It has already been remarked by Montesquieu that public accusations are more suited to republics, where the public good ought to be the citizens’ first passion, than to monarchies, where such a sentiment is very feeble, owing to the nature of the government itself, and where the appointment of officers to accuse transgressors of the law in the name of the public is a most excellent institution. But every government, be it republican or monarchical, ought to inflict upon a false accuser the same punishment which, had the accusation been true, would have fallen upon the accused.
These are some of the difficulties of the subject, which teach us the necessity of constant open-mindedness with regard to all ideas or practices connected with criminal law. But, would we further examine our established notions, we should consider a statement from Hobbes which goes to the very root of the theory of punishment.
Two other fatal consequences flow from the cruelty of punishments, and are contrary to their very purpose, the prevention of crimes. The first is, that it is not so easy to preserve the essential proportion between crime and punishment, because, however much a studied cruelty may diversify its forms, none of them can go beyond the extreme limit of endurance which is a condition of the human organisation and sensibility. When once this extreme limit is attained, it would be impossible to invent such a corresponding increase of punishment for still more injurious and atrocious crimes as would be necessary to prevent them. The other consequence is, that impunity itself arises from the severity of punishments. Men are restrained within limits both in good and evil; and a sight too atrocious for humanity can only be a passing rage, not a constant system, such as the laws ought to be; if the latter are really cruel, either they are changed, or themselves give rise to a fatal impunity.
Beccaria would certainly have done better not to have gone to Paris at all. His letters to his wife during his absence show that he was miserable all the time. In every letter he calculates the duration of time that will elapse before his return, and there is an even current of distress and affection running through all the descriptions of his journey. The assurance is frequent that but for making himself ridiculous he would return at once. From Lyons he writes that he is in a state of the deepest melancholy; that even the French theatre he had so much looked forward to fails to divert him; and he begs his wife to prepare people for his speedy return by telling them that the air of France has a bad effect on his health.It was at one time said that the work really was Pietro Verri’s and not Beccaria’s, for it was published anonymously, and away from Milan. The domestic circumstances of Pietro lent some countenance to this story, as did also the fact that he charged himself with the trouble of making a correct copy of the manuscript, so that a copy of the treatise does actually exist in Pietro’s handwriting. The story, however, has long since been disproved; yet to show the great interest which Pietro took in the work, and the ready assistance he gave to his friend, a letter to him from Beccaria, with respect to the second edition, deserves mention, in which Beccaria begs him not only to revise the spelling correctly, but generally to erase, add, and correct, as he pleases. It would appear that he was already tired of literary success, for he tells his friend, that but for the motive of preserving his esteem and of affording fresh aliment to their friendship, he should from indolence prefer obscurity to glory itself.
But there was another side to the brightness of this success. In literature as in war no position of honour can be won or held without danger, and of this Beccaria seems to have been conscious when he pleaded against the charge of obscurity, that in writing he had had before his eyes the fear of ecclesiastical persecution. His love for truth, he confessed, stopped short at the risk of martyrdom. He had, indeed, three very clear warnings to justify his fears. Muratori, the historian, had suffered much from accusations of heresy and atheism, and had owed his immunity from worse consequences chiefly to the liberal protection of Pope Benedict XIV. The Marquis Scipio Maffei had also incurred similar charges for his historical handling of the subject of Free-will. But there was even a stronger warning than these, and one not likely to be lost on a man with youth and life before him; that was the fate of the unfortunate Giannone, who, only sixteen years before Beccaria wrote, had ended with his life in the citadel of Turin an imprisonment that had lasted twenty years, for certain observations on the Church of Rome which he had been rash enough to insert in his ‘History of Naples.’
One thing that might be done, which would also serve at the same time to keep a prisoner’s family from want, the main source of crime, would be the formation of a Prisoners’ Fund, for his and their benefit. For this there is a precedent in a quite recent Act. For the Act, which abolished the forfeiture of a felon’s property, enabled the Crown to appoint an administrator of it, for the benefit of the persons injured by the crime and the felon’s family, the property itself and its income reverting ultimately to the convict or to his representatives. There could, however, be no objection in justice to the forfeiture of a proportionate part of every felon’s property, such forfeiture to be dedicated to the formation of a fund, out of which assistance should be given, both to the families of prisoners during their custody and to the prisoners themselves on their discharge. Such a fund might be still further increased by the substitution of a lien on a man’s wages or income for many minor offences now punished, but not prevented, by imprisonment.Yet Lord Ellenborough was one of the best judges known to English history; he was, according to his biographer, a man ‘of gigantic intellect,’ and one of the best classical scholars of his day; and if he erred, it was with all honesty and goodness of purpose. The same must be said of Lord Chief Justice Tenterden’s opposition to any change in the law of forgery. His great merits too as a judge are matter of history, yet when the Commons had passed the bill for the abolition of capital punishment for forgery, Lord Tenterden assured the House of Lords that they could not ‘without great danger take away the punishment of death.’ ‘When it was recollected how many thousand pounds, and even tens of thousands, might be abstracted from a man by a deep-laid scheme of forgery, he thought that this crime ought to be visited with the utmost extent of punishment which the law then wisely allowed.’ The House of Lords again paused in submission to judicial authority.What influence have they on customs?
But (he goes on) since it would be an absurd folly to expect this general revolution, this general reconstruction, which could only be effected by very violent means, such as would be at least a very great misfortune for the present generation, and hold out an uncertain prospect of compensation for the next one, every speculative work, like the ‘Dei Delitti e delle Pene,’ enters into the category of Utopias, of Platonic Republics and other ideal governments; which display, indeed, the wit, the humanity, and the goodness of their authors, but which never have had nor ever will have any influence on human affairs.…
The following letter by Beccaria to the Abbé Morellet in acknowledgment of the latter’s translation of his treatise is perhaps the best introduction to the life and character of the author. The letter in question has been quoted by Villemain in proof of the debt owed by the Italian literature of the last century to that of France, but from the allusions therein contained to Hume and the ‘Spectator’ it is evident that something also was due to our own. Beccaria had spent eight years of his youth in the college of the Jesuits at Parma, with what sense of gratitude this letter will show. The following is a translation of the greater part of it:—
CHAPTER XVII. BANISHMENT AND CONFISCATIONS.
But whatever tendency might have been arising in theory or in practice about this time to mitigate the severity of our laws was destined to receive a dead check from the publication in 1784 and 1785 respectively of two books which deserve historical recollection. The first was Madan’s ‘Thoughts on Executive Justice,’ in which the author, adopting Beccaria’s principle of the certainty of punishment as the best check on crime, advocated an unflinching carrying out of the laws as they stood. ‘It was,’ says Romilly, ‘a strong and vehement censure upon the judges and the ministers for their mode of administering the law, and for the frequency of the pardons which they granted. It was very much read, and certainly was followed by the sacrifice of many lives.’详情
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