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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.

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A still greater honour was the commentary written by Voltaire. The fact that only within a few miles of his own residence a girl of eighteen had been hung for the exposure of a bastard child led Voltaire to welcome Beccarias work as a sign that a period of softer manners and more humane laws was about to dawn upon the worlds history. Should not a people, he argues, who like the French pique themselves on their politeness also pride themselves on their humanity? Should they retain the use of torture, merely because it was an ancient custom, when the experience of England and other countries showed that crimes were not more numerous in countries where it was not in use, and when reason indicated the absurdity of inflicting on a man, before his condemnation, a punishment more horrible than would await his proved guilt? What could be more cruel, too, than the maxim of law that a man who forfeited his life forfeited his estates? What more inhuman than thus to punish a whole family for the crime of an individual, perhaps condemning a wife[14] and children to beg their bread because the head of the family had harboured a Protestant preacher or listened to his sermon in a cavern or a desert? Amid the contrariety of laws that governed France, the object of the criminal procedure to bring an accused man to destruction might be said to be the only law which was uniform throughout the country.
TWO: The cries of sages and philosophers are as the cries of the innocent man on the wheel, where they have never prevented, nor will ever prevent him from expiring, with his eyes upturned to heaven, which will perhaps some day stir up enthusiasm, or religious madness, or some other avenging folly, to accomplish all that their wisdom has failed to do. It is never the oration of the philosopher which disarms the powerful ruler; it is something else, which the combination of chance events brings about. Meanwhile we must not seek to force it from him, but must entreat humbly for such good as he can grant us, that is which he can grant us without injury to himself.

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THREE:A still greater honour was the commentary written by Voltaire. The fact that only within a few miles of his own residence a girl of eighteen had been hung for the exposure of a bastard child led Voltaire to welcome Beccarias work as a sign that a period of softer manners and more humane laws was about to dawn upon the worlds history. Should not a people, he argues, who like the French pique themselves on their politeness also pride themselves on their humanity? Should they retain the use of torture, merely because it was an ancient custom, when the experience of England and other countries showed that crimes were not more numerous in countries where it was not in use, and when reason indicated the absurdity of inflicting on a man, before his condemnation, a punishment more horrible than would await his proved guilt? What could be more cruel, too, than the maxim of law that a man who forfeited his life forfeited his estates? What more inhuman than thus to punish a whole family for the crime of an individual, perhaps condemning a wife[14] and children to beg their bread because the head of the family had harboured a Protestant preacher or listened to his sermon in a cavern or a desert? Amid the contrariety of laws that governed France, the object of the criminal procedure to bring an accused man to destruction might be said to be the only law which was uniform throughout the country.
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THREE:The Translator has abstained from all criticism or comment of the original, less from complete agreement[vi] with all its ideas than from the conviction that annotations are more often vexatious than profitable, and are best left to the reader to make for himself. There is scarcely a sentence in the book on which a commentator might not be prolix.
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THREE:Any action that is not included between the two above-indicated extremes can only be called a crime or punished as such by those who find their interest in so calling it. The uncertainty of these limits has produced in different nations a system of ethics contrary to the system of laws, has produced many actual systems of laws at total variance with one another, and a quantity of laws which expose even the wisest man to the severest penalties. Consequently the words virtue and vice have become of vague and variable meaning, and from the uncertainty thus surrounding individual existence, listlessness and a fatal apathy have spread over political communities.[153]

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THREE:Capital punishment becomes a spectacle for the majority of mankind, and a subject for compassion and abhorrence for others; the minds of the spectators are more filled with these feelings than with the wholesome terror the law pretends to inspire. But in moderate and continuing penalties the latter is the predominant feeling, because it is the only one. The limit, which the legislator should affix to the severity of penalties, appears to lie in the first signs of a feeling[173] of compassion becoming uppermost in the minds of the spectators, when they look upon the punishment rather as their own than as that of the criminal.CHAPTER XXXVI. CRIMES OF DIFFICULT PROOF.

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The greatest effect that any punishment has upon the human mind is not to be measured by its intensity but by its duration, for our sensibility is more easily and permanently affected by very slight but repeated impressions than by a strong but brief shock. Habit holds universal sway over every sentient being, and as we speak and walk and satisfy our needs by its aid, so moral ideas only stamp themselves on our mind by long and repeated impressions. It is not the terrible yet brief sight of a criminals death, but the long and painful example of a man deprived of[172] his liberty, who, having become as it were a beast of burthen, repays with his toil the society he has offended, which is the strongest restraint from crimes. Far more potent than the fear of death, which men ever have before their eyes in the remote distance, is the thought, so efficacious from its constant recurrence: I myself shall be reduced to as long and miserable a condition if I commit similar misdeeds.There was only one offence which Paley thought the English law punished too severely, and that was the offence of privately stealing from the person. In all other cases he defended the application of the capital penalty. It was, he thought, the peculiar merit of the English law that it swept into the net every crime which under any possible circumstance might merit death, whilst it only singled out a few[56] cases in each class of crime for actual punishment; so that whilst few really suffered death, the dread and danger of it hung over the crimes of many. The law was not cruel, for it was never meant to be indiscriminately executed, but left a large margin for the exercise of mercy.Of what kind, then, will be the punishments due to the crimes of nobles, whose privileges form so great a part of the laws of different countries? I will not here inquire whether this traditional distinction between nobles and commons be advantageous in a government, or necessary in a monarchy; nor whether it be true that a nobility forms an intermediate power in restraint of the excesses of the two[207] extremes, and not rather a caste which, in slavery to itself and to others, confines all circulation of merit and hope to a very narrow circle, like those fertile and pleasant oases scattered among the vast sand-deserts of Arabia; nor whether, supposing it to be true that inequality is inevitable and useful in society, it be also true that such inequality should subsist between classes rather than individuals, and should remain with one part of the body politic rather than circulate through the whole; whether it should rather perpetuate itself than be subject to constant self-destruction and renovation. I will confine myself to the punishments proper for nobles, affirming that they should be the same for the greatest citizen as for the least. Every distinction of honour or of riches presupposes, to be legitimate, a prior state of equality, founded on the laws, which regard all subjects as equally dependent on themselves. One must suppose the men, who renounced their natural state of despotic independence, to have said: Let him who is more industrious than his fellows have greater honours, and let his fame be greater among his successors; let him who is more prosperous and honoured hope even to become more so, but let him fear no less than other men to break those conditions by virtue of which he is raised above them. True it is that such decrees did not emanate in a convocation of the human race, but such decrees exist in the[208] eternal relations of things; they do not destroy the supposed advantages of a nobility, though they prevent its abuses; and they make laws feared, by closing every admission to impunity. And if any one shall say that the same punishment inflicted upon a noble and upon a commoner is not really the same, by reason of the diversity of their education, and of the disgrace spread over an illustrious family, I will reply, that the sensibility of the criminal is not the measure of punishment, but the public injury, and that this is all the greater when committed by the more highly favoured man; that equality of punishment can only be so when considered extrinsically, being really different in each individual; and that the disgrace of a family can be removed by public proofs of kindness on the part of the sovereign towards the innocent family of the criminal. And who is there but knows that formalities which strike the senses serve as reasonings with the credulous and admiring populace?
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