiries and proofs, which throw light upon the fact, but which weaken the claims of the treasury, are excluded; nor is it out of consideration for his wretchedness and weakness that a criminal is sometimes spared from torture, but out of regard for the claims which this entity, now mythical and inconceivable, might lose. The judge becomes the enemy of the accused, who stands in chains before him, the prey of misery, of torments, and the most terrible future; he does not seek to find the truth of a fact, but to find the crime in the prisoner, trying to entrap him, and thinking it to the loss of his own[242] credit if he fail to do so, and to the detriment of that infallibility which men pretend to possess about everything. The evidence that justifies a mans imprisonment rests with the judge; in order that a man may prove himself innocent, he must first be declared guilty: that is called an offensive prosecution; and such are criminal proceedings in nearly every part of enlightened Europe, in the eighteenth century. The real prosecution, the informative onethat is, the indifferent inquiry into a fact, such as reason enjoins, such as military codes employ, and such as is used even by Asiatic despotism in trivial and unimportant casesis of very scant use in the tribunals of Europe. What a complex maze of strange absurdities, doubtless incredible to a more fortunate posterity! Only the philosophers of that time will read in the nature of man the possible actuality of such a system as now exists.
Slider 1 ONE:Men of letters as a rule did not speak with this boldness, but in conscious opposition to professional and popular feeling expressed their doubts with a hesitation that was almost apologetic. So, for example,[50] Goldsmith could not avoid even questioning the validity of that right which social combinations have assumed of capitally punishing offences of a slight nature.[31] Strange, that in England such an argument should ever have seemed a daring novelty, a thing to be said tentatively and with reserve!

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Slider 1 ONE:Hence both in the state of extreme political liberty and in that of extreme political subjection the ideas of honour disappear or get perfectly confused with others. For in the former the despotism of the laws renders the pursuit of the favour of others of no avail; and in the latter state the despotism of men, by destroying civil existence, reduces everybody to a precarious and temporary personality. Honour, therefore, is one of the fundamental principles of those monarchies that are a mitigated form of despotism, being to them what revolutions are to despotic States, namely, a momentary return to the state of nature, and a reminder to the chief ruler of the condition of primitive equality.

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Slider 2 ONE: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.

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Slider 1 ONE:CHAPTER XXXIV. OF POLITICAL IDLENESS.Would you prevent crimes, contrive that the laws favour less different orders of citizens than each citizen in particular. Let men fear the laws and nothing but the laws. Would you prevent crimes, provide that reason and knowledge be more and more diffused. To conclude: the surest but most difficult method of making men better is by perfecting education.[20]

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Slider 3 ONE: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.

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ONE:But punishment bears much the same relation to crime in the country at large that it does in the metropolis. Let one year be taken as a fair sample of all. The total number of indictable offences of all kinds reported to the police in 1877-8 was 54,065. For these offences only 24,062 persons were apprehended. Of these latter only 16,820 were held to bail or committed for trial; and of these again 12,473 were convicted and punished.[52] So that, though the proportion of convictions to the number of prisoners who come to trial is about 75 per cent., the proportion of convictions, that is, of punishments, to the number of crimes committed is so low as 23 per cent. Of the 54,065 crimes reported to the police in one year 41,592 were actually committed with impunity; and[95] thus the proportion which successful crime of all sorts bears to unsuccessful is rather more than as four to one.[53] So that there is evident truth in what a good authority has said: Few offences comparatively are followed by detection and punishment, and with a moderate degree of cunning an offender may generally go on for a long time with but feeble checks, if not complete impunity.[54]CHAPTER XLI. THE PREVENTION OF CRIMESOF KNOWLEDGEMAGISTRATESREWARDSEDUCATION.

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THREE:But why does this crime never entail disgrace upon its author, seeing that it is a theft against the prince, and consequently against the nation? I answer, that offences which men do not consider can be committed against themselves do not interest them enough to produce public indignation against their perpetrator. Smuggling is an offence of this character. Men in general, on whom remote consequences make very feeble impressions, do not perceive the harm that smuggling can do them, nay, often they enjoy a present advantage from it. They only perceive the injury done to the sovereign; they are not interested, therefore, in withdrawing their favour from a smuggler as much as they are in doing so from a man who commits a theft in private life, who forges a signature, or brings upon them other evils. The principle is self-evident, that every sensitive being only interests himself in the evils which he knows. This crime arises from the law itself; since the benefit it promises increases with the increase of the import duty, and therefore the temptation and the facility of committing it increases with the circumference of territory to be guarded and the small size of the prohibited wares. The penalty of losing both the prohibited goods, and whatever effects are found with them, is most just; but its efficacy will be greater in proportion as the import duty is lower, because men only incur risks relative to the advantage derivable from the prosperous issue of their undertaking.

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THREE:So signal a success in France was a sufficient guarantee of success elsewhere. A knowledge of the book must have speedily crossed the Channel, for Blackstone quoted it the very year after its publication. It was first translated into English in 1768, together with Voltaires commentary; but just as Morellets translation professed to have been published at Philadelphia, so the English translator kept his name a secret. The Economical Society of Berne, which was accustomed to bestow a gold medal on the writer of the best treatise on any given subject, violated its own rules in favour of the anonymous writer of the Delitti, inviting him to disclose his name, and to accept the gold medal as a sign of esteem due to a citizen who had dared to raise his voice in favour of humanity against the most deeply engrained prejudices.

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THREE: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.

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THREE:The question, therefore, arises, Does crime depend to any appreciable extent on imprisonment at all, or on the length or shortness of sentences?

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THREE:We shall see, if we open histories, that laws, which[118] are or ought to be covenants between free men, have generally been nothing but the instrument of the passions of some few men, or the result of some accidental and temporary necessity. They have never been dictated by an unimpassioned student of human nature, able to concentrate the actions of a multitude of men to a single point of view, and to consider them from that point alonethe greatest happiness divided among the greatest number. Happy are those few nations which have not waited for the slow movement of human combinations and changes to cause an approach to better things, after intolerable evils, but have hastened the intermediate steps by good laws; and deserving is that philosopher of the gratitude of mankind, who had the courage, from the obscurity of his despised study, to scatter abroad among the people the first seeds, so long fruitless, of useful truths.In proportion as punishments become milder, clemency and pardon become less necessary. Happy the nation in which their exercise should be baneful! Clemency, therefore, that virtue, which has sometimes made up in a sovereign for failings in all the other duties of the throne, ought to be excluded in a perfect system of legislation, where punishments are mild and the method of trial regular and expeditious. This truth will appear a hard one to anybody living in the present chaotic state of the criminal law, where the necessity of pardon and favours accords with the absurdity of the laws and with the severity of sentences of punishment. This right of pardon is indeed the fairest prerogative of the throne, the most desirable attribute of sovereignty; it is, however, the tacit mark of disapproval that the beneficent dispensers of the public happiness exhibit towards a code, which with all its imperfections claims in its favour the prejudice of ages, the voluminous and imposing array of innumerable commentators, the weighty apparatus of unending formalities, and the adhesion of those persons of half-learning who, though less feared than real philosophers, are really more dangerous. But let it be remembered that clemency is the virtue of[191] the maker, not of the executor, of the laws; that it should be conspicuous in the code of laws rather than in particular judgments; that the showing to men, that crimes may be pardoned and that punishment is not their necessary consequence, encourages the hope of impunity, and creates the belief that sentences of condemnation, which might be remitted and are not, are rather violent exhibitions of force than emanations of justice. What shall be said then when the sovereign grants a pardon, that is, public immunity to an individual, and when a private act of unenlightened kindness constitutes a public decree of impunity? Let the laws therefore be inexorable and their administrators in particular cases inexorable, but let the law-maker be mild, merciful, and humane. Let him found his edifice, as a wise architect, on the basis of self-love; let the general interest be the sum of the interests of each, and he will no longer be constrained, by partial laws and violent remedies to separate at every moment the public welfare from that of individuals, and to raise the appearance of public security on fear and mistrust. As a profound and feeling philosopher let him allow men, that is, his brethren, to enjoy in peace that small share of happiness which is given them to enjoy in this corner of the universe, in that immense system established by the First Cause, by Him Who Is.

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ONE:Finally, a man who, when examined, persists in an obstinate refusal to answer, deserves a punishment[146] fixed by the laws, and one of the heaviest they can inflict, that men may not in this way escape the necessary example they owe to the public. But this punishment is not necessary when it is beyond all doubt that such a person has committed such a crime, questions being useless, in the same way that confession is, when other proofs sufficiently demonstrate guilt And this last case is the most usual, for experience proves that in the majority of trials the accused are wont to plead Not guilty.

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THREE:If pleasure and pain are the motors of sensitive beings, if the invisible lawgiver of humanity has decreed rewards and punishments as one of the motives to impel men to even their noblest endeavours, the inexact distribution of these motives will give rise to that contradiction, as little noticed as it is of common occurrence, namely, that the laws punish crimes which are entirely of their own creation. If an equal penalty is attached to two crimes of unequal injury to society, the greater crime of the two, if it promise a greater advantage than the other, will have no stronger motive in restraint of its perpetration.[197] Whoever, for example, sees the same punishment of death decreed for the man who kills a pheasant and the man who slays his fellow or falsifies an important document, will draw no distinction between such crimes; and thus moral sentiments, the product only of many ages and of much bloodshed, the slowest and most difficult attainment of the human mind, dependent, it has been thought, on the aid of the most sublime motives and on a parade of the gravest formalities, will be destroyed and lost.

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THREE:In the ordinary state of society the death of a citizen is neither useful nor necessary.

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THREE:But the honour of having been the first country to lay aside the use of torture undoubtedly belongs to England, just as the honour of having been the first in modern times to abolish capital punishment, except for political offences, belongs to Russia; and the practical example thus afforded by our laws probably did more for the general abolition of the custom than any written treatise on the subject ever would have done alone. English and foreign jurists long delighted to honour the Common Law for its non-recognition of torture. But though torture was contrary to the Common Law, and even to Magna Charta, it was not contrary to Prerogative; and until the Commonwealth it was used as matter of course in all grave accusations at the mere discretion of the monarch and Privy Council.[19] Therefore Beccaria pointed to England as a country which did not use torture with more justice than Grotius had done, who, when the rack was still in use amongst us, quoted England as a proof that people might safely live without torture.

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THREE:In a period of ten years, from 1867 to 1876, the total number of principal indictable offences committed in the metropolis against propertyand these constitute the great majority of crimeswere 117,345. But the apprehensions for these offences were only 26,426, the convictions only 19,242. In other words,[94] the chances against apprehension for such crimes as burglary or larceny are four to one in favour of the criminal, whilst the chances against his conviction and punishment are fully as high as six to one. When we thus find that only 16 per cent. of such crimes receive any punishment, the remaining 84 per cent. escaping it altogether, and that only 22 per cent. are even followed by apprehension, we shall the more admire the general efficacy of our criminal machinery, in which prevention by punishment plays so small a part.[51]It would appear at first sight that there could be[71] little to say about crimes and punishments, so obvious and self-evident seem the relations that exist between them. Many people still believe in an innate sense of justice in mankind, sufficient always to prevent wide aberrations from equity. Is it, they might ask, conceivable that men should ever lose sight of the distinction between the punishment of guilt and the punishment of innocence?that they should ever punish one equally with the other? Yet there is no country in the world which in its past or present history has not involved the relations of a criminal in the punishment inflicted on him; and in savage countries generally it is still common to satisfy justice with vengeance on some blood-relation of a malefactor who escapes from the punishment due to his crime.

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ONE: A cruelty consecrated among most nations by custom is the torture of the accused during his trial, on the pretext of compelling him to confess his crime, of clearing up contradictions in his statements, of discovering his accomplices, of purging him in some metaphysical and incomprehensible way from infamy, or finally of finding out other crimes of which he may possibly be guilty, but of which he is not accused.CHAPTER X. SUGGESTIVE INTERROGATIONSDEPOSITIONS.

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TWO:

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TWO:Would you prevent crimes, then cause the laws to be clear and simple, bring the whole force of a nation to bear on their defence, and suffer no part of it to be busied in overthrowing them. Make the laws to favour not so much classes of men as men themselves. Cause men to fear the laws and the laws alone. Salutary is the fear of the law, but fatal and fertile in crime is the fear of one man of another. Men as slaves are more sensual, more immoral, more cruel than free men; and, whilst the latter give their minds to the sciences or to the interests of their country, setting great objects before them as their model, the former, contented with the passing day, seek in the excitement of libertinage a distraction from the nothingness of their existence, and, accustomed to an uncertainty of result in everything, they look upon the result of their crimes as uncertain too, and so decide in favour of the passion that tempts them. If uncertainty of the laws affects a nation, rendered indolent by its climate, its indolence and stupidity is thereby maintained and increased; if it affects a nation, which though fond of pleasure is also full of energy, it wastes that energy in a number of petty cabals and intrigues, which spread distrust in every heart, and make treachery and dissimulation the foundation of prudence; if, again, it affects a[245] courageous and brave nation, the uncertainty is ultimately destroyed, after many oscillations from liberty to servitude, and from servitude back again to liberty.

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TWO:Your letter has raised in me sentiments of the deepest esteem, of the greatest gratitude, and the most tender friendship; nor can I confess to you how honoured I feel at seeing my work translated into the language of a nation which is the mistress and illuminator of Europe. I owe everything to French books. They first raised in my mind feelings of humanity which had been suffocated by eight years of a fanatical education. I cannot express to you the pleasure with which I have read your translation; you have embellished[5] the original, and your arrangement seems more natural than, and preferable to, my own. You had no need to fear offending the authors vanity: in the first place, because a book that treats of the cause of humanity belongs, when once published, to the world and all nations equally; and as to myself in particular, I should have made little progress in the philosophy of the heart, which I place above that of the intellect, had I not acquired the courage to see and love the truth. I hope that the fifth edition, which will appear shortly, will be soon exhausted, and I assure you that in the sixth I will follow entirely, or nearly so, the arrangement of your translation, which places the truth in a better light than I have sought to place it in.CHAPTER XVII. BANISHMENT AND CONFISCATIONS.

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CHAPTER II. THE ORIGIN OF PUNISHMENTSTHE RIGHT OF PUNISHMENT. There was a time when nearly all penalties were pecuniary. Mens crimes were the princes patrimony; attempts against the public safety were an object of gain, and he whose function it was to defend it found his interest in seeing it assailed. The object of punishment was then a suit between the treasury, which exacted the penalty, and the criminal: it was a civil business, a private rather than a public dispute, which conferred upon the treasury other rights than those conferred upon it by the calls of the public defence, whilst it inflicted upon the offender other grievances than those he had incurred by the necessity of example. The judge was, therefore, an advocate for the treasury rather than an impartial investigator of the truth, an agent for the Chancellor of the Exchequer rather than the protector and minister of the laws. But as in this system to confess a fault was the same thing as to confess oneself a debtor to the treasury, that being the object of the criminal procedure in those days, so the confession of a crime, and a confession so managed as to favour and not to hurt fiscal interests, became and still remains (effects always outlasting their causes so long) the centre[241] point of all criminal procedure. Without such confession a criminal convicted by indubitable proofs will incur a penalty less than the one legally attached to his crime; and without it he will escape torture for other crimes of the same sort which he may have committed. With it, on the other hand, the judge becomes master of a criminals person, to lacerate him by method and formality, in order to get from him as from so much stock all the profit he can. Given the fact of the crime as proved, confession affords a convincing proof; and, to make this proof still less open to doubt, it is forcibly exacted by the agonies and despair of physical pain; whilst at the same time a confession that is extra-judicial, that is tendered calmly and indifferently, and without the overpowering fears of a trial by torture, is held insufficient for a verdict of guilt. Inquiries and proofs, which throw light upon the fact, but which weaken the claims of the treasury, are excluded; nor is it out of consideration for his wretchedness and weakness that a criminal is sometimes spared from torture, but out of regard for the claims which this entity, now mythical and inconceivable, might lose. The judge becomes the enemy of the accused, who stands in chains before him, the prey of misery, of torments, and the most terrible future; he does not seek to find the truth of a fact, but to find the crime in the prisoner, trying to entrap him, and thinking it to the loss of his own[242] credit if he fail to do so, and to the detriment of that infallibility which men pretend to possess about everything. The evidence that justifies a mans imprisonment rests with the judge; in order that a man may prove himself innocent, he must first be declared guilty: that is called an offensive prosecution; and such are criminal proceedings in nearly every part of enlightened Europe, in the eighteenth century. The real prosecution, the informative onethat is, the indifferent inquiry into a fact, such as reason enjoins, such as military codes employ, and such as is used even by Asiatic despotism in trivial and unimportant casesis of very scant use in the tribunals of Europe. What a complex maze of strange absurdities, doubtless incredible to a more fortunate posterity! Only the philosophers of that time will read in the nature of man the possible actuality of such a system as now exists.

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CHAPTER XLII. CONCLUSION.It has already been remarked by Montesquieu that public accusations are more suited to republics, where the public good ought to be the citizens first passion, than to monarchies, where such a sentiment is very feeble, owing to the nature of the government itself, and where the appointment of officers to accuse transgressors of the law in the name of the public is a most excellent institution. But every government, be it republican or monarchical, ought to inflict upon a false accuser the same punishment which, had the accusation been true, would have fallen upon the accused. A cruelty consecrated among most nations by custom is the torture of the accused during his trial, on the pretext of compelling him to confess his crime, of clearing up contradictions in his statements, of discovering his accomplices, of purging him in some metaphysical and incomprehensible way from infamy, or finally of finding out other crimes of which he may possibly be guilty, but of which he is not accused.Two other fatal consequences flow from the cruelty of punishments, and are contrary to their very purpose, the prevention of crimes. The first is, that it is not so easy to preserve the essential proportion between crime and punishment, because, however much a studied cruelty may diversify its forms, none of them can go beyond the extreme limit of endurance which is a condition of the human organisation and sensibility. When once this extreme limit is attained, it would be impossible to invent such a corresponding increase of punishment for still more injurious and atrocious crimes as would be necessary to prevent them. The other consequence is, that impunity itself arises from the severity of punishments. Men are restrained within limits both in good and evil; and a sight too atrocious for humanity can only be a passing rage, not a constant system, such as the laws ought to be; if the latter are really cruel, either they are changed, or themselves give rise to a fatal impunity.
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