The country in which the first attempt was made to apply his principles to practice was Russia, where Catharine II. was anxious to establish a uniform penal code, based on the liberal ideas of the time, which then found more favour in St. Petersburg than they did at Paris. For this purpose in 1767 she summoned to Moscow from all the provinces of Russia those 652 deputies who formed the nearest approach in the history of that country to a Russian Parliament. In the instructions that were read to this assembly, as the basis for the proposed codification of the laws, the principles propounded were couched not only in the spirit but often in the very words of the author of the ‘Crimes and Punishments.’ The following are examples:—The following letter by Beccaria to the Abbé Morellet in acknowledgment of the latter’s translation of his treatise is perhaps the best introduction to the life and character of the author. The letter in question has been quoted by Villemain in proof of the debt owed by the Italian literature of the last century to that of France, but from the allusions therein contained to Hume and the ‘Spectator’ it is evident that something also was due to our own. Beccaria had spent eight years of his youth in the college of the Jesuits at Parma, with what sense of gratitude this letter will show. The following is a translation of the greater part of it:—
There seem to be three principal reasons why, under our present system, crime still keeps its general level, irrespective of all changes in our degrees of punishment.The following is the kind of reasoning adopted by the thief or the assassin, whose only motives for not breaking the laws are the gallows or the wheel. (I know that the analysis of one’s own thoughts is an art only learnt by education, but a thief does not the less act according to certain principles because he is unable to express them). ‘Of what sort,’ he argues, ‘are these laws that I am bound to observe, that leave so great an interval between myself and the rich man? He denies me the penny I ask of him, and excuses himself by ordering from me a work of which he himself knows nothing. Who has made these laws? Were they not made by rich and powerful men, who have never deigned to visit the wretched hovels of the poor, who have never divided a musty loaf of bread amid the innocent cries of famished children and the tears of a wife? Let us break these bonds, which are fatal to the greater number, and only useful to a few indolent tyrants; let us attack injustice in its source. I will return to my state of natural independence; I will live for some time happy and free on the fruits of my courage and address; and if the day should ever come when I have to suffer and repent for it, the time of suffering will be short, and I shall have one day of misery for many years of liberty and pleasure. As the king of a small band, I will correct the errors of fortune, and see these tyrants pale and tremble before one, whom in their insolent arrogance they rated lower than their horses or their dogs.’ Then religion hovers before the mind of the criminal, who turns everything to a bad use, and offering him a facile repentance and an almost certain eternity of bliss does much to diminish in his eyes the horror of that last tragedy of all.
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.’ 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.
Of all the attacks which the publication of the ‘Dei Delitti’ provoked, the bitterest came naturally from a theological pen. At the very time that Beccaria’s work appeared, the Republic of Venice was occupied in a violent contest touching the Inquisitorial Council of Ten; and imagining that Beccaria’s remarks about secret accusations had been directed against the procedure of their famous tribunal, whilst they attributed the work to a Venetian nobleman called Quirini, they forbade its circulation under pain of death. It was on their behalf and with this belief that the Dominican Padre, Facchinei, took up his pen and wrote a book, entitled, ‘Notes and Observations on the “Dei Delitti,”’ in which he argued, among other things, not only that secret accusations were the best, cheapest, and most effective method of carrying out justice, but that torture was a kind of mercy to a criminal, purging him in his death from the sin of falsehood.The more speedily and the more nearly in connection with the crime committed punishment shall follow, the more just and useful it will be. I say more just, because a criminal is thereby spared those useless and fierce torments of suspense which are all the greater in a person of vigorous imagination and fully conscious of his own weakness; more just also, because the privation of liberty, in itself a punishment, can only precede the sentence by the shortest possible interval compatible with the requirements of necessity. Imprisonment, therefore, is simply the safe custody of a citizen pending the verdict of his guilt; and this custody, being essentially disagreeable, ought to be as brief and easy as possible. The shortness of the time should be measured both by the necessary length of the preparations for the trial and by the seniority of claim to a judgment. The strictness of confinement should be no more than is necessary either for the prevention of escape or for guarding against the concealment of the proof of crimes. The trial itself should be finished in the shortest time possible. What contrast more cruel than that between a judge’s ease and a defendant’s anguish? between the comforts and pleasures of an unfeeling magistrate on the one hand, and the tears and wretchedness of a prisoner on the other? In general, the weight of a punishment and the consequence of a crime should be as efficacious as possible for the restraint of other men and as little hard as possible for the individual who is punished; for one cannot call that a proper form of society, where it is not an infallible principle, that its members intended, in constituting it, to subject themselves to as few evils as possible.
2. When the proofs of a fact all depend equally on a single one, their number neither increases nor diminishes the probability of the fact in question, because their total value resolves itself into that of the single one on which they depend.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.
For if punishment is weak to prevent crime, it is strong to produce it, and it is scarcely open to doubt that its productive force is far greater than its preventive. Our terms of imprisonment compel more persons to enter a career of crime than they prevent from pursuing one, that being often the only resource left for those who depend on a criminal’s labour. Whether in prison or the workhouse, such dependents become a charge to society; nor does it seem reasonable, that if one man under sore temptation steals a loaf, a hundred other men who do no such thing must contribute to keep, not only the prisoner himself, but his family too, in their daily bread for so long a time as it pleases the law to detain him from earning his and their necessary subsistence.When the visit to Paris was contemplated it was a question of either not going at all or of leaving Teresa behind; there was not money enough for her to travel too. For Beccaria, though the son of a marquis and of noble origin, was not rich. When in his twenty-third year he married Teresa, his father was so opposed to the match on the score of insufficiency of fortune, that for some time after the marriage he refused to receive the young couple into his house, and they lived in considerable poverty. Appeal had even been made to the Government itself to break off, if possible, so unsuitable a match; but the lovers had their own way, of course, in the end, though it was not for some time that the domestic quarrel was healed, and then, it appears, through the mediation of Pietro Verri.CHAPTER I. BECCARIA’S LIFE AND CHARACTER.
If blind ignorance is less pernicious than confused half-knowledge, since the latter adds to the evils of ignorance those of error, which is unavoidable in a narrow view of the limits of truth, the most precious gift that a sovereign can make to himself or to his people is an enlightened man as the trustee and guardian of the sacred laws. Accustomed to see the truth and not to fear it; independent for the most part of the demands of reputation, which are never completely satisfied and put most men’s virtue to a trial; used to consider humanity from higher points of view; such a man regards his own nation as a family of men and of brothers, and the distance between the nobles and the people seems to him so much the less as he has before his mind the larger total of the whole human species. Philosophers acquire wants and interests unknown to the generality of men, but that one above all others, of not belying in public the principles they have taught in obscurity, and they gain the habit of loving the truth for its own sake. A selection of such men makes the happiness of a people, but a happiness which is only transitory, unless good laws so increase their number as to lessen the probability, always considerable, of an unfortunate choice.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!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 case constituting the second reason for which one may believe capital punishment to be both just and necessary.
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.
Lord Kames attacked our criminal law in a still more indirect way, by tracing punishment historically to the revenge of individuals for their private injuries, and by extolling the excellence of the criminal law of the ancient Egyptians. They, he said, avoided capital punishments as much as possible, preferring others which equally prevented the recommission of crimes. Such punishments effected their end ‘with less harshness and severity than is found in the laws of any other nation, ancient or modern.’An error, not less common than it is contrary to the object of society—that is, to the consciousness of personal security—is 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 report, in a man’s flight, in a non-judicial confession, or in the confession of an accomplice; in a man’s 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.
Neither the noble nor the rich man ought to be able to pay a price for injuries committed against the feeble and the poor; else riches, which, under the protection of the laws, are the prize of industry, become the nourishment of tyranny. Whenever the laws suffer a man in certain cases to cease to be a person and to become a thing, there is no liberty; for then you will see the man of power devoting all his industry to gather from the numberless combinations of civil life those which the law grants in his favour. This discovery is the magic secret that changes citizens into beasts of burden, and in the hand of the strong man forms the chain wherewith to fetter the actions of the imprudent and the weak. This is the reason why in some governments, that have all the semblance of liberty, tyranny lies hidden or insinuates itself unforeseen, in some corner neglected by the legislator, where insensibly it gains force and grows.But, in spite of the liberalism of the Count, the penal laws and customs of Lombardy remained the same; and the cruel legal procedure by torture existed still, untouched by the salutary reforms effected in other departments of the Government. There was the preparatory torture, to extort confession from criminals not yet condemned; there was torture for the discovery of a criminal’s accomplices; and there was the extraordinary or greater torture, which preceded the execution of a sentence of death. It is true that torture could only be applied to crimes of a capital nature, but there was scarcely an act in the possible category of crimes that was not then punishable with death. Proofs of guilt were sought almost entirely from torture and secret accusations, whilst penalties depended less on the text of any known law than on the discretion—that is, on the caprice—of the magistrate.详情
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