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of counsel. In October 1795 the Convention passed the code of crimes and penalties, prepared by Merlin and Cambacérès, introducing further improvements in procedure, and allowing the accused to obtain the notes of the preliminary examination for purposes of his defence. The Code of Criminal Investigation of 1808 was a compromise, incorporating the rules as to pleading and judgment from the revolutionary legislation, and those concerning preliminary examination from the old ordinance of 1670. Following Beccaria's view—which in its strict form is as fallacious as it must be disastrous—the right of pardon by the executive was abolished (September 25–October 6, 1781). Some ten years earlier Brissot de Warville observed: “When legislation is good, free pardon is but a sin against the law.” And of course the Assembly took it for granted that their measures were good. The prerogative of pardon had certainly been abused; but instead of amending it they destroyed it altogether. It was soon found necessary to restore it, though in a restricted form (August 4, 1801). In the revolutionary doctrines as to punishment, the influence of Beccaria is likewise palpable. In the Declaration of the Rights of Man (1789) we read that the law has the right to repress only acts injurious to society, but must not ordain any penalties that are not evidently and strictly necessary. And the Constituent Assembly proclaimed (August 16–24, 1790) that punishments should be mitigated and proportioned to offences. In 1791, besides the suppression of all tortures, branding, mutilations, and needless humiliating inflictions, it was decreed that “the penalty of death is henceforth to consist simply in deprivation of life.” In October 1795 the Convention resolved: “The penalty of death will be abolished throughout the French Republic from the day of the proclamation of peace.” With regard to the practice of confiscation, which was so strongly condemned by Beccaria, a decree of January 1790 abrogated it, but it was soon restored, and not finally abolished till the Restoration. Turning to Spain, we notice that even this comparatively benighted country could not escape the progressive movement. In 1775 the “Novisima recopilacion ” prohibited the torture of an accused without the sentence having been previously pronounced, and exempted hidalgos therefrom. In Portugal the reforms of the Marquis of Pombal are noteworthy. G
In Denmark torture was abolished in 1771. In Russia, Catherine I abolished the gallows and the wheel. Elizabeth made a vow not to consign anyone to death, and she kept her word for twenty years of her reign. Catherine II, posing as the friend and protectress of the philosophers and flattered by their applause, resolved to reform the criminal law, and to establish a uniform penal code. Accordingly in 1767 she summoned to Moscow some 650 deputies from all parts of Russia to assist in the great task. In the instructions read to the assembly, as a basis for the proposed codification, the principles enunciated obviously recall Beccaria's doctrines, not only in their spirit, but even in their very letter. Some of these maxims of juridical and political philosophy, as well as of common sense, are as follows: Laws should be considered only as a means of conducting mankind to the greatest happiness. It is incomparably better to prevent crimes than to punish them. All punishment that is unnecessary to the maintenance of public safety is unjust. The aim of punishment is not to torment sensitive beings. Cruel punishments are useless, and often are iniquitous. Penalties should be equal and uniform throughout the state, and should be publicly and promptly applied. In methods of trial the use of torture * is contrary to sound reason; humanity cries out against the practice and insists on its abolition. In the ordinary state of society, the death of a citizen is neither useful nor necessary; it is justifiable only in the rarest cases, such as insurrection. Judgment must be nothing but the precise text of the law, and the office of the judge is to pronounce only whether the action is contrary or conformable to it. No one is to be arrested without legal proof. It is better to let ten guilty men go free than to condemn one innocent man. Would you prevent crimes, contrive that the laws favour less-different orders of citizens than each citizen in particular. Let men fear the laws and nothing but the laws. Would you prevent crimes, provide that reason and knowledge be more and more diffused. To conclude—the surest but most difficult method of making men better is by perfecting education.” These instructions,” from which we ourselves are not yet ** Torture was formally abolished in Russia by Alexander I in 1801.
* Cf. W. Tooke, Life of Catherine II (London, 1800), vol. i., pp. 441–448.
* The MS. of these instructions, in twenty-three pages written by the empress
herself, is preserved at the Imperial Academy of St. Petersburg, where there are also old copies of Beccaria's treatise in Latin, Russian, French, German, and Italian.
too advanced to learn something, were published and soon
on the establishment of the new constitution the memory of the
eminent Quaker is recalled in the application of the doctrines
"Cf. R. J. Turnbull, A visit to the Philadelphia prison . . . (Philadelphia, 1796).
and deliberate revolt. We can scarcely conceive that it should ever have been necessary to argue, to criticise, and suggest amendments as they did. Therefore, in considering the work of earlier innovators, whose ideas have been for the most part universally incorporated into actual practice, there is at first a tendency to regard it as antiquated, and so to underestimate its intrinsic worth in relation to subsequent development. The name of Beccaria is associated with ideals in criminal jurisprudence and penal organisation, most of which have been successfully achieved, and consequently forgotten; whereas the name of such an innovator as Darwin is linked to a scientific ideal that remains controversial, and hence ever before our minds. And so, paradoxical as it may seem, the fame of a pioneer often becomes immer the more his efforts have been crowned with success. But the historical eye, tracing out the evolution of things, sees them in their proper perspective. The triumph of Beccaria's teaching has been complete. His principles are now embodied in every criminal code in Christendom; and they have penetrated into the distant Orient. Indeed, no civilised code of criminal law, wherever promulgated, can now disregard them. Beccaria was the first systematic modern criminal law reformer in point of time; and if we take as a criterion the far-reaching results brought about by his work, we must also account him the greatest. This is all the more remarkable in that he was but a young man when he produced his small treatise, and was of timid and retiring disposition, unversed in law, a stranger to polemical propagandism, and a dweller in the land of the Inquisition. His work was placed by Brissot de Warville at the head of his voluminous publication, Bibliothèque philosophique du legislateur, du politique, du jurisconsulte," and he justly speaks of it as “une oeuvre hardie et lumineuse, qu'on ne croirait pas sortie d’un pays oil régne l’Inquisition.” In certain respects it might be regarded as standing, in reference to the sphere of criminal jurisprudence, as, say, Bacon's Novum Organum does in science, or Descartes' Principia in philosophy. It represents a definitive rejection of reiterated dogma and mere precedent, and marks a return to first principles. The views therein expounded are not, of course, original in an absolute sense. We meet with them, here and there, in the writings of ancient philosophers, in those of later theologians and publicists, and occasionally also in papal bulls and conciliar resolutions. We meet with protests against torture, for example, and earlier condemnation of the barbarous ferocity of penal methods; and sometimes even the legitimacy of capital punishment is questioned. But before Beccaria scarcely anyone had found, or even sought, a juridical theory of the right to punish." At most the interest of the state—which meant the fluctuating interest of the sovereign or governors, and the arbitrary discretion of irregularly constituted authorities—and the principle of penal exemplarity—which meant the vindictive treatment of malefactors—were the guiding-stars, which led to an overwhelming multiplication of capital offences, indiscriminate infliction of torture, branding, and other atrocious punishments, secret accusations, inquisitorial procedure, and the rest of the practices due to a fierce “lex talionis.” Beccaria's originality lies in his insistence on the necessary rights and obligations inherent in the relationships between society and the individual, as determined by the doctrine of public utility, on the essential aim of government, and the object of repressive and remedial justice as dependent on absolute necessity; his originality lies further in the systematisation of fundamental principles, in the consistent basing thereon of legal institutions and penal measures, and in his sober, incisive, logical, cogent criticism of the main features of an entire system. The Dei Delitti presented the essential elements of a programme of reform, and constituted a definite point of departure for legislative renovation. No doubt its main object was to destroy rather than to construct. But truth and justice triumph more easily after the removal of obstacles, after the destruction of an incubus of errors and follies. Thenceforth whoever aimed at mitigating the rigour of penal law, rationalising the procedure, and proportioning punishments to offences appealed to the Italian author, adopted his principles, made use of his arguments. Beccaria may not, indeed, be a learned or profound criminalist, in the sense of one who would set forth a formidable array of authorities and texts, or present a great conglomeration of details gathered from the multitudinous bypaths of the ground he traversed. He preferred to remain on the broad highway, which is common to all men; and by forcibly emphasising the salient features in his survey, he became a great defender and benefactor of mankind. He has, in truth, been reproached for his ignorance of history and the
* Io vols. (Paris and Berlin, 1782–1785).