I do not pretend to diminish the just wrath these crimes deserve; but, in indicating their sources, I think myself justified in drawing one general conclusion, and that is, that no punishment for a crime can be called exactly just—that is, necessary—so long as the law has not adopted the best possible means, in the circumstances of a country, to prevent the crimes it punishes.CHAPTER XXXI. SMUGGLING.CHAPTER XII. TORTURE.
Some crimes are injuries to a man’s person, others to his property, and the former should certainly be punished by corporal punishments.It is remarkable that a book which has done more for law reform than any other before or since should have been written by a man who was not a lawyer by profession, who was totally unversed in legal practice, and who was only twenty-six when he attacked a system of law which had on its side all authority, living and dead. Hume was not twenty-seven when he published his ‘Treatise on Human Nature,’ nor was Berkeley more than twenty-six when he published his ‘Principles of Human Knowledge.’ The similar precocity displayed by Beccaria is suggestive, therefore, of the inquiry, how far the greatest revolutions in the thoughts or customs of the world have been due to writers under thirty years of age.
The multiplication of the human race, slight in the abstract, but far in excess of the means afforded by nature, barren and deserted as it originally was, for the satisfaction of men’s ever increasing wants, caused the first savages to associate together. The first unions necessarily led to others to oppose them, and so the state of war passed from individuals to nations.When Beccaria wrote against capital punishment, one great argument against its abolition was its practical universality. It had been abolished in ancient Egypt by king Sabaco, in the best period of the Roman Republics by the Porcian law, and in the time of the Roman Empire by Calo-Johannes. But these cases were too remote from modern times to lend much weight to the general argument. At that time Russia alone of all the countries in the world had, from the accession of the Empress Elizabeth, afforded a practical example of the fact, that the general security of life is not diminished by the withdrawal of the protection of capital punishment. But since that time this truth has become less and less a theory or speculation, and it now rests on the positive experience of no inconsiderable portion of the world. In Tuscany, Holland, Portugal, Russia, Roumania, Saxony, Prussia, Belgium, and in ten of the United States of America, the death penalty has either been abolished or discontinued; and can it be thought that the people of those countries are so indifferent to the safety of their lives as to be content with a less efficient legal protection than is vouchsafed in countries where the protection is death?DEI DELITTI E DELLE PENE. TO THE READER.
A few stories may be taken as illustrative of thousands to indicate the mischief and travesty of justice which arises from the neglect of this principle, and from the custom of making a legal inquiry into moral antecedents.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.
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, Goldsmith could not ‘avoid even questioning the validity of that right which social combinations have assumed of capitally punishing offences of a slight nature.’ Strange, that in England such an argument should ever have seemed a daring novelty, a thing to be said tentatively and with reserve!Nothing is more dangerous than that common axiom, ‘We must consult the spirit of the laws.’ It is like breaking down a dam before the torrent of opinions. This truth, which seems a paradox to ordinary minds, more struck as they are by a little present inconvenience than by the pernicious but remote consequences which flow from a false principle enrooted among a people, seems to me to be demonstrated. Our knowledge and all our ideas are reciprocally connected together; and the more complicated they are, the more numerous are the approaches to them, and the points of departure. Every man has his own point of view—a different one at different times; so that ‘the spirit of the laws’ would mean the result of good or bad logic on the part of a judge, of an easy or difficult digestion; it would depend now on the violence of his passions, now on the feebleness of the sufferer, on the relationship between the judge and the plaintiff, or on all those minute forces which change the appearances of everything in the fluctuating mind of man. Hence it is that we see a citizen’s fate change several times in his passage from one court to another; that we see the lives of wretches at the mercy of the false reasonings or of the temporary caprice of a judge, who takes as his rightful canon of interpretation the vague result of all that confused series of notions which affect his mind. Hence it is that we see the same crimes punished differently by the same court at different times, owing to its having consulted, not the constant and fixed voice of the laws, but their unstable and erring interpretations.
Barbarous spectacles were, Paley thought, justly found fault with, as tending to demoralise public feeling. ‘But,’ he continued, ‘if a mode of execution could be devised which would augment the horror of the punishment, without offending or impairing the public sensibility by cruel or unseemly exhibitions of death, it might add something to the efficacy of example; and by being reserved for a few atrocious crimes might also enlarge the scale of punishment, an addition to which seems wanting, for as the matter remains at present you hang a malefactor for a simple robbery, and can do no more to the villain who has poisoned his father. Something of the sort we have been describing was the proposal, not long since suggested, of casting murderers into a den of wild beasts, where they would perish in a manner dreadful to the imagination, yet concealed from the view.’ It is interesting after this to learn, that Paley thought torture properly exploded from ‘the mild and cautious system of penal jurisprudence established in this country,’ and that (to do him justice) he urged private persons to be tender in prosecuting, out of regard for the difficulty of prisoners to obtain an honest means of livelihood after their discharge.
In a period of ten years, from 1867 to 1876, the total number of principal indictable offences committed in the metropolis against property—and these constitute the great majority of crimes—were 117,345. But the apprehensions for these offences were only 26,426, the convictions only 19,242. In other words, 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.It is not difficult to go back to the origin of this ridiculous law, because the absurdities themselves that a whole nation adopts have always some connection with other common ideas which the same nation respects. The custom seems to have been derived from religious and spiritual ideas, which have so great an influence on the thoughts of men, on nations, and on generations. An infallible dogma assures us, that the stains contracted by human weakness and undeserving of the eternal anger of the Supreme Being must be purged by an incomprehensible fire. Now, infamy is a civil stain; and as pain and fire take away spiritual and incorporeal stains, why should not the agonies of torture take away the civil stain of infamy? I believe that the confession of a criminal, which some courts insist on as an essential requisite for condemnation, has a similar origin;—because in the mysterious tribunal of repentance the confession of sins is an essential part of the sacrament. This is the way men abuse the surest lights of revelation; and as these are the only ones which exist in times of ignorance, it is to them on all occasions that docile humanity turns, making of them the most absurd and far-fetched applications.
These truths were recognised by the Roman legislators, for they inflicted torture only upon slaves, who in law had no personality. They have been adopted by England, a nation, the glory of whose literature, the superiority of whose commerce and wealth, and consequently of whose power, and the examples of whose virtue and courage leave us no doubt as to the goodness of her laws. Torture has also been abolished in Sweden; it has been abolished by one of the wisest monarchs of Europe, who, taking philosophy with him to the throne, has made himself the friend and legislator of his subjects, rendering them equal and free in their dependence on the laws, the sole kind of equality and liberty that reasonable men can ask for in the present condition of things. Nor has torture been deemed necessary in the laws which regulate armies, composed though they are for the most part of the dregs of different countries, and for that reason more than any other class of men the more likely to require it. A strange thing, for whoever forgets the power of the tyranny exercised by custom, that pacific laws should be obliged to learn from minds hardened to massacre and bloodshed the most humane method of conducting trials.As it, then, was necessity which constrained men to yield a part of their individual liberty, it is certain that each would only place in the general deposit the least possible portion—only so much, that is, as would suffice to induce others to defend it. The aggregate of these least possible portions constitutes the right of punishment; all that is beyond this is an abuse and not justice, a fact but not a right. Punishments which exceed what is necessary to preserve the deposit of the public safety are in their nature unjust; and the more just punishments are, the more sacred and inviolable is personal security, and the greater the liberty that the sovereign preserves for his subjects.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 mankind’s 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 benefit—I mean a great political benefit—upon 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 them—never despised, because never well understood—they concentrated their divided passions upon a single object 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.
Beccaria himself was ready enough to refer all his thoughts to French inspiration, and to lay aside all claim to originality, with respect to which D’Alembert once wrote to him: ‘A man such as you has no need of a master, still less of a master like myself. You are like the Titus Curtius of Tacitus, ex se natus, nor have your offspring any grandparent. A father like yourself is enough for them.’详情
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