A COMMENTARY ON THE MARQUIS DE BECCARIA'S WORK ON CRIMES AND PUNISHMENTS, ATTRIBUTED TO VOL TAIRE. PUBLISHED ABOUT THE YEAR 1770. ON THE PUNISHMENT OF DEATH*. Ir hath long since been observed, that a man after he is hanged is good for nothing, and that punishments invented for the good of society, ought to be useful to society. It is evident, that a score of stout robbers, condemned for life to some public work, would serve the state in their punishment, and that hanging them is a benefit to nobody but the executioner. Thieves, in England, are seldom punished with une large barre de fer ecrase le malheureux sous onze coups, le replie sur une roue, non la face vers le ciel, comme le dit l'arret mais horriblement pendante; les os brués traversent la chair, les chẻ. veux horissés par la douleur distillent une sueur sanglante, le patient, dans ce long supplice, demande tour a tour de l'eau et la mort. Le peuple regarde au cadran de l'Hotel de Ville, et compte les heures qui sonnent, il fremit consterne, contemple, et se tait. Mais le lendemain un autre criminel fait relever l'echafaud, et le spectacle affreux de la veille n'a point empeché un nouveau forfait la populace revient contempler le meme spectacle; le bourreau lave ses mains sanglantes et va se confondre dans la foule hes citoyens. * Chap. x. A a death, but are transported to the colonies. This is also practised in Russia, where not one criminal was executed during the whole reign of the autocratical Elizabeth. Catherine II. who hath succeeded her, with much more genius, follows her example: yet crimes are not multiplied by this humanity; and it generally happens that the criminals sent to Siberia, in time become honest people. The same is observed in the English colonies. We are astonished at the change, and yet nothing can be more natural. The condemned are forced to continual labour for a livelihood. The opportunities of vice are wanting. They marry and multiply. Oblige men to work, and you certainly make them honest. It is well known, that atrocious crimes are not committed in the country, unless when there is too much holiday, and consequently too much idleness, and consequently too much debauchery. The Romans never condemned a citizen to death, unless for crimes which concerned the safety of the state. These our masters, our first legislators, were careful of the blood of their fellow citizens; but we are extravagant with the blood of ours. The question hath been frequently debated, whether a judge ought to have the power to punish with death, when the punishment is undetermined by the law? This question was solemnly agitated in the presence of the emperor Henry VII. who decreed that no judge should have such a power. There are some criminal cases which are either so new, so complicated, and so unaccountable, as to have escaped the provision of the laws, and which therefore, in some countries, are left to the discretion of the judge. But for one case in * Bodin de Republica, lib. 3. c. 5. which the laws permit the death of a criminal whom they have not condemned, there are a thousand, wherein humanity should save whom the laws have condemned to suffer. The sword of justice is in our hands, but we ought rather to blunt than to sharpen its edge. It remains within its sheath in the presence of kings, to inform us that it ought seldom to be drawn. There have been some judges who were passionately fond of spilling human blood; such was Jefferies in England, andsuch in France was the man whom they called Coupe-tête, Nature never intended such men for magistrates, but for executioners. ON DOMESTIC THEFT.* IN countries where a trifling domestic theft, or breach of trust, is punished with death, is not the disproportioned punishment dangerous to society? Is it not even an encouragement to larceny? If in this case a master prosecutes his servant, and the unhappy wretch suffer death, the whole neighbourhood holds the master in abhorrence: they perceive that the law is contrary to nature, and consequently that it is a bad law. What is the result? Masters, to avoid opprobrium, content themselves with discharging the thief, who afterwards steals from another, and gradually becomes familiar with dishonesty. The punishment being the same for a small theft as * Chap. 18. for a greater, he will naturally steal as much as he can, and at last will not scruple to turn assassin to prevent detection. If, on the contrary, the punishment be proportioned to the crime; if those who are guilty of a breach of trust be condemned to labour for the public, the master will not hesitate to bring the offender to justice, and the crime will be less frequent; so true it is, that rigorous laws are often productive of crimes. PRINCIPLES OF PENAL LAW. PUBLISHED ABOUT THE YEAR 1775. THE prevention of crimes should be the great object of the lawgiver; whose duty it is, to have a severe eye upon the offence, but a merciful inclination towards the offender. It is from an abuse of language, that we apply the word "Punishment" to human institutions: vengeance belongeth not to man. Criminals, said Plato *, are punished, not because they have offended; for what is done can never be undone : but that for the future the criminals themselves, and such as see their punishment, may take warning, and learn to shun the allurements of vice. "+Meti Suffeti, inquit Tullus, si ipse discere posses foedera ac fidem servare, vivo tibi ea disciplina a me adhibita esset : nunc, quoniam tuum insanabile ingenium est, Tu tuo supplicio doce humanum genus ea sancta credere, quæ a te violata sunt." It is the end then of penal laws to deter, not to punish. When the rights of human nature are not respected, those of the citizen are gradually disregarded. Those æras are in history found fatal to liberty, in which cruel punishments predominate. Lenity should be the guardian of moderate governments: severe penalties, the instruments of despotism, * De Legibus, p. 977. |