Our laws prohibit suggestive (leading) questions in a lawsuit: those, that is (according to the doctors of law), which, instead of applying, as they should do,[145] to the genus in the circumstances of a crime, refer to the species; those, in other words, which from their immediate connection with a crime suggest to the accused a direct answer. Questions, according to the criminal lawyers, ought, so to speak, to envelop the main fact spirally and never to attack it in a direct line. The reasons for this method are, either that an answer may not be suggested to the accused which may place him face to face with the charge against him, or perhaps because it seems unnatural for him directly to criminate himself. But, whichever of these reasons it may be, the contradiction is remarkable between the existence of such a custom and the legal authorisation of torture; for what interrogatory can be more suggestive than pain? The former reason applies to the question of torture, because pain will suggest to a strong man obstinate silence, in order that he may exchange the greater penalty for the lesser, whilst it will suggest to a weak man confession, in order that he may escape from present torment, which has more influence over him than pain which is to come. The other reason evidently applies too, for if a special question leads a man to confess against natural right, the agonies of torture will more easily do the same. But men are more governed by the difference of names than by that of things.
FORE:The greater the number of those who understand and have in their hands the sacred code of the laws, the fewer will be the crimes committed; for it is beyond all doubt that ignorance and uncertainty of punishments lend assistance to the eloquence of the passions. Yet what shall we think of mankind, when we reflect, that such a condition of the laws is the inveterate custom of a large part of cultivated and enlightened Europe?
FORE:Among other abuses of grammar, which have no slight influence on human affairs, that one is notable which makes the evidence of a condemned criminal null and void. He is dead civilly say gravely the peripatetic lawyers, and a dead man is incapable of any action. In support of this silly metaphor many[139] victims have been sacrificed, and it has very often been disputed with all seriousness whether the truth should not yield to judicial formulas. Provided that the testimony of a condemned criminal does not go to the extent of stopping the course of justice, why should not a fitting period be allowed, even after condemnation, both to the extreme wretchedness of the criminal and to the interests of truth, so that, by his adducing fresh matter to alter the complexion of the fact, he may justify himself or others in a new trial? Forms and ceremonies are necessary in the administration of justice, because they leave nothing to the free will of the administrator; because they give the people an idea of a justice which is not tumultuary and self-interested, but steadfast and regular; and because men, the slaves of habit and imitation, are more influenced by their feelings than by arguments. But such forms can never without fatal danger be so firmly fixed by the laws as to be injurious to truth, which from being either too simple or two complex needs some external pomp to conciliate the ignorant populace.The year before its publication 51 malefactors were executed in London, the year after 97, whilst not long afterwards was seen the rare spectacle of nearly 20 criminals hung at a time. Romilly was so much shocked at what he considered the folly and inhumanity of Madans book that he wrote a short tract of observations upon it, of which he sent a copy to each of the judges. But it is characteristic of the feeling of that time that only a hundred copies of his tract were sold. It was, however, from that time that Romilly began to make the criminal law his special study, so that to Madan indirectly our country owes the efforts of Romilly.
ONE: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 forgers hand or of a calumniators tongue[79] by an iron instrument before the public gaze as good and efficient punishments for forgery and slander.
TWO:There was little of eventfulness in Beccarias life, and the only episode in it of interest was his visit to Paris in 1766. Thither he and his friend Pietro had been invited by Morellet, in the name of the philosophers at Paris, and thither he started in October 1766; not with Pietro, who could not leave Milan, but with Alessandro Verri, on a journey which was to include London as well as Paris, and was to occupy in all a period of six months. From political morality, unless founded on the immutable sentiments of mankind, no lasting advantage can be hoped. Whatever law deviates from these sentiments will encounter a resistance which will ultimately prevail over it, just in the same way as a force, however slight, if constantly applied, will prevail over a violent motion applied to any physical body.
THREE: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.
FORE:The few select friends who made life at Milan just supportable were Pietro and Alessandro Verri, Frisi, and some others. Pietro Verri was ten years older than Beccaria, and it was at his instance that the latter wrote his first treatise on a subject which then demanded some attention, namely, The Disorders and Remedies of the Coinage. This work was published two years before the Crimes and Punishments, but though it provoked much discussion at the time, it has long since ceased to have any interest.DEI DELITTI E DELLE PENE. TO THE READER.
[43] One of the greatest preventives of crimes is, not the cruelty of the punishments attached to them, but their infallibility, and consequently that watchfulness on the part of the magistrates and that inexorable severity on the part of the judge which, to be a useful virtue, must coincide with a mild system of laws. The certainty of a punishment, moderate though it be, will ever make a stronger impression than the fear of another, more terrible, perhaps, but associated with the hope of impunity; for even the least evils when certain always terrify mens minds, and hope, that gift of heaven, which often makes up to us for everything, always throws into the distance the idea of greater evils, especially when its force is increased by impunity, which avarice and weakness so often grant.But if the interest of Beccarias chapter on Torture is now merely historical, an interest that is actual still attaches to his advocacy of the total abolition of capital punishment, this being the cause with which his name is most generally associated, and for which it is likely to be longest remembered. Previous writers, like Montaigne, if they deprecated the excess or severity of the death penalty, never thought of urging that it should be abolished altogether.It is incomparably better to prevent crimes than to punish them.The multiplication of the human race, slight in the abstract, but far in excess of the means afforded by nature, barren and deserted as it originally was, for the satisfaction of mens ever increasing wants, caused the first savages to associate together. The first unions necessarily led to others to oppose them, and so the state of war passed from individuals to nations.My country is quite immersed in prejudices, left in it by its ancient masters. The Milanese have no pardon for those who would have them live in the eighteenth century. In a capital which counts 120,000 inhabitants, you will scarcely find twenty who love to instruct themselves, and who sacrifice to truth and virtue. My friends and I, persuaded that periodical works are among the best means for tempting to some sort of reading minds incapable of more serious application, are publishing in papers, after the manner of the English Spectator, a work which in England has contributed so much to increase mental culture and the progress of good sense. The French philosophers have a colony in[7] this America, and we are their disciples because we are the disciples of reason, &c.
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