TWO:
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THREE:Neither the noble nor the rich man ought to be able to pay a price for injuries committed against the feeble and the poor; else riches, which, under the[206] protection of the laws, are the prize of industry, become the nourishment of tyranny. Whenever the laws suffer a man in certain cases to cease to be a person and to become a thing, there is no liberty; for then you will see the man of power devoting all his industry to gather from the numberless combinations of civil life those which the law grants in his favour. This discovery is the magic secret that changes citizens into beasts of burden, and in the hand of the strong man forms the chain wherewith to fetter the actions of the imprudent and the weak. This is the reason why in some governments, that have all the semblance of liberty, tyranny lies hidden or insinuates itself unforeseen, in some corner neglected by the legislator, where insensibly it gains force and grows.
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THREE:The object of the preliminary chapters is to place the historical importance of the original in its just light, and to increase the interest of the subjects it discusses.
FORE:But perhaps the best illustrations of the tendency of actions to retain the infamy, attached to them by a past condition of fanatical punishments, are the cases of suicide and child-killing. Could a Greek of the classical period, or a cultivated historian like Plutarch reappear on earth, nothing would strike him more vividly than the modern conception or recent treatment of these crimes. According to Plutarch, Lycurgus, the great Spartan lawgiver, met his death by voluntary starvation, from the persuasion that even the deaths of lawgivers should be of use to mankind, and serve them with an example of virtue and greatness; and Seneca held that it was the part of a wise man not to live as long as he could but as long as he ought. With what astonishment, then, would not Plutarch or Seneca read of recent European punishments for suicideof Lady Hales[75] losing the estate she was jointly possessed of with her husband, the Judge, because he drowned himself; of the stake and the cross-roads; of the English law which still regards suicide as murder, and condemns one of two men who in a mutual attempt at self-destruction survives the other to the punishment of the ordinary murderer! Is it possible, he would ask, that an action which was once regarded as among the noblest a man could perform, has really come to be looked upon with any other feeling than one of pity or a sad respect?
THREE:Offences, therefore, against personal security and liberty are among the greatest of crimes. Under this head fall not only the assassinations and thefts of the common people, but those also committed by the nobles and magistrates, whose influence, acting with greater force and to a greater distance, destroys in those subject to them all ideas of justice and duty, and gives strength to those ideas of the right of the strongest, which are equally perilous ultimately to him who exercises no less than to him who endures it.Whosoever will read with a philosophical eye the codes and annals of different nations will find almost always that the names of virtue and vice, of good citizen and criminal, are changed in the course of ages, not in accordance with the changes that occur in the circumstances of a country, and consequently in conformity with the general interest, but in accordance with the passions and errors that have swayed different legislators in succession. He will observe full often, that the passions of one age form the basis of the morality of later ones; that strong passions, the offspring of fanaticism and enthusiasm, weakened and, so to speak, gnawed away by time (which reduces to a level all physical and moral phenomena) become little by little the prudence of the age, and a useful[204] instrument in the hand of the strong man and the clever. In this way the vaguest notions of honour and virtue have been produced; for they change with the changes of time, which causes names to survive things; as also with the changes of rivers and mountains, which form frequently the boundaries of moral no less than of physical geography.
FORE: Thefts without violence should be punished by fine. He who enriches himself at anothers expense ought to suffer at his own. But, as theft is generally only the crime of wretchedness and despair, the crime of that unhappy portion of mankind to whom the right of property (a terrible, and perhaps not necessary right[67]) has left but a bare subsistence; and as pecuniary penalties increase the number of criminals above the number of crimes, depriving the innocent of their bread in order to give it to the wicked, the fittest punishment will be that kind of servitude which[214] alone can be called just, namely, the temporary servitude of a mans labour and person for the compensation of society, the personal and absolute dependence due from a man who has essayed to exercise an unjust superiority over the social compact. But when the theft is accompanied with violence, the punishment also should be a combination of corporal and servile punishment. Some previous writers have shown the evident abuse that arises from not distinguishing punishments for thefts of violence from those for thefts of cunning, thus making an absurd equation between a large sum of money and the life of a man. For they are crimes of a different nature; and in politics, as in mathematics, this axiom is most certain, that between heterogeneous quantities the terms of difference are infinite; but it is never superfluous to repeat what has hardly ever been put into practice. Political machinery more than anything else retains the motion originally given to it, and is the slowest to adapt itself to a fresh one.
THREE:I conclude with this reflection, that the scale of punishments should be relative to the condition of a nation. On the hardened minds of a people scarcely emerged from the savage state the impressions made should be stronger and more sensible. One needs a[169] thunderbolt for the destruction of a fierce lion that faces round at the shot of a gun. But in proportion as mens minds become softened in the social state, their sensibility increases, and commensurate with that increase should be the diminution of the force of punishment, if it be desired to maintain any proportion between the object and the sensation that attends it.
FORE: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.
THREE:CHAPTER XXII. OF PROSCRIPTION.
FORE:CHAPTER III. THE INFLUENCE OF BECCARIA IN ENGLAND.
THREE:CHAPTER XX. CERTAINTY OF PUNISHMENTSPARDONS.
FORE:
THREE:CHAPTER XLII. CONCLUSION.
Perspiciatis unde omnis iste natus error sit voluptatem accu santium doloremque laudantium, totam rem aperiam, eaque ipsa quae ab illo inventore veritatis et quasi architecto beatae vitae dicta sunt explicabo.
THREE:The object, therefore, of this chapter is chiefly[70] negative, being none other than to raise such mistrust of mere custom, and so strong a sense of doubt, by the contradictions apparent in existing laws and theories, that the difficulties of their solution may tempt to some investigation of the principles on which they rest.
Perspiciatis unde omnis iste natus error sit voluptatem accu santium doloremque laudantium, totam rem aperiam, eaque ipsa quae ab illo inventore veritatis et quasi architecto beatae vitae dicta sunt explicabo.
THREE: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?
Perspiciatis unde omnis iste natus error sit voluptatem accu santium doloremque laudantium, totam rem aperiam, eaque ipsa quae ab illo inventore veritatis et quasi architecto beatae vitae dicta sunt explicabo.
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FORE:I know that those general principles which tend to enlighten and improve the human race are not absolutely useless that the enlightenment of nations is not without some effect on their rulers provided that the prerogative of the latter, their power, their security, their authority, their safety, is not touched thereby. I know well that this general enlightenment, so much boasted of, is a beautiful and glorious chimera, with which philosophers love to amuse themselves, but which would soon disappear if they would open history, and see therefrom to what causes improved institutions are due. The nations of antiquity have passed, and those of the present will pass, before philosophy and its influence have reformed a single government.
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FORE:Lastly, the surest but most difficult means of preventing crimes is to improve educationa subject too vast for present discussion, and lying beyond the limits of my treatise; a subject, I will also say, too intimately connected with the nature of government for it ever to be aught but a barren field, only cultivated here and there by a few philosophers, down to the remotest ages of public prosperity. A great man, who enlightens the humanity that persecutes him, has shown in detail the chief educational maxims of real utility to mankind; namely, that it consists less in a barren multiplicity of subjects than in their choice selection; in substituting originals for copies in the moral as in the physical phenomena presented by chance or intention to the fresh minds of youth; in inclining them to virtue by the easy path of feeling;[251] and in deterring them from evil by the sure path of necessity and disadvantage, not by the uncertain method of command, which never obtains more than a simulated and transitory obedience.
CHAPTER XXIV. THE MEASURE OF PUNISHMENTS.Accordingly he made a rapid journey back, leaving his companion to visit England alone; this expedition to Paris being the only event that ever broke the even tenor of his life. His French friends rather deserted him, Morellet in his memoirs going even so far as to speak of him as half-mad. But it was to his[25] friendship with the Verris that this journey to Paris was most disastrous, and nothing is more mournful than the petty jealousies which henceforth completely estranged from him his early friends. The fault seems to have rested mainly with the two brothers, whose letters (only recently published) reveal an amount of bitterness against Beccaria for which it is difficult to find any justification, and which disposes for ever of all claims of their writers to any real nobleness of character.[9] They complain to one another of Beccarias Parisian airs, of his literary pride, of his want of gratitude; they rejoice to think that his reputation is on the wane; that his illustrious friends at Paris send him no copies of their books; that he gets no letters from Paris; nay, they even go so far as to welcome the adverse criticisms of his Dei Delitti, and to hope that his golden book is shut up for ever.[10] Alessandro writes to his brother that all his thoughts are turned to the means of mortifying Beccaria; and the revenge the brothers think most likely to humiliate him is for Alessandro to extend the limits of his travels, so as to compare favourably with Beccaria in the eyes of the Milanese. They delight in calling him a madman, an imbecile, a harlequin; they lend a ready ear to all that gossip says in his[26] discredit.[11] In the most trifling action Pietro sees an intended slight, and is especially sore where his literary ambition is touched.[12] It angers him that Beccaria should receive praise for the Apology written against Facchinei, the work having been entirely written by himself, with some help from his brother, but with not so much as a comma from the hand of Beccaria.[13] Some books which Beccaria had brought to him from Paris he imagined were really gifts to him from the authors; he believed that DAlembert had sent him his Mlanges of his own accord, not at the request of Beccaria, as the latter had represented; but even Alessandro admits that it was concerning the books, as Beccaria had said.[14] In short, the whole correspondence shows that Pietro Verri was extremely jealous of the success which he himself had helped his friend to attain, and that disappointed literary vanity was the real explanation of his suddenly transmuted affection.To return to the innocent bankrupt. Granting that his obligation should not be extinguishable by anything short of total payment; granting that he should not be suffered to withdraw from it without the[218] consent of the parties interested, nor to transfer under the dominion of other laws his industry, which should perforce be employed, under penalties, to enable him to satisfy his creditors in proportion to his profits; what fair pretext, I ask, can there be, such as the security of commerce or the sacred right of property, to justify the deprivation of his liberty? Such a deprivation is only of use, when it is sought to discover the secrets of a supposed innocent bankrupt by the evils of servitude, a most unusual circumstance where a rigorous inquiry is instituted. I believe it to be a maxim in legislation, that the amount of political inconveniences varies directly in proportion to the injury they do the public, and inversely in proportion to the difficulty of their proof.
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