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ONE:But I say in addition: it is to seek to confound all the relations of things to require a man to be at the same time accuser and accused, to make pain the crucible of truth, as if the test of it lay in the muscles and sinews of an unfortunate wretch. The law which ordains the use of torture is a law which says to men: Resist pain; and if Nature has created in you an inextinguishable self-love, if she has given you an inalienable right of self-defence, I create in you a totally[150] contrary affection, namely, an heroic self-hatred, and I command you to accuse yourselves, and to speak the truth between the laceration of your muscles and the dislocation of your bones. The reason for translating afresh Beccarias Dei Delitti e delle Pene (Crimes and Punishments) is, that it is a classical work of its kind, and that the interest which belongs to it is still far from being merely historical. TWO:
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ONE:But, to turn from this unpleasant episode of Beccarias life, Catharine II., soon after his return to Milan, invited him to St. Petersburg, to assist in the preparation of her intended code of laws. It would seem from one of Pietro Verris letters that Beccaria was at first inclined to accept the proposal,[15] but it is improbable that any such offer would really have tempted him to exchange Italian suns for Russian snows, even if Kaunitz and Firmian had not resolved to remove the temptation, by making his talents of service at home. This they did by making him Professor of Political Economy in the Palatine School of Milan, in November 1768; and his published lectures on this subject form the largest work he ever wrote. TWO:CHAPTER XXXII. OF DEBTORS.
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ONE:Another principle would serve admirably to draw still closer the important connection between a misdeed and its punishment, and that is, that the latter should as far as possible conform to the nature of the crime. This analogy facilitates marvellously the contrast that ought to exist between the impulse to[188] the crime and the counter-influence of the punishment, the one, that is, diverting the mind and guiding it to an end quite different from that to which the seductive idea of transgressing the law endeavours to lead it. TWO: 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.What should we think of a government that has no other means than fear for keeping men in a country, to which they are naturally attached from the earliest impressions of their infancy? The surest way of keeping them in their country is to augment the relative welfare of each of them. As every effort should be employed to turn the balance of commerce in our own favour, so it is the greatest interest of a sovereign and a nation, that the sum of happiness, compared with that of neighbouring nations, should be greater at home than elsewhere. The pleasures of luxury are not the principal elements in this happiness, however much they may be a necessary remedy to that inequality which increases with a countrys progress, and a check upon the tendency of wealth to accumulate in the hands of a single ruler.[69]
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ONE:It would be possible to distinguish a case of fraud from a grave fault, a grave fault from a light one, and this again from perfect innocence; then to affix to the first the penalties due for crimes of falsification; to the second lesser penalties, but with the loss of personal liberty; and, reserving for the last degree the free choice of the means of recovery, to deprive the third degree of such liberty, whilst leaving it to a mans creditors. But the distinction between grave and light should be fixed by the blind impartiality of the laws, not by the dangerous and arbitrary wisdom of a judge. The fixings of limits are as necessary in politics as in mathematics, equally in the measurement[219] of the public welfare as in the measurement of magnitudes.[68] TWO:The influence of the predominant French philosophy appears throughout Beccarias treatise. Human justice is based on the idea of public utility, and the object of legislation is to conduct men to the greatest possible happiness or to the least possible misery. The vein of dissatisfaction with life and of disbelief in human virtue is a marked feature of Beccarias philosophy. To him life is a desert, in which a few physical pleasures lie scattered here and there;[5] his own country is only a place of exile, save for the presence of a few friends engaged like himself in a war with ignorance. Human ideas of morality and virtue have only been produced in the course of many centuries and after much bloodshed, but slow and difficult as their growth has been, they are ever ready to disappear at the slightest breeze that blows against them.It may be asked, How far was Beccaria the first to protest against the cruelty and absurdity of torture? To this it must be replied that although actually he was not the first, he was the first to do so with effect. The difference between previous writers on the subject and Beccaria is the difference between a man whose ideas are in advance of those of his age and a man who raises the ideas of his age to a level with his[31] own. So early as the sixteenth century Montaigne, in his Essay on Conscience, had said plainly enough that the putting a man to the rack was rather a trial of patience than of truth; that pain was as likely to extort a false confession as a true one; and that a judge, by having a man racked that he might not die innocent, caused him to die both innocent and racked. Also Grevius Clivensis wrote a work whilst in prison in Amsterdam, in which he sought to prove that torture was iniquitous, fallacious, and unchristian.[17] This was published in 1624; and nearly a century later a Jesuit, Spee, wrote against the use of torture, as also against the cruel practices in force against witches.[18] And in later days Montesquieu, twenty years before Beccaria, had gone so far as to say that, since a civilised nation like England had abandoned torture without evil consequences, it was therefore unnecessary; but he followed the subject to no definite conclusion.
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ONE:Sir Robert Peel, who was the first Ministerial law reformer, succeeded in getting the death penalty repealed for several crimes which were practically obsolete, but forty kinds of forgery alone still remained capital offences. TWO:
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