CHAPTER XL.

OF THE TREASURY.

There was a time when nearly all penalties were pecuniary. Men’s crimes

were the prince’s patrimony; attempts against the public safety were

an object of gain, and he whose function it was to defend it found his

interest in seeing it assailed. The object of punishment was then a

suit between the treasury, which exacted the penalty, and the criminal:

it was a civil business, a private rather than a public dispute, which

conferred upon the treasury other rights than those conferred upon it by

the calls of the public defence, whilst it inflicted upon the offender

other grievances than those he had incurred by the necessity of example.

The judge was, therefore, an advocate for the treasury rather than an

impartial investigator of the truth, an agent for the Chancellor of

the Exchequer rather than the protector and minister of the laws. But

as in this system to confess a fault was the same thing as to confess

oneself a debtor to the treasury, that being the object of the criminal

procedure in those days, so the confession of a crime, and a confession

so managed as to favour and not to hurt fiscal interests, became and

still remains (effects always outlasting their causes so long) the

centre point of all criminal procedure. Without such confession a

criminal convicted by indubitable proofs will incur a penalty less than

the one legally attached to his crime; and without it he will escape

torture for other crimes of the same sort which he may have committed.

With it, on the other hand, the judge becomes master of a criminal’s

person, to lacerate him by method and formality, in order to get from

him as from so much stock all the profit he can. Given the fact of the

crime as proved, confession affords a convincing proof; and, to make this

proof still less open to doubt, it is forcibly exacted by the agonies and

despair of physical pain; whilst at the same time a confession that is

extra-judicial, that is tendered calmly and indifferently, and without

the overpowering fears of a trial by torture, is held insufficient for a

verdict of guilt. Inquiries and proofs, which throw light upon the fact,

but which weaken the claims of the treasury, are excluded; nor is it out

of consideration for his wretchedness and weakness that a criminal is

sometimes spared from torture, but out of regard for the claims which

this entity, now mythical and inconceivable, might lose. The judge

becomes the enemy of the accused, who stands in chains before him, the

prey of misery, of torments, and the most terrible future; he does not

seek to find the truth of a fact, but to find the crime in the prisoner,

trying to entrap him, and thinking it to the loss of his own credit if

he fail to do so, and to the detriment of that infallibility which men

pretend to possess about everything. The evidence that justifies a man’s

imprisonment rests with the judge; in order that a man may prove himself

innocent, he must first be declared guilty: that is called an _offensive

prosecution_; and such are criminal proceedings in nearly every part of

enlightened Europe, in the eighteenth century. The real prosecution, the

_informative_ one—that is, the indifferent inquiry into a fact, such

as reason enjoins, such as military codes employ, and such as is used

even by Asiatic despotism in trivial and unimportant cases—is of very

scant use in the tribunals of Europe. What a complex maze of strange

absurdities, doubtless incredible to a more fortunate posterity! Only the

philosophers of that time will read in the nature of man the possible

actuality of such a system as now exists.

Crimes and Punishments Including a New Translation of Beccaria's 'Dei Delitti e delle Pene' · 第 40 / 42 章