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is to become less the greater the atrocity of the alleged crime, or the greater the improbability of the circumstances, as, for example, in accusations of magic, gratuitous cruelty, etc. “According to the criminalists, however, the greater the atrocity of the crime the greater the credibility of the witness. Look at the iron maxim dictated by the most cruel stupidity: “In atrocissimis leviores conjecturae sufficiunt, et licet judici jura transgredi’ (In the most atrocious crimes [i.e. in the least probable] the slightest conjectures are enough, and the judge may exceed the law). Absurd legal practices are often the result of fear, which is the principal source of all human contradictions. Legislators (who are really only lawyers authorised by chance to decide about everything, and to become from interested and venal writers arbiters and legislators about the fortunes of men), alarmed by the condemnation of some innocent person, have loaded jurisprudence with superfluous formalities and exceptions, the exact observance of which would cause anarchy to sit with impunity on the throne of justice. In their fright at some crimes of an atrocious nature and difficult to prove, they thought themselves under the necessity of getting over the formalities established by themselves; and so, now with despotic impatience, now with feminine timidity, they have transformed grave trials into a kind of play, in which hazard and subterfuge act the principal part.” " Where there are accomplices, the practice of promising impunity to one of them, if he should turn “King's evidence,” has disadvantages as well as some advantages. It amounts to a national authorisation of treachery; “for crimes of courage are less pernicious to a people than crimes of cowardice, courage being no ordinary quality, and needing only a beneficent directing force to make it conduce to the public welfare, whilst cowardice is more common and contagious, and always more self-centred than the other.”” Also, a court thus having recourse to the aid of the law-breaker proclaims its own uncertainty and the weakness of the laws themselves. As to advantages, the practice may, in some measure, tend to prevent crimes, and to show that he who breaks his faith to the laws, that is to the public, is likely also to violate it in private life. However, if by reason of a general law impunity should be offered in such cases, then the informer should be afterwards banished. “But to no purpose do I torment
myself to dissipate the remorse I feel in authorising the inviolable laws, the monument of public confidence, the basis of human morality, to resort to treachery and dissimulation.” " One of the most noteworthy features of Beccaria's condemnation of existing methods is the firm stand he made against that part of the inquisitorial procedure involving the much abused administration of oaths to prisoners, and the infliction of torture. “The experience of all ages has shown that men have abused religion more than any other of the precious gifts of heaven; and for what reason should criminals respect it, when men esteemed as the wisest have often violated it? Why place men in the terrible dilemma of either sinning against God or concurring in their own ruin? The law, in fact, which enforces such an oath commands a man either to be a bad Christian or to be a martyr. The oath becomes gradually a mere formality, thus destroying the force of religious feelings. No oath has ever yet made any criminal speak the truth.” " Torture is useless, wrong, barbarous; it is conducive to false conclusions, and is worse for the innocent than the guilty, for the physically feeble than the robust, “A cruelty consecrated among most nations by custom is the torture of the accused during his trial, on the pretext of compelling him to confess his crime, of clearing up contradictions in his statements, of discovering his accomplices, of purging him in some metaphysical and incomprehensible way from infamy, or finally of finding out other crimes of which he may possibly be guilty, but of which he is not accused.” To inflict a punishment on a citizen before his guilt has been determined is a right merely of might. . . . “Either the crime is certain or uncertain. If certain, no other punishment is suitable for it than that affixed to it by law; and torture is useless, for the same reason that the criminal's confession is useless. If it is uncertain, it is wrong to torture an innocent person, such as the law adjudges him to be, whose crimes are not yet proved. . . . “. . . It is to seek to confound all the relations of things to require a man to be at the same time accuser and accused, to make pain the crucible of truth, as if the test of it lay in the muscles and sinews of an unfortunate wretch. The law that ordains the use of torture is a law that says to men: “Resist pain; and if Nature has created in you an inextinguishable selflove, if she has given you an inalienable right of self-defence, I create in you a totally contrary affection, namely, an heroic self-hatred, and I command you to accuse yourselves, and to speak the truth between the laceration of your muscles and the dislocation of your bones.’ “This infamous crucible of truth is a still-existing monument of that primitive and savage legal system, which called trials by fire and boiling water, or the accidental decisions of combat, ‘judgments of God,” as if the rings of the eternal chain in the control of the First Cause must at every moment be disarranged and broken for the petty institutions of mankind. . . . “Torture is a certain method for the acquittal of robust villains and for the condemnation of innocent but feeble men.” The judge's train of reasoning may be put thus: “‘I, as judge, had to find you guilty of such and such a crime; you, A.B., have by your physical strength been able to resist pain, and therefore I acquit you; you, C.D., in your weakness have yielded to it, therefore I condemn you. I feel that a confession extorted amid torments can have no force; but I will torture you afresh, unless you corroborate what you have now confessed.’ “The result, then, of torture is a matter of temperament, of calculation, which varies with each man according to his strength and sensibility; so that by this method a mathematician might solve better than a judge this problem: “Given the muscular force and the nervous sensibility of an innocent man, find the degree of pain which will cause him to plead guilty to a given crime.' . . .” By the use of torture, an innocent man, as he has nothing to gain, is placed in a worse position than a guilty one. “. . . A confession made under torture is considered of no avail unless it be confirmed by an oath made after it; and yet, should the criminal not confirm his confession, he is tortured afresh. Some doctors of law and some nations allow this infamous begging of the question to be employed only three times; whilst other nations and other doctors leave it to the discretion of the judge. . . . “The second pretext for torture is its application to supposed criminals who contradict themselves under examination, as if the fear of the punishment, the uncertainty of the sentence, the legal pageantry, the majesty of the judge, the state of ignorance that is common alike to innocent and guilty, were not enough
*$ 14. * $ 11.
to plunge into self-contradiction both the innocent man who is afraid, and the guilty man who seeks to shield himself; as if contradictions, common enough when men are at their ease, were not likely to be multiplied when the mind is perturbed and wholly absorbed in the thought of seeking safety from imminent peril.” "
(vi) PREVENTION OF CRIMES
Beccaria points out that it is a useless, destructive policy for governments to busy themselves with punishing crimes, and to neglect their prevention. Laws prescribing penalties are wanting in justice if they fail to make the best provisions available in order to prevent the offences they punish. Certain classes of crime are, indeed, more easily preventable than discoverable.
“It is better,” says our author at the close of his treatise, “to prevent crimes than to punish them. This is the chief aim of every good system of legislation, which is the art of leading men to the greatest possible happiness or to the least possible misery, according to the calculations of all the goods and evils of life. But the means hitherto employed for this end are for the most part false and contrary to the end proposed. It is impossible to reduce the turbulent activity of men to a geometrical harmony without any irregularity or confusion. As the constant and most simple laws of nature do not prevent aberrations in the movements of the planets, so, in the infinite and contradictory attractions of pleasure and pain, disturbances and disorder cannot be prevented by human laws. Yet this is the chimera that narrowminded men pursue, when they have power in their hands. To prohibit a number of indifferent acts is not to prevent the crimes that may arise from them, but it is to create new ones from them; it is to give capricious definitions of virtue and vice which are proclaimed as eternal and immutable in their nature. To what should we be reduced if everything had to be forbidden us which might tempt us to a crime? It would be necessary to deprive a man of the use of his senses. For one motive that drives men to commit a real crime there are a thousand that drive them to the commission of those indifferent acts which are called crimes by bad laws; and if the likelihood of crimes is proportioned to the number of motives to commit them, an increase of the field of crimes is an increase of the likelihood of their commission. . . .
* $ 12.
“Would you prevent crimes, then cause laws to be clear and simple, bring the whole force of a nation to bear on their defence, and suffer no part of it to be busied in overthrowing them. Make the laws to favour not so much classes of men as men themselves. Cause men to fear the laws and the laws alone. Salutary is the fear of the law, but fatal and fertile in crime is one man's fear of another. Men as slaves are more sensual, more immoral, more cruel than free men; and, whilst the latter give their minds to the sciences or to the interests of their country, setting great objects before them as their model, the former, contented with the passing day, seek in the excitement of libertinage a distraction from the nothingness of their existence, and, accustomed to an uncertainty of result in everything, they look upon the result of their crimes as uncertain too, and so decide in favour of the passion that tempts them. .
“Would you prevent crimes, then see that enlightenment accompanies liberty. The evils that flow from knowledge are in inverse ratio to its diffusion; the benefits directly proportioned to it. . . . Whoever has a sensitive soul, when he contemplates a code of well-made laws, and finds that he has only lost the pernicious liberty of injuring others, will feel himself constrained to bless the throne and the monarch that sits upon it. . . .
“If blind ignorance is less pernicious than confused halfknowledge, since the latter adds to the evils of ignorance those of error, which is unavoidable in a narrow view of the limits of truth, the most precious gift that a sovereign can make to himself or to his people is an enlightened man as the trustee and guardian of the sacred laws. Accustomed to see the truth and not to fear it; independent for the most part of the demands of reputation, which are never completely satisfied and put most men's virtue to a trial; used to consider humanity from higher points of view: Such a man regards his own nation as a family of men and of brothers, and the distance between the nobles and the people seems to him so much the less as he has before his mind the larger total of the whole human species.” Philosophers acquire wants and interests unknown to the generality of men, but that one above all others, of not belying in public the principles they have taught in obscurity, and they gain the habit of loving the truth for its own sake. A selection of such men makes the happiness of a people, but a happiness which is only transitory, unless
* It is Beccaria, a noble himself, who writes thus. F