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FORE:Capital punishment being less general in the world now than torture was when Beccaria wrote, it seems to be a fair logical inference that it is already far advanced towards its total disappearance. For the same argument which Voltaire applied in the case of torture cannot fail sooner or later to be applied to capital punishment. If, he says, there were but one nation in the world which had abolished the use of torture; and if in that nation crimes were no more frequent than in others, its example would be surely sufficient for the rest of the world. England alone might instruct all other nations in this particular; but England is not the only nation. Torture has been abolished in other countries, and with success; the question, therefore, is decided. If in this argument we read capital punishment instead of torture, murders instead of crimes, and Portugal instead of England, we shall best appreciate that which is after all the strongest argument against capital punishment, namely, that it has been proved unnecessary for its professed object in so many countries that it might safely be relinquished in all.
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FORE:Where there is no capital punishment, as in Michigan, a mans innocence may be discovered subsequently to conviction, and justice done to him for the error of the law. Such a case actually happened not long ago in Michigan, where a prisoners innocence[41] was clearly proved after ten years imprisonment. Where capital punishment exists, there is no such hope; nor is there any remedy if, as in the case of Lewis, who was hung in 1831, another man thirty-three years afterwards confesses himself the murderer. It is impossible to preclude all chances of such errors of justice. Illustrative of this is the story of the church organist near Kieff, who murdered a farmer with a pistol he stole from a priest. After his crime he placed the pistol in the sacristy, and then, when he had prevented the priest from giving evidence against him by the act of confession, went and denounced the priest as the culprit. The priest, in spite of his protestations of innocence, was sentenced to hard labour for life; and when, twenty years afterwards, the organist confessed his guilt on his deathbed, and the priests liberation was applied for, it was found that he had died only a few months before.[26]
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FORE: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[57] 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.This infamous crucible of truth is a still-existing monument of that primitive and savage legal system, which called trials by fire and boiling water, or the accidental decisions of combat, judgments of God, as if the rings of the eternal chain in the control of the First Cause must at every moment be disarranged and put out for the petty institutions of mankind. The only difference between torture and the trial by fire and water is, that the result of the former seems to depend on the will of the accused, and that of the other two on a fact which is purely physical and extrinsic to the sufferer; but the difference is only apparent, not real. The avowal of truth under tortures and agonies is as little free as was in those times the prevention without fraud of the usual effects of fire and boiling water. Every act of our will is ever proportioned to the force of the sensible impression which causes it, and the sensibility of every man is limited. Hence the impression produced by pain may be so intense as to occupy a mans entire sensibility and leave him no other liberty than the choice of the shortest way of escape, for the present moment, from his penalty. Under such circumstances the answer of the accused is as[151] inevitable as the impressions produced by fire and water; and the innocent man who is sensitive will declare himself guilty, when by so doing he hopes to bring his agonies to an end. All the difference between guilt and innocence is lost by virtue of the very means which they profess to employ for its discovery.
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FORE:Torture was definitely and totally abolished in Portugal in 1776, in Sweden in 1786,[24] and in Austria in 1789. In the latter country, indeed, it had been abolished by Maria Theresa sixteen years before in her German and Polish provinces; and the Penal Code of Joseph II., published in 1785, was an additional tribute to the cause of reform. Secret orders were even given to the tribunals to substitute other punishments for hanging, yet so that the general public should be unaware of the change. There was the greatest anxiety that it should not be thought that this change was out of any deference for Beccaria or his school. In the abolition of capital punishment, said Kaunitz, his Majesty pays no regard at all to the principles of modern philosophers, who, in affecting a horror of bloodshed, assert that primitive justice has no right to take from a man that life which Nature only can give him. Our sovereign has only consulted his own conviction, that the punishment he wishes substituted for the capital penalty is more likely to be felt by reason of its duration, and therefore better fitted to inspire malefactors with terror.CHAPTER XXX. THEFTS.
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FORE:This honour, then, is one of those complex ideas[210] which are an aggregate not only of simple ideas but of ideas no less complex than themselves, and which in their various presentments to the mind now admit and now omit some of their different component elements, only retaining some few common ideas, just as in algebra several complex quantities admit of a common divisor. To find this common divisor in the different ideas that men form of honour, we must cast a rapid glance over the first formation of communities.CHAPTER III. THE INFLUENCE OF BECCARIA IN ENGLAND.
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FORE: This useless prodigality of punishments, by which men have never been made any better, has driven me to examine whether the punishment of death be really useful and just in a well organised government. What kind of right can that be which men claim for the slaughter of their fellow-beings? Certainly not that right which is the source of sovereignty and of laws. For these are nothing but the sum-total of the smallest portions of individual liberty, and represent the general will, that is, the aggregate of individual wills. But who ever wished to leave to other men the option of killing him? How in the least possible sacrifice of each mans liberty can there be a sacrifice of the greatest of all goods, namely, of life? And if there could be that sacrifice, how would such a principle accord with the other, that a man is not the[170] master of his own life? Yet he must have been so, could he have given to himself or to society as a body this right of killing him.
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