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least thought of or the least desired of all. An uneasy and petty spirit, the timid prudence of the present moment, and a circumspect stiffness against innovations, master the feelings of those who govern the complex actions of mankind.” " Among the offences of the third class are especially those against the public peace and civic tranquillity. Here effective police organisation—not according to the directions of arbitrary power but depending on a regularly established and public code —will be the best preventive.” Two or three offences demand special consideration. Suicide is a crime for which punishment proper seems inadmissible. It is a fault which should be left to the justice of God. Selfslaughter is a less evil to society than permanent departure from the country; for in the former case the substance of the deceased remains within his own state, in the latter it is transported to
foreign territory. But it is both useless and unjust to make a v
prison of the state. The best way to keep men in their country is to augment the relative welfare of each of them.” Again, there are certain crimes difficult to prove, e.g. adultery, pederasty, infanticide, which call rather for preventive measures than for indiscriminate punishment. “Where marriages are governed by hereditary prejudices, or bound or loosened by parental power, there the chains are broken by secret intrigue, in despite of ordinary morality which, whilst conniving at the causes of the offence, makes it its duty to declaim against the results.” “ In general, the penalty attached to a misdeed, which by its nature frequently escapes punishment, constitutes an additional incentive thereto. “It is a quality of our imagination, that difficulties, if they are not insurmountable or too difficult, relatively to the mental energy of the particular person, excite the imagination more vividly, and place the object desired in larger perspective; for they serve, as it were, as so many barriers to prevent an erratic and flighty fancy from quitting hold of its object; and while they compel the imagination to consider the latter in all its bearings, it attaches itself more closely to the pleasant side, to which our mind most naturally inclines, than to the painful side, which it places at a distance.”" In the case of infanticide, the most effective way of preventing it “would be to give efficient legal protection to weakness against tyranny, which exaggerates those vices that cannot be hidden by the cloak of virtue.” In
* $ 32. *$ 33. * $35. * $ 36. * Ibid.
conclusion Beccaria adds: “I do not pretend to diminish the I just wrath these crimes deserve; but in indicating their sources,
I think myself justified in drawing one general conclusion, and
that is, that no punishment for a crime can be called strictly
just—that is, necessary—so long as the law has not adopted the
best possible means, in the circumstances of a country, to prevent the crimes it punishes.” "
(iv) SOME PUNISHMENTS CONSIDERED
Infamy, as a mark of disapprobation, depriving a delinquent of the good-will, sympathy, and confidence of his fellow-citizens, ought to depend not merely on the laws, but also on public ideas of morality and honour. In certain cases, Beccaria would urge, the ban of public opinion might be more appropriate and effective than the fixed sanctions of positive law. But careful discrimination is of the utmost importance; for whosoever pronounces actions to be infamous that are in themselves indifferent, detracts from the infamy of actions that are intrinsically infamous. For offences having their foundation in pride and drawing from pain itself their glory and nutriment, ridicule and infamy are more fitting penalties than corporal or other physically painful punishments.
We must not make use of such a public stigma too frequently, or allow it to fall upon too many persons at a time; for its frequency would weaken the force of public opinion, and the disgrace of many would resolve itself into the disgrace of none.”
Banishment is a legitimate mode of dealing with those who disturb the public peace or disobey the laws. It may well be employed in the case of those accused of an atrocious crime, whose guilt is probable but not certain; so that the sacred right of establishing his innocence is left to him. (It is remarkable that the writer, who so strongly denounces the aberrations of criminal procedure and evidence and condemns the abuses of the right of asylum, proposes this measure where a clear conviction cannot be obtained.) Should an exile be also deprived of his property? In certain circumstances, the whole or part or none of a man's property should be taken away, as the case may be, according to the nature of his crime. But such property should pass to his lawful heirs rather than to the sovereign. It has been held by some (says Beccaria) that confiscation has operated
* $ 36. * $18.
as a check on acts of vengeance and on the great power of individuals; they have, however, neglected to consider that “ whatever good may be effected by punishment, it is not for that reason alone just, for to be just it must also be necessary. A legislator desirous of closing all doors against tyranny, cannot tolerate expedient justice. Indiscriminate and absolute confisca- . tion of property places a price on the heads of the feeble, causes the innocent to suffer the punishment of the guilty, and makes the perpetration of crimes a desperate necessity even for the innocent." In regard to the question of capital punishment the name of our author will ever be remembered. He was the first noteworthy writer to contest the very legitimacy of the death penalty. In that respect his point of view is markedly different from that of his contemporaries, and dissociates him even from reforming spirits like Montesquieu, Voltaire, Rousseau, Diderot, whom he regarded as his masters. Montesquieu–the worthy magistrate— holds that the death penalty is just, if imposed by the law; for a culprit cannot complain of suffering a punishment at the hands of society which has conferred advantages on him and has given him protection. Rousseau observes that the delinquent violating the social compact puts himself outside the law, and returns to the primitive state of war, the very object of which is to inflict death, “attendu que la vie d'un citoyen n'est passeulement un don'de la nature, mais aussi un bienfait conditionnel accordé par 1'État" —a strange assertion by one who had maintained that a captured enemy could not legitimately be put to death, if it was possible to keep him in slavery.” Beccaria's firm attitude is conspicuously opposed to the tendencies of his time, when more and more offences were everywhere made capital, when men's lives were taken without compunction, and almost at random. By what kind of right, asks Beccaria," do men slaughter their fellow-beings in cold blood? Certainly not by the right that is the source of sovereignty and the laws, which are but the totality of the smallest portions of individual liberty, and represent the general will, that is, the aggregate of individual wills. A man is not the creator of his own life; hence it is beyond his power to assume to himself or to confer on society the right to take it away. The infliction of the capital penalty, therefore, is not
* $ 17. * Contrat social, liv. ii, chap. v. *Ibid., liv. i, chap. iv. • $ 16.
based on an undoubted right; at most it is of the nature of a war made by a nation against one of its members, on the ground that his destruction is deemed necessary and expedient. But his death is neither necessary nor expedient. The death of a citizen can be deemed necessary or just only for two reasons: first, when his existence threatens a dangerous revolution in the form of government established by the wishes of a united nation, and secondly, when the taking of his life is the only effective measure possible to deter others from committing crimes. Now history everywhere shows that the prescription of this supreme penalty has never thus diverted the passions of desperate men. The idea of the duration of a punishment has a more potent influence on the mind of a would-be malefactor than that of its brief intensity; human sensibility is more easily and enduringly affected by slight but repeated impressions than by a stronger but briefer shock. “The mind of man offers more resistance to violence and to extreme but brief pains, than it does to time and incessant weariness; for whilst it can, so to speak, gather itself together for a moment to repel the former, its vigorous elasticity is insufficient to resist the long and repeated action of the latter.”” “Very many men face death calmly and firmly, some from fanaticism, some from vanity, which almost always attends a man to the tomb; others from a last desperate attempt either no longer to live or to escape from their misery.” ” The thief or the assassin, face to face with the supreme sanction, sometimes reasons thus: “Of what sort are these laws that I am bound to observe, that leave so great an interval between myself and the rich man? He denies me the penny I ask of him, and excuses himself by ordering from me a work of which he himself knows nothing. Who has made these laws? Were they not made by rich and powerful men, who have never deigned to visit the wretched hovels of the poor, who have never divided a musty loaf of bread amid the innocent cries of famished children and the tears of a wife? Let us break these bonds, which are fatal to the greater number, and only useful to a few indolent tyrants; let us attack injustice in its source. I will return to my state of natural independence; I will live for some time happy and free on the fruits of my courage and address; and if the day should ever come when I have to suffer and repent for it, the time of suffering will be short, and I shall have one day
* $ 16. * Ibid.
of misery for many years of liberty and pleasure. . . .”.” And this brief moment of misery is further compensated by religion which, by offering him an opportunity for a facile repentance and the balm of consolation, does much, for him as for those contemplating his fate, to diminish the horror of the final tragedy. “Capital punishment becomes a spectacle for the majority of mankind, a subject for compassion and abhorrence for others; the minds of the spectators are more filled with those feelings than with the wholesome terror the law pretends to inspire. . . . The limit that the legislator should affix to the severity of penalties appears to lie in the first signs of a feeling 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.” " Now moderate and continuing penalties inspire men rather with fear of the law than with compassion for an executed victim. So that, in that respect, penal servitude is preferable to capital punishment. But there are more vital reasons in its favour. It is in reality, as the above considerations indicate, a greater deterrent than death. It is even a more painful punishment. It offers to others an ever-present example. It impresses more effectually than the sight of a momentary punishment, which from its very nature tends rather to harden than to correct. It has more terrors for those who see it than for him who suffers it; for the former think of the whole sum of unhappy moments to be borne, whilst the latter, through the unhappiness of the present moment, has his thoughts diverted from what is to come. All evils are magnified in the imagination of spectators who, in considering a given punishment, have a tendency to substitute their own sensibility for the more hardened disposition of a criminal. The example of barbarity presented by the legalised shedding of human blood, surrounded as the operation is by gruesome formalities, is subtly injurious to the interests of the nation at large. “To me it seems an absurdity, that the laws, which are the expression of the public will, which abhor and which punish murder, should themselves commit one; and that, to deter citizens from private assassination, they should themselves order a public murder.” Capital punishment, then, is not absolutely necessary. “Men in their most secret hearts have ever believed that their lives lie at no one's disposal, save at that of necessity alone, which, with its iron sceptre, rules the universe.”
1 § 16. * Ibid.