Imágenes de páginas
PDF
EPUB

good laws so increase their number as to lessen the probability, always considerable, of an unfortunate choice. “Another way of preventing crimes is to interest the magistrates who carry out the laws in seeking rather to preserve than to corrupt them. The greater the number of men who compose the magistracy, the less danger will there be of their exercising any undue power over the laws. . . .” Subjects are to be accustomed to fear rather the laws than the magistrates. “Another way to prevent crimes is to reward virtue. On this head I notice a general silence in the laws of all nations to this day. If prizes offered by academies to the discoverers of useful truths have caused the multiplication of knowledge and of good books, why should not virtuous actions also be multiplied, by prizes distributed out of the munificence of the sovereign? . . . “Lastly, the surest but most difficult means of preventing crimes is to improve education ”—a subject that is “intimately connected with the nature of government. . . .” He points out that the kind of subjects of instruction is more important than their multiplicity, and that the people's recognition of utility and necessity will have a greater influence on their conduct than can have “the uncertain method of command, which never obtains more than a simulated and transitory obedience.” " To sum up the essence of his penal doctrine, Beccaria presents

the following grand conclusion: “In order that every punish-,

ment may not be an act of violence committed by one man or by many against a single individual, it ought to be above all things public, speedy, necessary, the least possible in the given circumstances, proportioned to its crime, dictated by the laws.” "

[ocr errors]

CHAPTER IV
BECCARIA’s INFLUENCE AND ACHIEVEMENTS

AMong the numerous translations of Beccaria's treatise there was one (the translation of Morellet, together with Diderot's notes and the correspondence of Beccaria and Morellet) issued by Roederer, who was at the time a member of the Directory. He sent a copy in May 1798 to the late author's daughter, Giulia. In the accompanying letter Roederer points out Beccaria's own acknowledgment of the influence exercised on him by the French philosophers, and of his sources of inspiration in the composition of his work. He goes on to say that the book made a profound impression in France, where the most eminent men, such as D'Alembert, Buffon, Voltaire, and others, paid homage to it; that it did much to transform the spirit of the French criminal courts even ten years before the Revolution; that all the younger magistrates of the courts (and he himself was one of them) pronounced their judgments in conformity with the principles enunciated in that work rather than in accordance with the existing laws; that it was from the Dei Delitti that men like Servan and Dupaty obtained their views; and that the newly constituted penal legislation in France was much indebted to it.

It might be said, indeed, that Beccaria's small book had considerably hastened the approaching revolution in France. It became, to a large extent, a manual of the principal leaders and the ardent legislative reformers. By presenting an incisive criticism of the arrant folly and unrestrained abuse of the prevailing law and administration, by expounding the fundamental principles of a more rational, a more human jurisprudence, consistently and uncompromisingly based on necessity, justice, utility, public welfare, the work sent an astonishing ray of light into the obscure recesses of the complex mass of criminal law, and contributed much to arouse in France a spirit of dissatisfaction, and ultimately a general revolt. One of the first reforms

to which the Constituent Assembly directed its attention was the preparation of a criminal code grounded on the suggestions of Beccaria. As will be shown presently, the work left its mark—and an indelible one, too—in many other parts of the world. It came, of course, at an opportune moment. As soon as it appeared, it was recognised by discerning minds as an unanswerable and irresistible appeal to nations, too long befogged, harassed, and devitalised as they were by their self-stultifying systems. It at once pronounced a death sentence on the existing irrational institutions, and suggested in striking outlines a plan of radical reconstruction. We must admit, however, that had it not been for the fact that the time was ripe for proposals of amelioration, and men's minds were much more eager than they were before to entertain new conceptions, it would have been difficult to explain the extraordinary influence exercised by the slender production of a young man, a stranger to the regular juridical studies, one not deeply versed in historical lore, and with no experience of criminal matters. The poet says that there is a tide in the affairs of men which taken at the flood leads on to fortune. Beccaria took the tide at the flood, and so acquired fame, if not fortune. Thus, strictly speaking, he is not—he cannot have been—an absolute originator in all parts of his discourse. The original character of his book lies rather in its terse aphoristic exposition of fundamental principles, its vivid engaging style, its avoidance of voluminous technical commentaries, its simple unified structure, within a small compass, of a series of irrefutable arguments based on universal reasons and common sense, and manifestly animated by profound feeling. To appreciate fully the importance and widespread influence of the treatise, it must be looked at in due perspective. We must remember that although it possesses permanent intrinsic interest, irrespective of time and place, it was, for the most part, a propagandist contribution; and as such it was so effective, its objects were so successfully attained, that many of the subjects it discusses now appear (apart from historical and literary interests) necessarily antiquated. For most of the reforms it advocated were almost everywhere established more or less speedily. A notable exception is, of course, in the case of capital punishment, which has, however, been entirely abolished in many countries of the world, and considerably restricted in the others. So that even here our author's influence or prevision was greater than it would at first sight appear

Let us see now what was Beccaria's relationship to the reform movement in general, and the effect on it produced by his work.

This progressive movement is seen, on the one hand, in publications of writers, and, on the other, in the legislative measures adopted by states. First then, with regard to the former. It has already been shown that various protests were made and books issued, before the appearance of the Dei Delitti, against the practice of torture and other cruel and irrational proceedings. In France, Voltaire had already made an attack on existing abuses before the Italian writer's book was published; but there is no doubt that the treatise had a very great influence on him, as we may readily see from the character and tone of his Commentary added to the French translation, and from his subsequent writings on criminal matters, which have already been mentioned. Nearly all his arguments in these are but expanded, elaborated statements, reinforced by examples and illustrations, of Beccaria's concisely expressed principles. There are two extant letters written by Voltaire to Beccaria; and of special interest here is the one addressed to him, May 30, 1768, regarding the latter's influence in raising up again the long-crushed sisters, reason and humanity, in stemming the tide of bigotry and fanaticism, and dealing a death-blow to cruelty—that malignant hand-maiden to religion. “. . . Vous avez aplani,” he observes, “la carrière de l'équité dans laquelle tant d'hommes marchent encore comme des barbares. Votre ouvrage a fait du bien et en fera. Wous travaillez pour la raison et pour l’humanité qui ont été toutes deux si longtemps écrasées. Vous relevez ces deux soeurs abattues depuis environ seize cent ans. Elles commencent enfin a marcher et à parler; mais dés qu’elles parlent, le fanatisme hurle. On craint d'être humain autant qu'on devrait craindre d'être cruel . . . Ils ont puni d'une mort épouvantable," précédée de la torture, ce qui ne méritait que six mois de prison. Ils ont commis un crime juridique. Quelle abominable jurisprudence que celle de ne soutenir la religion que par des bourreaux. Voilà donc ce qu'on appelle une religion de douceur et de charité! Les honnétes gens déposent leur douleur dans votre sein comme dans celui du vengeur de la nature humaine.”

In the parlement of Grenoble the eloquence of the advocategeneral Servan, his assault on the prevailing legislative abuses and demand of reform were inspired by Beccaria's reasoned condemnations, as was also the denunciation of Dupaty, advocategeneral of the parlement of Bordeaux, directed against the torture of three persons accused of theft (1785). Similarly, the defence of De Portes and Calas by Loiseau de Mauléon, an advocate of Paris, sets forth rational and humane views, in conformity with the new conceptions. Conservative and obstinate adherents of the old régime, men like Muyart de Vouglans and Jousse, endeavoured to defend the traditional system—but in vain. The school of Rousseaud de Lacombe had had its day; and the authority of the old oracles of criminal jurisprudence, such as Damhouder, Farinaccius, Covarruvias, Julius Clarus, Benedict Carpzov, was fast sinking. In this progressive movement the part played by Voltaire was a particularly conspicuous one, as has already been pointed out. Besides his attacks on public corruption, abuses of taxation, commercial restrictions, the power of priests, cases of serfdom, and many other matters that called for reform, and notwithstanding his lack of sympathy with democratic ideas, popular representation, and political equality, he devoted himself with all the insatiable ardour of his soul to expose, to ridicule, to denounce the monstrous absurdities of the penal code. He demanded, like Beccaria, the abolition of torture, of all forms of mutilation, of every kind of agonising or prolonged death. Like Beccaria, he laid emphasis on the extreme folly of prescribing a multiplicity of capital offences; he urged their restriction, though not necessarily—and here unlike Beccaria—their total abrogation. Like Beccaria, he showed the marked unwisdom of inflicting the same penalty of death for crimes of widely varying degrees of atrocity, and to giving, for example, a direct interest to the robber to assassinate his victim also. Like Beccaria too, he protested against the penalties inflicted for ecclesiastical offences, the grossly unjust practice of confiscating the offender's property whereby the innocent children were beggared for the misdeeds of their father, the severe imprisonment to which accused persons were subjected before their trial, and the interference with their right to prepare their defence. The influence of Voltaire extended beyond the boundaries of his own country to many foreign states. Among his friends, correspondents, or admirers there were several sovereigns—the Emperor Joseph II of Austria, who read many of his writings with delight, and directed the Abbé Casti (who had succeeded

* Referring to the death of La Barre.

« AnteriorContinuar »