TWO:Another ridiculous reason for torture is the purgation from infamy; that is to say, a man judged infamous by the laws must confirm his testimony by the dislocation of his bones. This abuse ought not to be tolerated in the eighteenth century. It is believed that pain, which is a physical sensation, purges from infamy, which is merely a moral condition. Is pain, then, a crucible, and infamy a mixed impure substance? But infamy is a sentiment, subject neither to laws nor to reason, but to common opinion. Torture itself causes real infamy to the victim of it. So the result is, that by this method infamy will be taken away by the very fact of its infliction!
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TWO: It is not easy in the days of a milder administration of penal laws than a century ago the most sanguine could have dreamed of to do full justice to those who laboured, as Beccaria and his friends did, at the peril of their lives and liberties, for those very immunities which we now enjoy. We cannot conceive that it should ever have been necessary to argue against torture, or that it should have been a bold thing to do so; still less can we conceive that it should ever have had its defenders, or that men should have been contented with the sophism, that it was indeed an evil, but an evil which was necessary and inevitable.What will be the penalty suitable for such and such crimes?
THREE:If it be said that a second conviction makes it necessary for society to protect itself by stronger measures against a member who thus defies its power, it may be asked whether this is not an application of exactly the same reasoning to the crimes of individuals, which as applied to the crimes of all men generally led our ancestors so far astray in the distribution of their punishments. Nothing could have been more plausible than their reasoning: The punishment in vogue does not diminish the crime, therefore increase the punishment. But nothing could have[92] been less satisfactory than the result, for with the increase of punishment that of crime went hand in hand. The same reasoning is equally plausible in the case of individuals, with the same perplexing question resulting in the end: How comes it that, in spite of the threatened greater punishment, the majority of criminals are yet old offenders?
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THREE: Palpable but consecrated abuses, which in many nations are the necessary results of a weak political constitution, are Secret Accusations. For they render men false and reserved, and whoever may suspect that he sees in his neighbour an informer will see in him an enemy. Men then come to mask their real feelings, and by the habit of hiding them from others they at last get to hide them from themselves. Unhappy they who have come to that; who, without clear and fixed principles to guide them, wander lost and confused in the vast sea of opinions, ever busied in saving themselves from the horrors that oppress them, with the present moment ever embittered by the uncertainty of the future, and without the lasting pleasures of quiet and security, devouring in unseemly haste those few pleasures, which occur at rare intervals in their melancholy lives and scarcely console them for the fact of having lived! Is it of such men we can hope to make intrepid soldiers, defenders of their country and crown? Is it among such men we shall find incorrupt magistrates, able with their free and patriotic eloquence to sustain and develop the true interests of their sovereign, ready, with the tribute they bear, to[143] carry to the throne the love and blessings of all classes of men, and thence to bring back to palaces and cottages alike peace and security, and that active hope of ameliorating their lot which is so useful a leaven, nay, which is the life of States?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.
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THREE:But the man who sees in prospect a great number of years, or perhaps the whole of his life, to be passed in servitude and suffering before the eyes of fellow-citizens with whom he is living in freedom and friendship, the slave of those laws which had once protected him, makes a useful comparison of all these circumstances with the uncertain result of his crimes and with the shortness of the time for which he would enjoy their fruits. The ever present example of those whom he actually sees the victims of their own imprudence, impresses him much more strongly than the sight of a punishment which hardens rather than corrects him.
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THREE:Another way to prevent crimes is to reward virtue. On this head I notice a general silence in the laws of all nations to this day. If prizes offered by academies to the discoverers of useful truths have caused the multiplication of knowledge and of good books, why should not virtuous actions also be multiplied, by prizes distributed from the munificence of the sovereign? The money of honour ever remains unexhausted and fruitful in the hands of the legislator who wisely distributes it.
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THREE:What is the best way of preventing crimes?CHAPTER XXIV. THE MEASURE OF PUNISHMENTS.
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TWO:English philosophy and legislation, therefore, owe enough to Beccaria for his treatise never to be forgotten among us. Standing, as it does, in reference to law as Bacons Novum Organon to science, or Descartes Principia to philosophy, and representing a return to first principles and rejection of mere precedent in the matter of penal laws, it will never fail to gratify those who, with little admiration for law in the concrete, can yet find pleasure in studying it in the abstract. Most men will turn readily from a system built up, as our own is, of unintelligible distinctions, and based on authority rather than on experience, to a system where no distinctions exist save those which are derived from the nature of things and are founded on the real differences that distinguish the moral actions of mankind.
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THREE:No inconvenience that may arise from a strict observance of the letter of penal laws is to be compared with the inconveniences of subjecting them to interpretation. The momentary inconvenience in the former case involves, indeed, correcting the words of the law which are the cause of the uncertainty, a task both easy and necessary; but the fatal licence of arguing, the source of so many arbitrary and venal disputes, is thereby prevented. When a fixed code of laws, which must be observed to the letter, leaves to the judge no further trouble than to inquire into the actions of citizens and to decide on their conformity to the written law; when the standard of just and[129] unjust, which should equally direct the actions of the ignorant citizen as of the philosophical one, is not a matter of controversy but of fact; then are people no longer subject to the petty tyrannies of many men, which are all the more cruel by reason of the smaller distance that separates the sufferer from the inflictor of suffering, and which are more pernicious than the tyrannies of a single man, inasmuch as the despotism of many is only curable by that of one, and a despots cruelty is proportioned, not to the power he possesses, but to the obstacles he encounters. Under a fixed code of laws citizens acquire that consciousness of personal security, which is just, because it is the object of social existence, and which is useful, because it enables them to calculate exactly the evil consequences of a misdeed. It is true they will also acquire a spirit of independence, but not such a spirit as will seek to shake the laws and prove rebellious against the chief magistrates, except against such of them as have dared to apply the sacred name of virtue to a spiritless submission to their own self-interested and capricious opinions. These principles will displease those who have assumed the right to transfer to their subordinates the strokes of tyranny they themselves have suffered from their superiors. I personally should have everything to fear, if the spirit of tyranny and the spirit of reading ever went together. A contradiction between the laws and the natural feelings of mankind arises from the oaths which are required of an accused, to the effect that he will be a truthful man when it is his greatest interest to be false; as if a man could really swear to contribute to his own destruction, or as if religion would not be silent with most men when their interest spoke on the other side. The experience of all ages has shown that men have abused religion more than any other of the precious gifts of heaven; and for what reason should criminals respect it, when men esteemed as the wisest have often violated it? Too weak, because too far removed from the senses, are[147] for the mass of people the motives which religion opposes to the tumult of fear and the love of life. The affairs of heaven are conducted by laws absolutely different from those which govern human affairs; so why compromise those by these? Why place men in the terrible dilemma of either sinning against God or concurring in their own ruin? The law, in fact, which enforces such an oath commands a man either to be a bad Christian or to be a martyr. The oath becomes gradually a mere formality, thus destroying the force of religious feelings, which for the majority of men are the only pledge of their honesty. How useless oaths are has been shown by experience, for every judge will bear me out when I say that no oath has ever yet made any criminal speak the truth; and the same thing is shown by reason, which declares all laws to be useless, and consequently injurious, which are opposed to the natural sentiments of man. Such laws incur the same fate as dams placed directly in the main stream of a river: either they are immediately thrown down and overwhelmed, or a whirlpool formed by themselves corrodes and undermines them imperceptibly.
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THREE:There are some crimes which are at the same time of common occurrence and of difficult proof. In them the difficulty of proof is equivalent to a probability of innocence; and the harm of their impunity being so much the less to be considered as their frequency depends on principles other than the risk of punishment, the time for inquiry and the period of prescription ought both to be proportionately less. Yet[161] cases of adultery and pederasty, both of difficult proof, are precisely those in which, according to received principles, tyrannical presumptions of quasi-proofs and half-proofs are allowed to prevail (as if a man could be half-innocent or half-guilty, in other words, half-punishable or half-acquittable); in which torture exercises its cruel sway over the person of the accused, over the witnesses, and even over the whole family of an unfortunate wretch, according to the coldly wicked teaching of some doctors of law, who set themselves up as the rule and standard for judges to follow.
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THREE:CHAPTER XXXV. SUICIDE AND ABSENCE.
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TWO:In these Notes and Observations Beccaria and his work were assailed with that vigour and lucidity for which the Dominican school of writing has always been so conspicuous. The author was described as a man of narrow mind, a madman, a stupid impostor, full of poisonous bitterness and calumnious mordacity. He was accused of writing with sacrilegious imposture against the Inquisition, of believing that religion was incompatible with the good government of a state; nay, he was condemned by all the reasonable world as the enemy of Christianity, a bad philosopher, and a bad man. His book was stigmatised as sprung from the deepest abyss of darkness, horrible, monstrous, full of poison, containing miserable arguments, insolent blasphemies, and so forth.
FORE:
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i = 0;
while (!deck.isInOrder()) {
print 'Iteration ' + i;
deck.shuffle();
i++;
}
print 'It took ' + i + ' iterations to sort the deck.';
FORE:Less dangerous personally than the theological criticism, but more pernicious to reform, was the hostile criticism that at once appeared from the thick phalanx of professional lawyers, the sound-thinking practical men. From whom only two short extracts need be rescued from oblivion, as illustrations of the objections once raised against ideas which have since become the common groundwork of all subsequent legislation, in America as well as in Europe. The first extract is from a work on criminal justice by a lawyer of Provence, who in 1770 wrote as follows:
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FORE:CHAPTER IV. INTERPRETATION OF THE LAWS.
FORE: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.
FORE:The chief honour of the earliest attempt at law reform belongs to Sir William Meredith, who in 1770 moved for a committee of inquiry into the state of the criminal laws. This committee proposed in its report of the following year the repeal of a few Acts which made certain offences capital; and accordingly the Commons in 1772 agreed, that it should no longer be punishable as high treason to make an attempt on the life of a Privy Councillor, that desertion of officers or soldiers should no longer be capital, nor the belonging to people who called themselves Egyptians. Some other proposals were negatived, such as a repeal of the hard law of James I. against infanticide; but the House of Lords refused their assent even to the slight changes passed by the Commons. It was an innovation, they said, and subversion of the law.[34][53] It is no reproach to Meredith, Burke, and Fox that they ceased to waste their strength against Conservatism such as this. All hope of reform was out of the question; and the most dreadful atrocities were suffered or defended. In 1777 a girl of 14 lay in Newgate under sentence to be burnt alive for false coinage, because some whitewashed farthings, that were to pass for sixpences, were found on her person; and a reprieve only came just as the cart was ready to take her to the stake. Not till 1790 was the law abolished by which women were liable to be burnt publicly for high or petit treason.[35]
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If it be said that a second conviction makes it necessary for society to protect itself by stronger measures against a member who thus defies its power, it may be asked whether this is not an application of exactly the same reasoning to the crimes of individuals, which as applied to the crimes of all men generally led our ancestors so far astray in the distribution of their punishments. Nothing could have been more plausible than their reasoning: The punishment in vogue does not diminish the crime, therefore increase the punishment. But nothing could have[92] been less satisfactory than the result, for with the increase of punishment that of crime went hand in hand. The same reasoning is equally plausible in the case of individuals, with the same perplexing question resulting in the end: How comes it that, in spite of the threatened greater punishment, the majority of criminals are yet old offenders?Had I to address nations still destitute of the light of religion, I would say that there is yet another considerable difference between adultery and other crimes. For it springs from the abuse of a constant and universal human impulse, an impulse anterior to, nay, the cause of the institution of society; whereas other crimes, destructive of society, derive their origin rather from momentary passions than from a natural impulse. To anyone cognisant of history and his kind, such an impulse will seem to be equivalent in the same climate to a constant quantity; and if this be so, those laws and customs which seek to diminish the sum-total will be useless or dangerous, because their effect will be to burthen one half of humanity with its own needs and those of others; but those laws, on the contrary, will be the wisest, which following, so to speak, the gentle inclination of the plain, divide the total amount, causing it to ramify into so many equal and small portions, that aridity or overflowing are equally prevented everywhere. Conjugal fidelity is always proportioned to the number and to the freedom of marriages. Where marriages are governed by hereditary prejudices, or[229] bound or loosened by parental power, there the chains are broken by secret intrigue, in despite of ordinary morality, which, whilst conniving at the causes of the offence, makes it its duty to declaim against the results. But there is no need of such reflections for the man who, living in the light of true religion, has higher motives to correct the force of natural effects. Such a crime is of so instantaneous and secret commission, so concealed by the very veil the laws have drawn round it (a veil necessary, indeed, but fragile, and one that enhances, instead of diminishing, the value of the desired object), the occasions for it are so easy, and the consequences so doubtful, that the legislator has it more in his power to prevent than to punish it. As a general rule, in every crime which by its nature must most frequently go unpunished, the penalty attached to it becomes an incentive. It is a quality of our imagination, that difficulties, if they are not insurmountable nor too difficult, relatively to the mental energy of the particular person, excite the imagination more vividly, and place the object desired in larger perspective; for they serve as it were as so many barriers to prevent an erratic and flighty fancy from quitting hold of its object; and, while they compel the imagination to consider the latter in all its bearings, it attaches itself more closely to the pleasant[230] side, to which our mind most naturally inclines, than to the painful side, which it places at a distance.That the punishments of long custody by which we[103] now defend our lives and properties are out of all proportion to the real needs of social existence is indicated by such a fact as that no increase of crime used to attend the periodical release of prisoners which was for long, if it is not still, customary in Russia at the beginning of each reign. Neither in India, when on the Queens assumption of the title of Empress, a pardon was granted to about one-tenth of the prison population, did any increase of crime ensue, as, according to all criminal reasoning, it should have done, if the safety of society depends on the custody of the criminal class.[60] In Sweden a low rate of crime seems to be a direct consequence of a low scale of punishment. Of those condemned to travaux forcs, which may vary from a period of two months to a period for life, 64 per cent. are condemned for one year, and only 3 per cent. are condemned for seven years;[61] whilst sentences to the latter period in England form between 50 and 60 per cent. of the sentences to penal servitude.
THREE:If it be said that a second conviction makes it necessary for society to protect itself by stronger measures against a member who thus defies its power, it may be asked whether this is not an application of exactly the same reasoning to the crimes of individuals, which as applied to the crimes of all men generally led our ancestors so far astray in the distribution of their punishments. Nothing could have been more plausible than their reasoning: The punishment in vogue does not diminish the crime, therefore increase the punishment. But nothing could have[92] been less satisfactory than the result, for with the increase of punishment that of crime went hand in hand. The same reasoning is equally plausible in the case of individuals, with the same perplexing question resulting in the end: How comes it that, in spite of the threatened greater punishment, the majority of criminals are yet old offenders?
