93.

Extracts from Beccaria’s an Essay on Crimes and Punishments

What are in general the proper punishments for crimes? Is the punishment of death really useful or necessary for the safety or good order of society? Are tortures and torments consistent with justice, or do they answer the end proposed by the laws? Which is the best method of preventing crimes? Are the same punishments equally useful at all times? What influence have they on morals? These problems should be solved with that geometrical precision which the mist of sophistry, the seduction of eloquence, and the timidity of doubt are unable to resist.

If I have no other merit than that of having first presented to my country with a greater degree of evidence what other nations have written and are beginning to practice, I shall account myself fortunate; but if, by supporting the rights of mankind and of invincible truth, I shall contribute to save from the agonies of death one unfortunate victim of tyranny or of ignorance, equally fatal, his blessing and tears of transport will be a sufficient consolation to me for the contempt of mankind. . . .

It is evident that the intent of punishments is not to torment a sensitive being nor to undo a crime already committed. Is it possible that torments and useless cruelty, the instruments of furious fanaticism or of the impotency of tyrants, can be authorized by a political body which, so far from being influenced by passion, should be the cool moderator of the passions of individuals? Can the groans of a tortured wretch recall the time past or reverse the crime he has committed?

The end of punishment therefore is no other than to prevent others from committing the like offense. Such punishments, therefore, and such a mode of inflicting them ought to be chosen as will make strongest and most lasting impressions on the minds of others with the least torment to the body of the criminal. . . .

Use of torture

The torture of a criminal during the course of his trial is a cruelty consecrated by custom in most nations. It is used with an intent either to make him confess his crime or explain some contradictions into which he has been led during his examination; or discover his accomplices; or for some kind of metaphysical and incomprehensible purgation of infamy; or finally, in order to discover other crimes of which he is not accused, but of which he may be guilty.

No man can be judged a criminal until he be found guilty; nor can society take from him the public protection until it has been proved that he has violated the conditions on which it was granted. What right, then, but that of mere power can authorize the punishment of a citizen so long as there remains any doubt of his guilt? The following dilemma is a frequent one! Either he is guilty or not guilty. If guilty, he should only suffer the punishment ordained by the laws, and torture becomes useless, as his confession is unnecessary. If he be not guilty, you torture the innocent; for in the eye of the law every man is innocent whose crime has not been proved. . . .

A very strange but necessary consequence of the use of torture is that the plight of the innocent is worse than that of the guilty. With regard to the first, either he confesses the crime which he has not committed and is condemned, or he is acquitted and has suffered a punishment he did not deserve. On the contrary, the person who is really guilty has the most favorable side of the question; for if he supports the torture with firmness and resolution, he is acquitted and is the gainer, having exchanged a greater punishment for a less. . . .

Arguments against capital punishment

The punishment of death is pernicious to society from the examples of barbarity it affords. If the passions or the necessity of war have taught men to shed the blood of their fellow-creatures, the laws, which are intended to moderate the ferocity of mankind, should not increase it by examples of barbarity,—the more horrible since this punishment is usually attended with formal pageantry. Is it not absurd that the laws which detect and punish homicide should, in order to prevent murder, publicly commit murder themselves?

What are the true and most useful laws? Those compacts and conditions which all would propose and observe in those moments when private interest is silent or combined with that of the public. What are the natural sentiments of every person concerning the punishment of death? We may read them in the contempt and indignation with which every one looks on the executioner, who is nevertheless an innocent executor of the public will, a good citizen who contributes to the advantage of society, the instrument of the general security within as good soldiers are without. What, then, is the origin of this contradiction? Why is this sentiment of mankind indelible, however one may reason? It is because in a secret corner of the mind, in which the original impressions of nature are still preserved, men discover a sentiment which tells them that their lives are not lawfully in the power of any one, but of that necessity only which with its iron scepter rules the universe. . . .

The past full of mistakes

If it be objected that almost all nations in all ages have punished certain crimes with death, I answer that the force of these examples vanishes when opposed to truth against which prescription is urged in vain. The history of mankind is an immense sea of errors in which a few obscure truths may here and there be found. . . . That some societies only, either few in number or for a very short time, have abstained from the punishment of death is rather favorable to my argument, for such is the fate of great truths that their duration is only as a flash of lightning in the long dark night of error. The happy time has not yet arrived when truth, as falsehood has been hitherto, shall be the portion of the greatest number.

I am sensible that the voice of one philosopher is too weak to be heard amidst the clamors of a multitude blindly influenced by custom; but there is a small number of sages scattered on the face of the earth who will echo me from the bottom of their hearts; and if these truths should happily force their way to the thrones of princes, be it known to them that they come attended with the secret wishes of all mankind; and tell the sovereign that deigns them a gracious reception that his fame shall outshine the glory of conquerors, and that equitable posterity will exalt his peaceful trophies above those of a Titus, an Antoninus, or a Trajan.

The benevolent despots

How happy were mankind if laws were now to be first formed, now that we see on the thrones of Europe benevolent monarchs, friends to the virtues of peace, to the arts and sciences, fathers of their people, though crowned, yet citizens; the increase of whose authority augments the happiness of their subjects by destroying that intermediate despotism which intercepts the prayers of the people to the throne. If these humane princes have suffered the old laws to subsist, it is doubtless because they are disturbed by the numberless obstacles which oppose the subversion of errors by the sanction of many ages; and therefore every wise citizen will wish for the increase of their authority. . . .

Would you prevent crimes? Let the laws be clear and simple; let the entire force of the nation be united in their defense; let them be intended rather to favor every individual than any particular classes of men; let the laws be feared and the laws only. . . .

From what I have written, results the following general theorem of considerable utility, though not conformable to Custom, the common legislator of nations: That a punishment may not be an act of violence, of one or of many, against a private member of society; it should be public, immediate, and necessary; the least possible in the case given; proportioned to the crime, and determined by the laws.