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CHAPTER XXXII. OF DEBTORS.

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The publication of the Delitti e delle Pene interrupted its authors dreams of philosophical calm, by fulfilling his hopes of literary fame. The French encyclop?dists were the first to recognise its merits, and DAlembert, the mathematician, at once predicted for the writer the reward of an immortal[13] reputation. Morellets translation, in which the arrangement, though not the matter of the text, was entirely altered, ran through seven editions in six months, and Beccaria, as has been seen, was only too delighted with the honour thus conferred on him to complain in any way of the liberties taken by the translator with the original.A strange consequence that flows naturally from the use of torture is, that an innocent man is thereby placed in a worse condition than a guilty one, because if both are tortured the former has every alternative against him. For either he confesses the crime and is condemned, or he is declared innocent, having suffered an undeserved punishment. But the guilty man has one chance in his favour, since, if he resist the torture firmly, and is acquitted in consequence, he has exchanged a greater penalty for a smaller one. Therefore the innocent man can only lose, the guilty may gain, by torture.When the community is one of individuals, the subordination that prevails in the family prevails by agreement, not by compulsion; and the sons, as soon as their age withdraws them from their state of natural dependence, arising from their feebleness and their need of education and protection, become free members of the domestic commonwealth, subjecting themselves to its head, in order to share in its advantages, as free men do by society at large. In the other condition the sonsthat is, the largest and most useful part of a nationare placed altogether at the mercy of their fathers; but in this one there is no enjoined connection between them, beyond that sacred and inviolable one of the natural ministration of necessary aid, and that of gratitude for benefits received, which is less often destroyed by the native wickedness of the human heart than by a law-ordained and ill-conceived state of subjection.

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ONE:As to the obscurity you find in the work, I heard, as I wrote, the clash of chains that superstition still shakes, and the cries of fanaticism that drown the voice of truth; and the perception of this frightful spectacle induced me sometimes to veil the truth in clouds. I wished to defend truth, without making myself her martyr. This idea of the necessity of obscurity has made me obscure sometimes without necessity. Add to this my inexperience and my want of practice in writing, pardonable in an author of twenty-eight,[3] who only five years ago first set foot in the career of letters.No man has gratuitously parted with a portion of his own liberty with a view to the public good; that is a chimera which only exists in romances. Each one of us would wish, if it were possible, that the[122] covenants which bind others should not bind himself. There is no man but makes himself the central object of all the combinations of the globe.

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THREE:There are a few obvious remedies by which the inducements to crime might be easily diminished. In 1808 Sir Samuel Romilly brought in a bill, to provide persons tried and acquitted of felony with compensation, at the discretion of the judge, for the loss they incurred by their detention and trial. This was objected to, on the ground that the payment of such compensation out of the county rates would discourage prosecutions; and the only justice done to men falsely accused from that day to this is the authorisation given to goal-governors in 1878 to provide prisoners, who have been brought from another county for trial at the assizes and have been acquitted, with means of returning to their own homes. Something more than this is required to save a man so situated from falling into real crime.
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THREE: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.Even if we assume that death is absolutely the severest penalty devisable by the law, and that as a punishment for murder it is not too severe, it remains certain, that, relatively to the circumstances of a trial[40] for murder, to the reluctance of judges or juries to pass an irretrievable sentence, to their fear of error, to their conscientious regard for human life, it is really a much less terrible danger for a malefactor to face than a penalty which would justify fewer hopes of impunity.

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THREE:CHAPTER XXXVII. OF A PARTICULAR KIND OF CRIME.
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FORE: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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FORE:Whosoever will read with a philosophical eye the codes and annals of different nations will find almost always that the names of virtue and vice, of good citizen and criminal, are changed in the course of ages, not in accordance with the changes that occur in the circumstances of a country, and consequently in conformity with the general interest, but in accordance with the passions and errors that have swayed different legislators in succession. He will observe full often, that the passions of one age form the basis of the morality of later ones; that strong passions, the offspring of fanaticism and enthusiasm, weakened and, so to speak, gnawed away by time (which reduces to a level all physical and moral phenomena) become little by little the prudence of the age, and a useful[204] instrument in the hand of the strong man and the clever. In this way the vaguest notions of honour and virtue have been produced; for they change with the changes of time, which causes names to survive things; as also with the changes of rivers and mountains, which form frequently the boundaries of moral no less than of physical geography.

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THREE:It was translated into English long ago; but the change in the order of the several chapters and paragraphs, which the work underwent before it was clothed in its final dress, is so great, that the new translation and the old one really constitute quite different books.There is an apparent discrepancy in Beccarias first condemning death as too severe a punishment and then recommending lifelong servitude as one of more deterrent power; but Beccaria would have said that the greater certainty of the latter more than compensated for the greater severity of the other. As regards the relative power of the two punishments, it probably varies in different individuals, some men having a greater dread of the one, and some of the other. The popular theory certainly goes too far, when it assumes that all men have a greater dread of the gallows than of anything else. When George III. once granted a pardon to the female convicts in Newgate on condition of their transportation to New South Wales, though seventeen of them accepted[39] the offer, there were yet six who preferred death to a removal from their native country. It is also stated by Howard that in Denmark the punishment in cases of infanticide, namely, imprisonment for life, with labour and an annual whipping on the place of the crime, was dreaded more than death, which it superseded as a punishment.
FORE:The treatise Dei Delitti, instead of throwing any light on the subject of crimes, or on the manner in which they should be punished, tends to establish a system of the most dangerous and novel ideas, which, if adopted, would go so far as to overturn laws received hitherto by the greater part of all civilised nations.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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FORE: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.

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FORE: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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It is unhappily no mere theory, that the majority of crimes are committed precisely by those who risk most in committing them; by those, that is, who commit them with the aggravated penalty full in view. By the existing law (of which both the Criminal Code- and the Penal Servitude-Commissioners have proposed the mitigation) anyone convicted of felony after a previous conviction for felony is liable to penal servitude for life, or to imprisonment with hard labour for four years, with one or more whippings. The minimum punishment for a second conviction of felony is seven years. Yet, with the knowledge of such increased punishments before their eyes, with the full consciousness of their liabilities as old offenders, official statistics show that of both the male and female convicts in the English convict prisons considerably more than half have incurred previous convictions.[50] Of the male convicts in 1878, 79 per cent.,[93] and of the female 89 per cent., were cases of reciduous crime. May it not, then, be argued from such a failure of the system to an error in the principle on which it rests? For is it not evident that the aggravated penalty does as little to deter as the original punishment does to reform?Although these instructions were not so much laws as suggestions of laws, it is obvious what their effect must have been when published and diffused throughout Russia. That they were translated into Latin, German, French, and Italian proves the interest that was taken in Europe by this first attempt to apply the maxims of philosophy to practical government. Infamy is a sign of public disapprobation, depriving a criminal of the good-will of his countrymen, of their confidence, and of that feeling almost of fraternity that a common life inspires. It does not depend upon the laws. Hence the infamy which the laws inflict should be the same as that which arises from the natural relations of things, the same as that taught by universal morality, or by that particular morality, which depends on particular systems, and sets the law for ordinary opinions or for this and that nation. If the one kind of infamy is different from the other, either the law loses in public esteem, or the ideas of morality and honesty disappear, in spite of declamations, which are never efficacious against facts. Whoever declares actions to be infamous which are in themselves indifferent, detracts from the infamy of actions that are really in themselves infamous.Is death a penalty really useful and necessary for the security and good order of society?CHAPTER XII. TORTURE.
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