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CHAPTER XIV. CRIMINAL ATTEMPTS, ACCOMPLICES, IMPUNITY.

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It is the specific crime, not the fact that it is a second or third felony, which is injurious. Neither a community nor an individual suffer more from the commission of a crime by a man who commits it for the second time than from its commission by a man who has never committed it before. If two brothers are each robbed of a pound apiece on two several occasions, the one who is robbed each time by the same criminal suffers no more than the one who is robbed each time by different criminals. Still less is the public more injured in one case than in the other. Therefore the former brother is entitled for his second loss to no more restitution than the other, nor has any more claim on society for the infliction of a severer punishment on his behalf than that inflicted for the second loss of his brother.That Penology is still only in its experimental stage as a science, in spite of the progress it has made in recent times, is clear from the changes that are so constantly being made in every department of our penal system. We no longer mutilate nor kill our criminals, as our ancestors did in the plenitude of their wisdom; we have ceased to transport them, and our only study now is to teach them useful trades and laborious industry. Yet whether we shall better bring them to love labour by compulsory idleness or by compulsory work, whether short imprisonment or long is the most effective discipline, whether seclusion or association is least likely to demoralise them, these and similar questions have their answers in a quicksand of uncertainty. This only may experience be said to have yet definitely proved, that very little relation exists in any country between the given quantity of crime and the quantity or severity of punishment directed to its prevention. It has taken thousands of years to establish this truth, and even yet it is but partially recognised over the world.
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ONE:It may be said that all such absurdities are past; that the Jews, the Athenians, the Chinese, the Europeans of the middle ages can scarcely be cited as reasonable beings; that they had no rational theory of punishment, and that their errors have been long since discarded. But at least their example suggests that even in our own system there may be inconsistencies and blemishes which custom and authority hide from our eyes.[27] TWO: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.THREE:My occupation is to cultivate philosophy in peace, and so to satisfy my three strongest passions, the love, that is, of literary fame, the love of liberty, and pity for the ills of mankind, slaves of so many errors. My conversion to philosophy only dates back five years, and I owe it to my perusal of the Lettres Persanes. The second work that completed my mental revolution was that of Helvetius. The latter forced me irresistibly into the way of truth, and aroused my attention for the first time to the blindness and miseries of humanity.
FORE:CHAPTER IX. SECRET ACCUSATIONS.

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FORE:Some crimes are injuries to a mans person, others to his property, and the former should certainly be punished by corporal punishments.

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FORE:

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FORE: Our laws prohibit suggestive (leading) questions in a lawsuit: those, that is (according to the doctors of law), which, instead of applying, as they should do,[145] to the genus in the circumstances of a crime, refer to the species; those, in other words, which from their immediate connection with a crime suggest to the accused a direct answer. Questions, according to the criminal lawyers, ought, so to speak, to envelop the main fact spirally and never to attack it in a direct line. The reasons for this method are, either that an answer may not be suggested to the accused which may place him face to face with the charge against him, or perhaps because it seems unnatural for him directly to criminate himself. But, whichever of these reasons it may be, the contradiction is remarkable between the existence of such a custom and the legal authorisation of torture; for what interrogatory can be more suggestive than pain? The former reason applies to the question of torture, because pain will suggest to a strong man obstinate silence, in order that he may exchange the greater penalty for the lesser, whilst it will suggest to a weak man confession, in order that he may escape from present torment, which has more influence over him than pain which is to come. The other reason evidently applies too, for if a special question leads a man to confess against natural right, the agonies of torture will more easily do the same. But men are more governed by the difference of names than by that of things.The lighting of a city by night at the public expense; the distribution of guards in the different quarters; simple moral discourses on religion, but only in the silent and holy quiet of churches, protected by public authority; speeches on behalf of private and public interests in national assemblies, parliaments, or wherever else the majesty of sovereignty residesall these are efficacious means for preventing the dangerous condensation of popular passions. These means are a principal branch of that magisterial vigilance which the French call police; but if this is exercised by arbitrary laws, not laid down in a code of general circulation, a door is opened to tyranny,[221] which ever surrounds all the boundaries of political liberty. I find no exception to this general axiom, that Every citizen ought to know when his actions are guilty or innocent. If censors, and arbitrary magistrates in general, are necessary in any government, it is due to the weakness of its constitution, and is foreign to the nature of a well organised government. More victims have been sacrificed to obscure tyranny by the uncertainty of their lot than by public and formal cruelty, for the latter revolts mens minds more than it abases them. The true tyrant always begins by mastering opinion, the precursor of courage; for the latter can only show itself in the clear light of truth, in the fire of passion, or in ignorance of danger.

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FORE:CHAPTER XXX. THEFTS.Six days after his arrival Beccaria writes in a similar strain: that he is in the midst of adorations and the most flattering praises, considered as the companion and colleague of the greatest men in Europe, regarded with admiration and curiosity, his company competed for; in the capital of pleasures, close to three theatres, one of them the Comdie Fran?aise, the most interesting spectacle in the world; and that yet he is unhappy and discontented, and unable to find distraction in anything. He tells his wife that he is in excellent health, but that she must say just the contrary, in order that there may be a good pretext for his return; and the better to ensure this, he sends his wife another letter which she may show to his parents, and in which, at the end of much general news about Paris, he alludes incidentally to the bad effect on his health of drinking the waters of the Seine. He regrets having to resort to this fiction; but considers that he is justified by the circumstances.

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FORE:What are the pretexts by which secret accusations and punishments are justified? Are they the public welfare, the security and maintenance of the form of government? But how strange a constitution is that, where he who has force on his side, and opinion, which is even stronger than force, is afraid of every citizen! Is then the indemnity of the accuser the excuse? In that case the laws do not sufficiently defend him; and shall there be subjects stronger than their sovereign? Or is it to save the informer from infamy? What! secret calumny be fair and lawful, and an open one deserving of punishment! Is it, then, the nature of the crime? If indifferent actions, or even useful actions, are called crimes, then of course accusations and trials can never be secret enough. But how can there be crimes, that is, public injuries, unless the publicity of this example, by a public trial, be at the same time[144] the interest of all men? I respect every government, and speak of none in particular. Circumstances are sometimes such that to remove an evil may seem utter ruin when it is inherent in a national system. But had I to dictate new laws in any forgotten corner of the universe, my hand would tremble and all posterity would rise before my eyes before I would authorise such a custom as that of secret accusations.

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THREE:There was little of eventfulness in Beccarias life, and the only episode in it of interest was his visit to Paris in 1766. Thither he and his friend Pietro had been invited by Morellet, in the name of the philosophers at Paris, and thither he started in October 1766; not with Pietro, who could not leave Milan, but with Alessandro Verri, on a journey which was to include London as well as Paris, and was to occupy in all a period of six months.CHAPTER XVIII. INFAMY.

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TWO:Pederasty, so severely punished by the laws, and so readily subjected to the tortures that triumph over innocence, is founded less on the necessities of man, when living in a state of isolation and freedom, than on his passions when living in a state of society and slavery. It derives its force not so much from satiety of pleasure as from the system of education now in vogue, which, beginning by making men useless to themselves in order to make them useful to others, causes, by its too strict seclusion, a waste of all vigorous development, and accelerates the approach of old age.
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THREE:

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THREE: From political morality, unless founded on the immutable sentiments of mankind, no lasting advantage can be hoped. Whatever law deviates from these sentiments will encounter a resistance which will ultimately prevail over it, just in the same way as a force, however slight, if constantly applied, will prevail over a violent motion applied to any physical body.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.

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THREE:The very success of Beccarias work has so accustomed us to its result that we are apt to regard it, as men regard a splendid cathedral in their native town, with very little recognition of its claims to admiration. The work is there, they see it, they live under its shadow; they are even ready to boast of it; but[30] what to them is the toil and risk of its builders, or the care and thought of its architects? It may be said that this indifference is the very consummation Beccaria would most have desired, as it is the most signal proof of the success of his labour. So signal, indeed, has been that success, that already the atrocities which men in those days accepted as among the unalterable conditions of their existence, or resigned themselves to as the necessary safeguards of society, have become so repulsive to the worlds memory, that men have agreed to hide them from their historical consciousness by seldom reading, writing, or speaking of their existence. And this is surely a fact to be remembered with hopefulness, when we hear an evil like war with all its attendant atrocities, defended nowadays by precisely the same arguments which little more than a hundred years ago were urged on behalf of torture, but which have proved nevertheless insufficient to keep it in existence.

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THREE:The credibility, therefore, of a witness must diminish in proportion to the hatred, friendship, or close connection between himself and the accused. More than one witness is necessary, because, so long as one affirms and another denies, nothing is proved, and the right which everyone has of being held innocent prevails.[140] The credibility of a witness becomes appreciably less, the greater the atrocity of the crime imputed,[66] or the improbability of the circumstances, as in charges of magic and gratuitously cruel actions. It is more likely, as regards the former accusation, that many men should lie than that such an accusation should be true, because it is easier for many men to be united in an ignorant mistake or in persecuting hatred than for one man to exercise a power which God either has not conferred or has taken away from every created being. The same reasoning holds good also of the second accusation, for man is only cruel in proportion to his interest to be so, to his hatred or[141] to his fear. Properly speaking, there is no superfluous feeling in human nature, every feeling being always in strict accordance with the impressions made upon the senses. In the same way the credibility of a witness may sometimes be lessened by the fact of his being a member of some secret society, whose purposes and principles are either not well understood or differ from those of general acceptance; for such a man has not only his own passions but those of others besides.

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THREE:Infanticide equally is the result of the unavoidable dilemma in which a woman is placed who from weakness or by violence has fallen. Finding herself placed between the alternative of infamy on the one side, and the death of a being insentient of its pains on the other, how can she fail to prefer the latter to the infallible misery awaiting both herself and her unhappy offspring? The best way to prevent this crime would be to give efficient legal protection to weakness against tyranny, which exaggerates those vices that cannot be hidden by the cloak of virtue.

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FORE:
THREE:The mind of man offers more resistance to violence and to extreme but brief pains than it does to time and to incessant weariness; for whilst it can, so to speak, gather itself together for a moment to repel the former, its vigorous elasticity is insufficient to resist the long and repeated action of the latter. In the[174] case of capital punishment, each example presented of it is all that a single crime affords; in penal servitude for life, a single crime serves to present numerous and lasting warnings. And if it be important that the power of the laws should often be witnessed, there ought to be no long intervals between the examples of the death penalty; but this would presuppose the frequency of crimes, so that, to render the punishment effective, it must not make on men all the impression that it ought to make, in other words, it must be useful and not useful at the same time. And should it be objected that perpetual servitude is as painful as death, and therefore equally cruel, I will reply, that, taking into consideration all the unhappy moments of servitude, it will perhaps be even more painful than death; but whilst these moments are spread over the whole of a lifetime, death exercises all its force in a single moment. There is also this advantage in penal servitude, that it has more terrors for him who sees it than for him who suffers it, for the former thinks of the whole sum-total of unhappy moments, whilst the latter, by the unhappiness of the present moment, has his thoughts diverted from that which is to come. All evils are magnified in imagination, and every sufferer finds resources and consolations unknown to and unbelieved in by spectators, who substitute their own sensibility for the hardened soul of a criminal.
FORE: An error, not less common than it is contrary to the object of societythat is, to the consciousness of personal securityis leaving a magistrate to be the arbitrary executor of the laws, free at his pleasure to imprison a citizen, to deprive a personal enemy of his liberty on frivolous pretexts, or to leave a friend unpunished in spite of the strongest proofs of his guilt. Imprisonment is a punishment which, unlike every other, must of necessity precede the declaration of guilt; but this distinctive character does not deprive it of the other essential of punishment, namely, that the law alone shall determine the cases under which it shall be merited. It is for the law, therefore, to point out the amount of evidence of a crime which shall justify the detention of the accused, and his subjection to examination and punishment. For such detention there may be sufficient proofs in common[133] report, in a mans flight, in a non-judicial confession, or in the confession of an accomplice; in a mans threats against or constant enmity with the person injured; in all the facts of the crime, and similar indications. But these proofs should be determined by the laws, not by the judges, whose decisions, when they are not particular applications of a general maxim in a public code, are always adverse to political liberty. The more that punishments are mitigated, that misery and hunger are banished from prisons, that pity and mercy are admitted within their iron doors, and are set above the inexorable and hardened ministers of justice, the slighter will be the evidences of guilt requisite for the legal detention of the suspected.The same may be said, though for a different reason, where there are several accomplices of a crime, not all of them its immediate perpetrators. When several men join together in an undertaking, the greater its[163] risk is, the more will they seek to make it equal for all of them; the more difficult it will be, therefore, to find one of them who will be willing to put the deed into execution, if he thereby incurs a greater risk than that incurred by his accomplices. The only exception would be where the perpetrator received a fixed reward, for then, the perpetrator having a compensation for his greater risk, the punishment should be equalised between him and his accomplices. Such reflections may appear too metaphysical to whosoever does not consider that it is of the utmost advantage for the laws to afford as few grounds of agreement as possible between companions in crime.

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FORE:

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THREE:Judgment must be nothing but the precise text of the law, and the office of the judge is only to pronounce whether the action is contrary or conformable to it.Offences, therefore, against personal security and liberty are among the greatest of crimes. Under this head fall not only the assassinations and thefts of the common people, but those also committed by the nobles and magistrates, whose influence, acting with greater force and to a greater distance, destroys in those subject to them all ideas of justice and duty, and gives strength to those ideas of the right of the strongest, which are equally perilous ultimately to him who exercises no less than to him who endures it.

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But if penal laws thus express the wide variability of human morality, they also contribute to make actions moral or immoral according to the penalties by which they enforce or prevent them. For not[74] only does whatever is immoral tend to become penal, but anything can be made immoral by being first made penal; and hence indifferent actions often remain immoral long after they have ceased to be actually punishable. Thus the Jews made Sabbath-breaking equally immoral with homicide or adultery, by affixing to each of them the same capital penalty; and the former offence, though it no longer forms part of any criminal code, has still as much moral force against it as many an offence directly punishable by the law.But these periods of time will not be lengthened in exact proportion to the atrocity of crimes, since the probability of a crime is in inverse ratio to its atrocity. It will, then, be necessary to shorten the period for inquiry and to increase that of prescription; which[159] may appear to contradict what I said before, namely, that it is possible to inflict equal penalties on unequal crimes, by counting as a penalty that period of imprisonment or of prescription which precedes the verdict. To explain to the reader my idea: I distinguish two kinds of crimesthe first, atrocious crimes, beginning with homicide and including all the excessive forms of wickedness; the second comprising less considerable crimes. This distinction is founded in human nature. Personal security is a natural right, the security of property a social one. The number of motives which impel men to violate their natural affections is far smaller than those which impel them, by their natural longing for happiness, to violate a right which they do not find written in their hearts but only in the conventions of society. The very great difference between the probability of these two kinds of crime respectively makes it necessary that they should be ruled by different principles. In cases of the more atrocious crimes, because they are more uncommon, the time for inquiry ought to be so much the less as the probability of the innocence of the accused is greater; and the time of prescription ought to be longer, as on an ultimate definite sentence of guilt or innocence depends the destruction of the hope of impunity, the harm of which is proportioned to the atrocity of the crime. But in cases of lesser criminality, where the presumption in favour of a mans[160] innocence is less, the time for inquiry should be longer; and as the harm of impunity is less, the time of prescription should be shorter. But such a division of crimes ought, indeed, not to be admitted, if the danger of impunity decreased exactly in proportion to the greater probability of the crime. One should remember that an accused man, whose guilt or innocence is uncertain, may, though acquitted for lack of proofs, be subjected for the same crime to a fresh imprisonment and inquiry, in the event of fresh legal proofs rising up against him, so long as the time of prescription accorded by the laws has not been past. Such at least is the compromise that I think best fitted to preserve both the liberty and the security of the subject, it being only too easy so to favour the one at the expense of the other, that these two blessings, the inalienable and equal patrimony of every citizen, are left unprotected and undefended, the one from declared or veiled despotism, the other from the turbulence of civil anarchy.Such are some of the problems connected with penology, which best illustrate the imperfection of its hitherto attained results. Only one thing as yet seems to stand out from the mist, which is, that closely associated as crime and punishment are both in thought and speech, they are but little associated in reality. The amount of crime in a country appears to be a given quantity, dependent on quite other causes than the penal laws directed to its repression. The efficiency of the latter seems proportioned[107] to their mildness, not to their severity; such severity being always spoiled by an inevitable moderation in practice. The conclusion, therefore, would seem to be, that a short simple code, with every punishment attached to every offence, with every motive for aggravation of punishment stated, and on so moderate a scale that no discretion for its mitigation should be necessary, would be the means best calculated to give to penal laws their utmost value as preventives of crime, though experience proves that as such preventives their place is a purely secondary one in a really good system of legislation.Judgment must be nothing but the precise text of the law, and the office of the judge is only to pronounce whether the action is contrary or conformable to it.
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