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Nor are such scruples to convict unreasonable, when we consider the number who on apparently conclusive evidence have been falsely and irrevocably condemned to death. Playgoers who have seen The Lyons Mail will remember how barely Lesurques, the Parisian gentleman, escaped punishment for the guilt of Dubosc, the robber and murderer. But the moral of the story is lost in the play, for Lesurques actually was executed for the crime of Dubosc, by reason of the strong resemblance he bore to him, the latter only receiving the due reward for his crimes after the innocent man had died as a common murderer on the scaffold. Then there are cases in which, as in the famous case of Calas, some one having committed suicide, some one else is executed as the murderer. That dead men tell no tales is as true of men hung as of men murdered, and the innocence of an executed man may be proved long afterwards or not at all.

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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.
  • THREE:

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  • THREE:Corporal and painful punishments should not be inflicted for those crimes which have their foundation in pride, and draw from pain itself their glory and nutriment. For such crimes ridicule and infamy are more fitted, these being penalties which curb the[184] pride of fanatics by the pride of the beholders, and only let truth itself escape their tenacity by slow and obstinate efforts. By such an opposition of forces against forces, and of opinions against opinions, the wise legislator destroys that admiration and astonishment among a people, which a false principle causes, whose original absurdity is usually hidden from view by the plausible conclusions deduced from it. If the interpretation of laws is an evil, it is clear that their obscurity, which necessarily involves interpretation, must be an evil also, and an evil which will be at its worst where the laws are written in any other than the vernacular language of a country. For in that case the people, being unable to judge of themselves how it may fare with their liberty or their limbs, are made dependent on a small class of men; and a book, which should be sacred and open to all, becomes, by virtue of its language, a private and, so to speak, a family manual.

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  • THREE: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.

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THREE:CHAPTER XXVI. CRIMES OF HIGH TREASON.

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THREE:But whether the international extradition of criminals be useful I would not venture to decide, until laws more in conformity with the needs of humanity, until milder penalties, and until the emancipation of law from the caprice of mere opinion, shall have given[194] security to oppressed innocence and hated virtue; until tyranny shall have been confined, by the force of universal reason which ever more and more unites the interests of kings and subjects, to the vast plains of Asia; however much the conviction of finding nowhere a span of earth where real crimes were pardoned might be the most efficacious way of preventing their occurrence.

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THREE:Even if we assume that death is absolutely the severest penalty devisable by the law, and that as a punishment for murder it is not too severe, it remains certain, that, relatively to the circumstances of a trial[40] for murder, to the reluctance of judges or juries to pass an irretrievable sentence, to their fear of error, to their conscientious regard for human life, it is really a much less terrible danger for a malefactor to face than a penalty which would justify fewer hopes of impunity.To combine the maximum of perspicuity with the maximum of fidelity to the original has been the cardinal principle observed in the translation. But it would, of course, have been no less impossible than contrary to the spirit of the original to have attempted to render perfectly comprehensible what the author purposely wrapped in obscurity. A translation can but follow the lights and shades of the surface it reflects, rendering clear what is clear in the original, and opaque what is opaque.

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THREE:The case of infanticide suggests similar thoughts. When we remember that both Plato and Aristotle commended as a valuable social custom that which we treat as a crime; when we recall the fact that the life of a Spartan infant depended on a committee of elders, who decided whether it should live or perish, we shall better appreciate the distance we have travelled, or, as some would say, the progress we have made, if we take up some English daily paper and read of some high-minded English judge sentencing, at least formally, some wretched woman to death, because, in order to save her child from starvation or herself from shame, she has released it from existence. Yet the feeling, of which such a sentence is the expression, is often extolled as one of the highest triumphs of civilisation; and the laws, as if there were no difference between adult and infant[76] life, glory in protecting the weakness of a child by their merciless disregard for the weakness of its mother.

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THREE:That these causes do to a great extent defeat the preventive effect of our penal laws, is proved by the tale of our criminal statistics, which reveal the fact that most of our crime is committed by those who[100] have once been punished, and that of general crime about 77 per cent. is committed with impunity. But if so large a proportion of crimes pass unpunished altogether, it is evident that society depends much less for its general security upon its punishments than is commonly supposed. Might it not, therefore, still further relax such punishments, which are really a severe tax on the great majority of honest people for the repression of the very small proportion who constitute the dishonest part of the community?[58]

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FORE: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.

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FORE:It is unhappily no mere theory, that the majority of crimes are committed precisely by those who risk most in committing them; by those, that is, who commit them with the aggravated penalty full in view. By the existing law (of which both the Criminal Code- and the Penal Servitude-Commissioners have proposed the mitigation) anyone convicted of felony after a previous conviction for felony is liable to penal servitude for life, or to imprisonment with hard labour for four years, with one or more whippings. The minimum punishment for a second conviction of felony is seven years. Yet, with the knowledge of such increased punishments before their eyes, with the full consciousness of their liabilities as old offenders, official statistics show that of both the male and female convicts in the English convict prisons considerably more than half have incurred previous convictions.[50] Of the male convicts in 1878, 79 per cent.,[93] and of the female 89 per cent., were cases of reciduous crime. May it not, then, be argued from such a failure of the system to an error in the principle on which it rests? For is it not evident that the aggravated penalty does as little to deter as the original punishment does to reform?

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    FORE:A few stories may be taken as illustrative of thousands to indicate the mischief and travesty of justice which arises from the neglect of this principle, and from the custom of making a legal inquiry into moral antecedents.

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    FORE: 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.It is sometimes the custom to release a man from the punishment of a slight crime when the injured person pardons him: an act, indeed, which is in accordance with mercy and humanity but contrary to public policy; as if a private citizen could by his remission do away with the necessity of the example in the same way that he can excuse the reparation due for the offence. The right of punishing does not[190] rest with an individual, but with the community as a whole, or the sovereign. An individual can only renounce his particular portion of that right, not annul that of all the rest.

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    FORE:Although these instructions were not so much laws as suggestions of laws, it is obvious what their effect must have been when published and diffused throughout Russia. That they were translated into Latin, German, French, and Italian proves the interest that was taken in Europe by this first attempt to apply the maxims of philosophy to practical government. It is a great point in every good system of laws to determine exactly the credibility of witnesses and the proofs of guilt Every reasonable manthat is, every man with a certain connection between his ideas and with feelings like those of other menis capable of bearing witness. The true measure of his credibility is only the interest he has in speaking or in not speaking the truth; so that nothing can be more frivolous than to reject the evidence of women on the pretext of their feebleness, nothing more childish than to apply the results of real death to civil death as regards the testimony of the condemned, nothing more unmeaning than to insist on the mark of infamy in the infamous when they have no interest in lying.

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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]These customs had doubtless their defenders, and left the world not without a struggle. It must have cost some one, whosoever first questioned the wisdom of hanging animals or murdering a criminals relations, as much ridicule as it cost Beccaria to question the efficacy of torture or the right of capital punishment. But the boldness of thought in that unknown reformer was probably lost sight of in the arrogance of his[73] profanity, and he doubtless paid with his own neck for his folly in defending the pigs.

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    FORE:But if penal laws thus express the wide variability of human morality, they also contribute to make actions moral or immoral according to the penalties by which they enforce or prevent them. For not[74] only does whatever is immoral tend to become penal, but anything can be made immoral by being first made penal; and hence indifferent actions often remain immoral long after they have ceased to be actually punishable. Thus the Jews made Sabbath-breaking equally immoral with homicide or adultery, by affixing to each of them the same capital penalty; and the former offence, though it no longer forms part of any criminal code, has still as much moral force against it as many an offence directly punishable by the law.

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But I must explain to you how all this mistaken idea of denouncing pleasure and praising pain was born and I will give you a complete account of the system, and expound the actual teachings of the great explorer of the truth, the master-builder of human happiness.Nemo enim ipsam voluptatem quia voluptas sit aspernatur aut odit aut fugit.account of the system.

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CHAPTER III. CONSEQUENCES.Capital punishment makes an impression in prospect which, with all its force, does not fully meet that ready spirit of forgetfulness, so natural to man even in his most important concerns, and so liable to be accelerated by his passions. As a general rule, men are startled by the sight of violent sufferings, but not for long, and therefore such impressions are wont so to transform them as to make of ordinary men either Persians or Spartans; but in a free and settled government impressions should rather be frequent than strong.Some persons have maintained that a crime, that is, an action contrary to the laws, is punishable wherever committed, as if the character of subject[193] were indelible, or, in other words, synonymous with, nay, worse than, the character of slave; as if a man could be the subject of one kingdom and the resident of another, or as if his actions could without contradiction be subordinate to two sovereign powers and to two legal systems often contradictory. So some think that a cruel action done, say, at Constantinople is punishable at Paris, for the abstract reason that he who offends humanity deserves to have collective humanity for his enemy, and merits universal execration; as if judges were the avengers of human sensibility in general, and not rather of the covenants that bind men together. The place of punishment is the place of the crime, because there, and there only, is it a compulsory duty to injure an individual, to prevent an injury to the public. A villain, but one who has not broken the covenants of the society of which he was not a member, may be an object of fear, and for that reason be expelled and exiled by the superior power of that society; but he cannot be legally and formally punished, since it is for the laws to avenge, not the intrinsic malice of particular actions, but the violation of compacts.
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