TWO: The reader of this treatise will perceive that I have omitted all reference to a certain class of crime, which has deluged Europe with human blood; a crime which raised those fatal piles, where living human bodies served as food for the flames, and where the blind multitude sought a pleasant spectacle and a sweet harmony from the low dull groans, emitted by wretched sufferers from volumes of black smoke, the smoke of human limbs, whilst their bones and still palpitating entrails were scorched and consumed by the flames. But reasonable men will see that the place, the age, and the subject suffer me not to inquire into the nature of such a crime. It would be too long and remote from my subject to show, how a perfect uniformity of thought ought, contrary to the practice of many countries, to be a necessity in a State; how opinions, which only differ by the most subtle and imperceptible degrees, and are altogether beyond the reach of human intelligence, can[232] yet convulse society, when one of them is not legally authorised in preference to the others; and how the nature of opinions is such, that, whilst some become clearer by virtue of their conflict and opposition, (those that are true floating and surviving, but those that are false sinking to oblivion,) others again, with no inherent self-support, require to be clothed with authority and power. Too long would it be to prove, that howsoever hateful may seem the government of force over human minds, with no other triumphs to boast of but dissimulation and debasement, and howsoever contrary it may seem to the spirit of gentleness and fraternity, commanded alike by reason and the authority we most venerate, it is yet necessary and indispensable. All this should be taken as clearly proved and conformable to the true interests of humanity, if there be anyone who, with recognised authority, acts accordingly. I speak only of crimes that spring from the nature of humanity and the social compact; not of sins, of which even the temporal punishments should be regulated by other principles than those of a narrow philosophy.Thus before his death Beccaria saw torture almost entirely abolished in Europe, and a general tendency spreading to follow the spirit of the changes he advocated in other details of criminal law. Probably no other theorist ever lived to witness so complete an adoption of his principles in practice, or so thorough a transformation of the system he attacked. It is possible that he but gave body and voice to ideas of change already widely prevalent in his time; but the[38] merit of a man belongs none the less to himself, who changes the instability of public opinion into an active and solid force, and who gives distinct expression to the longings vaguely felt by a multitude. More info

TWO:The result, then, of torture is a matter of temperament, of calculation, which varies with each man according[152] to his strength and sensibility; so that by this method a mathematician might solve better than a judge this problem: ��Given the muscular force and the nervous sensibility of an innocent man, to find the degree of pain which will cause him to plead guilty to a given crime.��Analogy between crime and punishment is another idea which, except in the case of death for death, has been relegated from the practice of most criminal laws. Yet the principle has in its favour the authority of Moses, the authority of the whole world and of all time, that punishment should, if possible, resemble the crime it punishes in kind; so that a man who blinds another should be blinded himself, he who disfigures another be disfigured himself. Thus in the old-world mythology, Theseus and Hercules inflict on the evil powers they conquer the same cruelties their victims were famous for; Termenus having his skull broken because with his own skull he broke the heads of others; and Busiris, who sacrificed others, being himself sacrificed in his turn. Both Montesquieu and Beccaria also advocate analogy in punishment, and so does Bentham to some degree; there being, indeed, few greater contrasts between the theories of the great English jurist and modern English practice than that the former should not have deprecated some suffering by burning as a penalty analogous to the crime of arson, and that he should have advised the transfixing of a forger��s hand or of a calumniator��s tongue[79] by an iron instrument before the public gaze as good and efficient punishments for forgery and slander. More info

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