Of the Origin of Punishments. Of the Right to punish. Consequences of the foregoing Principles. Of the Interpretation of laws. Of the Obscurity of laws. Of the Proportion between Crimes and Punishments.
Of estimating the Degree of Crimes. Of the Division of Crimes. Of Crimes which disturb the public Tranquillity. Of the Intent of Punishments. Of the Credibility of Witnesses. Of the Advantage of immediate Punishment.
Of Acts of Violence. Of the Punishment of the Nobles. Of Infamy, considered as a Punishment. Of Banishment and Confiscation. Of the Spirit of Family in States. Of the Mildness of Punishments. It is opinion, that tormentor of the wise and the ignorant, that has exalted the appearance of virtue above virtue itself.
Hence the esteem of men becomes not only useful, but necessary, to every one, to prevent his sinking below the common level. The ambitious man grasps at it, as being necessary to his designs; the vain man sues for it, as a testimony of his merit; the honest man demands it as his due; and the most men consider it as necessary to their existence. Honour, being produced after the formation of society, could not be a part of the common deposite, and therefore, whilst we act under its influence, we return, for that instant, to a state of nature, and withdraw ourselves from the laws, which in this case are insufficient for our protection.
Hence it follows, that in extreme political liberty, and in absolute despotism, all ideas of honour disappear, or are confounded with others. In the first case, reputation becomes useless from Edition: Honour, then, is one of the fundamental principles of those monarchies, which are a limited despotism, and in these, like revolutions in despotic states, it is a momentary return to a state of nature, and original equality.
From the necessity of the esteem of others, have arisen single combats, and they have been established by the anarchy of the laws. They are thought to have been unknown to the ancients; perhaps because they did not assemble in their temples, in their theatres, or with their friends, suspiciously armed with swords; and, perhaps, because single combats were a common spectacle, exhibited to the people by gladiators, who were slaves, and whom freemen disdained to imitate.
In vain have the laws endeavoured to abolish this custom, by punishing the offenders with death. A man of honour, deprived of the esteem of others, foresees that he must be reduced, either to a solitary existence, insupportable to a social creature, or become the object of perpetual insult; considerations sufficient to overcome the fear of death. What is the reason that duels are not so frequent among the common people, as amongst the great?
Not only because they do not wear swords, but because to men of that class reputation is of less importance than it is to those of a higher rank, who commonly regard each other with distrust and jealousy. It may not be without its use to repeat here, what has been mentioned by other writers, viz.
Another class of crimes are those which disturb the public tranquillity and the quiet of the citizens; such as tumults and riots in the public streets, which are intended for commerce and the passage of the inhabitants; the discourses of fanatics, which rouse the passions of the curious multitude, and gain strength from the number of their hearers, who, though deaf to calm and solid reasoning, are always affected by obscure and mysterious enthusiasm.
The illumination of the streets, during the night, at the public expense; guards stationed in different quarters of the city; the plain and moral discourses of religion, reserved for the silence and tranquillity of churches, and protected by authority; and harangues in support of the interest of the public, delivered only at the general meetings of the nation, in parliament, or where the sovereign resides; are all means to prevent the dangerous effects of the misguided passions of the people Edition: I do not know of any exception to this general axiom, that Every member of the society should know when he is criminal, and when innocent.
If censors, and, in general, arbitrary magistrates, be necessary in any government, it proceeds from some fault in the constitution. The uncertainty of crimes hath sacrificed more victims to secret tyranny, than have ever suffered by public and solemn cruelty. 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 manners? These problems should be solved with that geometrical precision which the mist of Edition: 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 practise, 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 blessings, and tears of transport, will be a sufficient consolation to me for the contempt of all mankind.
From the foregoing considerations it is evident, that the intent of punishments is not to torment a sensible being, nor to undo a crime already committed. Is it possible that torments, and useless cruelty, the instruments of furious fanaticism, or Edition: Can the groans of a tortured wretch recal 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 offence.
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. To determine exactly the credibility of a witness, and the force of evidence, is an important point in every good legislation. Every man of common sense, that is, every one whose ideas have some connexion with each other, and whose sensations Edition: Hence it appears, how frivolous is the reasoning of those, who reject the testimony of women on account of their weakness; how puerile it is, not to admit the evidence of those who are under sentence of death, because they are dead in law; and how irrational, to exclude persons branded with infamy: The credibility of a witness, then, should only diminish in proportion to the hatred, friendship, or connexions subsisting between him and the delinquent.
One witness is not sufficient; for whilst the accused denies what the other affirms, truth remains suspended, and the right that every one has to be believed innocent, turns the balance in his favour. The credibility of a witness is the less, as the atrociousness of the crime is greater, from the improbability of its having been committed; as in cases of witchcraft, and acts of wanton cruelty.
The writers on penal laws have adopted a contrary principle, viz. Let us translate this sentence, that mankind may see one of the many unreasonable principles to which they are ignorantly subject. In the most atrocious crimes the slightest conjectures are sufficient, and the judge is allowed to exceed the limits of the law. The absurd practices of legislators are often the effect of timidity, which is a principal source of the contradictions of mankind.
The legislators, or rather lawyers, whose opinions, when alive, were interested and venal, but which after their death become of decisive authority, and are sovereign arbiters of the lives and fortunes of men , terrified by the condemnation of some innocent person, have burdened the law with pompous and useless formalities, the scrupulous observance of which will place anarchical impunity on the throne of justice; at other times, perplexed by atrocious crimes of difficult proof, they imagined themselves under a necessity of superseding the very formalities established by themselves; and thus, at one time, with despotic impatience, and at another with feminine timidity, they transform their solemn judgments into a game of hazard.
In the case of witchcraft, it Edition: In like manner, in cases of wanton cruelty, the presumption is always against the accuser, without some motive of fear or hate.
There are no spontaneous or superfluous sentiments in the heart of man; they are all the result of impressions on the senses. The credibility of a witness may also be diminished, by his being a member of a private society, whose customs and principles of conduct are either not known, or are different from those of the public. Such a man has not only his own passions, but those of the society of which he is a member. Besides, violent and uncommon actions, such as real crimes, leave a trace in the multitude of circumstances that attend them, and in their effects; but words Edition: It is infinitely easier then to found an accusation on the words, than on the actions of a man; for in these, the number of circumstances, urged against the accused, afford him variety of means of justification.
The following general theorem is of great use in determining the certainty of fact. When the proofs of a crime are dependent on each other, that is, when the evidence of each witness, taken separately, proves nothing; or when all the proofs are dependent upon one, the number of proofs neither increase nor diminish the probability of the fact; for the force of the whole is no greater than the force of that on which they depend; and if this fails, they all fall to the ground.
When the proofs are independent on each other, Edition: It may seem extraordinary that I speak of probability with regard to crimes, which, to deserve a punishment, must be certain. But this paradox will vanish, when it is considered, that, strictly speaking, moral certainty is only probability; but which is called a certainty, because every man in his senses assents to it from an habit produced by the necessity of acting, and which is anterior to all speculation.
That certainty which is necessary to decide that the accused is guilty, is the very same which determines every man in the most important transactions of his life. The proofs of a crime may be divided into two classes, perfect and imperfect.
I call those perfect which exclude the possibility of innocence; imperfect, those which do not exclude this possibility. Of the first, one only is sufficient for condemnation; of the second, as many are required as form a perfect proof: It should be also observed, that the imperfect proofs of Edition: But it is much easier to feel this moral certainty of proofs, than to define it exactly. For this reason, I think it an excellent law which establishes assistants to the principal judge, and those chosen by lot; for that ignorance, which judges by its feelings, is less subject to error, than the knowledge of the laws which judges by opinion.
Where the laws are clear and precise, the office of the judge is merely to ascertain the fact. If, in examining the proofs of a crime, acuteness and dexterity be required; if clearness and precision be necessary in summing up the result; to judge of the result itself, nothing is wanting but plain and ordinary good sense, a less fallacious guide than the knowledge of a judge accustomed to find guilty, and to reduce all things to an artificial system, borrowed from his studies.
Happy the nation, where the knowledge of the law is not a science! It is an admirable law which ordains, that every man shall be tried by his peers; for when life, liberty and fortune are in question, the sentiments, which a difference of rank and fortune inspire, should be silent; that superiority with which the fortunate look upon the unfortunate, and that Edition: But when the crime is an offence against a fellow-subject, one half of the judges should be peers to the accused, and the other peers to the person offended.
So that all private interest, which, in spite of ourselves, modifies the appearance of objects, even in the eyes of the most equitable, is counteracted, and nothing remains to turn aside the direction of truth and the laws. It is also just, that the accused should have the liberty of excluding a certain number of his judges. Where this liberty is enjoyed for a long time, without any instance to the contrary, the criminal seems to condemn himself.
I shall not enter into particulars. There may be some persons who expect that I should say all that can be said upon this subject; to such, what I have already written must be unintelligible. Secret accusations are a manifest abuse, but consecrated by custom in many nations, where, from the weakness of the government, they are necessary.
This custom makes men false and treacherous. Whoever suspects another to be an informer, beholds in him an enemy; and, from thence, mankind are accustomed to disguise their real sentiments; and from the habit of concealing them from others, they at last even hide them from themselves.
Unhappy are those, who have arrived at this point! Without any certain and fixed principles to guide them, they fluctuate in the vast sea of opinion, and are busied only in escaping the monsters which surround them; to those, the present is always embittered by the uncertainty of the future; deprived of the pleasures of tranquillity and security, some fleeting moments of happiness, scattered thinly through their wretched lives, console them for the misery of existing.
Shall we, amongst such men, find Edition: Amongst such men shall we find incorruptible magistrates, who, with the spirit of freedom and patriotic eloquence, will support and explain the true interest of their sovereign; who, with the tributes, offer up at the throne the love and blessing of the people, and thus bestow on the palaces of the great, and the humble cottage, peace and security; and to the industrious a prospect of bettering their lot, that useful ferment and vital principle of states?
Who can defend himself from calumny, armed with that impenetrable shield of tyranny, secrecy? What a miserable government must that be, where the sovereign suspects an enemy in every subject, and, to secure the tranquillity of the public, is obliged to sacrifice the repose of every individual? By what arguments is it pretended, that secret accusations may be justified?
The public safety, say they, and the security and maintenance of the established form of government. But what a strange constitution is that, where the government, which hath in its favour not only power but opinion, still more efficacious, yet fears its own subjects?
The indemnity of the informer. Do not the laws defend him sufficiently; and are there subjects more powerful than the laws? When secret calumny is authorised, and punished only when public.
The nature of the crime. If actions, indifferent in themselves, or even useful to the public, were called crimes, both the accusation and the trial could never be too secret. But can there be any crime, committed against the public, which ought not to be publicly punished? I respect all governments; and I speak not of any one in particular.
Such may sometimes be the nature of circumstances, that when abuses are inherent in the constitution, it may be imagined, that to rectify them, would be to destroy the constitution itself. But were I to dictate new laws in a remote corner of the universe, the good of posterity, ever present to my mind, would hold back my trembling hand, and prevent me from authorising secret accusations.
Public accusations, says Montesquieu, are more conformable to the nature of a republic, where zeal for the public good is the principal passion of a citizen, than of a monarchy, in which, as this sentiment is very feeble, from the nature of the government, the best establishment is that of commissioners, who, in the name of the public, accuse the infractors of the laws. But in all governments as well in a republic as in a monarchy, Edition: 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 had 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 have been proved that he has violated the conditions on which it was granted.
What right, then, but that of power, can authorise the punishment of a citizen, so long Edition: The dilemma is frequent.
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. Besides, it is confounding all relations, to expect that a man should be both the accuser and accused; and that pain should be the test of truth, as if truth resided in the muscles and fibres of a wretch in torture. By this method, the robust will escape, and the feeble be condemned.
These are the inconveniencies of this pretended test of truth, worthy only of a cannibal; and which the Romans, in many respects barbarous, and whose savage virtue has been too much admired, reserved for the slaves alone.
What is the political intention of punishments? To terrify, and to be an example to others. Is this intention answered, by thus privately torturing the guilty and the innocent? It is doubtless of importance, that no crime should remain unpunished; but it is useless to make a public example of the author of a crime hid in darkness. A crime already committed, and for which there can be no remedy, can only be punished by a Edition: There is another ridiculous motive for torture, namely, to purge a man from infamy.
Ought such an abuse to be tolerated in the eighteenth century? Can pain, which is a sensation, have any connection with a moral sentiment, a matter of opinion? It is not difficult to trace this senseless law to its origin; for an absurdity, adopted by a whole nation, must have some affinity with other ideas, established and respected by the same nation.
This custom seems to be the offspring of religion, by which mankind, in all nations and in all ages, are so generally influenced. We are taught by our infallible church, that those stains of sin, contracted through human frailty, and which have not deserved the eternal anger of the Almighty, are to be purged away, in another life, by an Edition: Now infamy is a stain, and if the punishments and fire of purgatory can take away all spiritual stains, why should not the pain of torture take away those of a civil nature?
I imagine that the confession of a criminal, which in some tribunals is required, as being essential to his condemnation, has a similar origin, and has been taken from the mysterious tribunal of penitence, where the confession of sins is a necessary part of the sacrament. Thus have men abused the unerring light of revelation; and in the times of tractable ignorance, having no other, they naturally had recourse to it on every occasion, making the most remote and absurd applications.
Moreover, infamy is a sentiment regulated neither by the laws nor by reason, but entirely by opinion. But torture renders the victim infamous, and therefore cannot take infamy away. Another intention of torture is, to oblige the supposed criminal to reconcile the contradictions into which he may have fallen during his examination; as if the dread of punishment, the uncertainty of his fate, the solemnity of the court, the majesty of the judge, and the ignorance of the accused, were not abundantly sufficient to account for contradictions, which are so common to men even in a state of tranquillity; and which must Edition: This infamous test of truth is a remaining monument of that ancient and savage legislation, in which trials by fire, by boiling water, or the uncertainty of combats, were called judgments of God; as if the links of that eternal chain, whose beginning is in the breast of the first cause of all things, could never be disunited by the institutions of men.
The only difference between torture, and trials by fire and boiling water, is, that the event of the first depends on the will of the accused; and of the second, on a fact entirely physical and external: A man on the rack, in the convulsions of torture, has it as little in his power to declare the truth, as, in former times, to prevent, without fraud, the effect of fire or of boiling water.
Every act of the will is invariably in proportion to the force of the impression on our senses. The impression of pain, then, may increase to such a degree, that, occupying the mind entirely, it will compel the sufferer to use the shortest method of freeing himself from torment. His answer, therefore, will be an effect as necessary as that of fire or boiling water; and he will Edition: So that the very means employed to distinguish the innocent from the guilty, will most effectually destroy all difference between them.
It would be superfluous to confirm these reflections by examples of innocent persons, who from the agony of torture have confessed themselves guilty: How amazing, that mankind have always neglected to draw the natural conclusion! Lives there a man who, if he have carried his thoughts ever so little beyond the necessities of life, when he reflects on such cruelty, is not tempted to fly from society, and return to his natural state of independence? The result of torture, then, is a matter of calcution, and depends on the constitution, which differs in every individual, and is in proportion to his strength and sensibility; so that to discover truth by this method, is a problem which may be better resolved by a mathematician than a judge, and may be thus stated: The force of the muscles, and the sensibility of the nerves of an innocent person being given, it is required to find the degree of pain necessary to make him confess himself guilty of a given crime.
The examination of the accused is intended to Edition: Every violent action destroys those small alterations in the features, which sometimes disclose the sentiments of the heart. These truths were known to the Roman legislators, amongst whom, as I have already observed, slaves, only, who were not considered as citizens, were tortured.
They are known to the English, a nation in which the progress of science, superiority in commerce, riches and power, its natural consequences, together with the numerous examples of virtue and courage, leave no doubt of the excellence of its laws.
They have been acknowledged in Sweden, where torture has been abolished. They are known to one of the wisest monarchs in Europe, who, having seated philosophy on the throne, by his beneficent legislation, has made his subjects free, though dependent on the laws; the only freedom that reasonable men can desire in the present state of things. In short, torture has not been thought necessary in the laws of armies, composed chiefly of the dregs of mankind, where its use should seem most necessary.
It appears also, that these truths were known, though imperfectly, even to those by whom torture has been most frequently practised; for a confession made during torture is null, if it be not afterwards confirmed by an oath; which, if the criminal refuses, he is tortured again. Some civilians, and some nations, permit this infamous petitio principii to be only three times repeated, and others leave it to the discretion of the judge; and therefore of two men equally innocent or equally guilty, the most robust and resolute will be acquitted, and the weakest and most pusillanimous will be condemned, in consequence of the following excellent method of reasoning.
I, the judge, must find some one guilty. Thou, who art a strong fellow, hast been able to resist the force of torment; therefore I acquit thee. Thou, being weaker, hath yielded to it; I therefore condemn thee.
I am sensible, that the confession which was extorted from thee, has no weight: A very strange but necessary consequence of the use of torture, is that the case of the innocent is worse than that of the guilty. With regard to Edition: On the contrary, the person who is really guilty has the most favourable side of the question; for if he supports the torture with firmness and resolution, he is acquitted, and has gained, having exchanged a greater punishment for a less.
The law by which torture is authorised, says, Men, be insensible to pain. Nature has indeed given you an irresistible self-love, and an unalienable right of self-preservation, but I create in you a contrary sentiment, an heroical hatred of yourselves. I command you to accuse yourselves, and to declare the truth, midst the tearing of your flesh and the dislocation of your bones.
Torture is used to discover, whether the criminal be guilty of other crimes besides those of which he is accused: Thou art guilty of one crime, therefore it is possible that thou mayst have committed a thousand others: The laws order thee to be tormented, because thou art guilty, because thou mayst be guilty, and because I chuse thou shouldst be guilty.
Torture is used to make the criminal discover his accomplices; but if it has been demonstrated that it is not a proper means of discovering truth, how can it serve to discover the accomplices, which is one of the truths required.
Will not the man who accuses himself, yet more readily accuse others? Besides, is it just to torment one man for the crime of another? May not the accomplices be found out by the examination of the witnesses, or of the criminal; from the evidence, or from the nature of the crime itself; in short, by all the means that have been used to prove the guilt of the prisoner? The accomplices commonly fly when their comrade is taken. The uncertainty of their fate condemns them to perpetual exile, and frees society from the danger of further injury; whilst the punishment of the criminal, by deterring others, answers the purpose for which it was ordained.
There was a time when all punishments were pecuniary. The crimes of the subjects were the inheritance of the prince. An injury done to society was a favour to the crown; and the sovereign and magistrates, those guardians of the public security, were interested in the violation of the laws.
Crimes were tried, at that time, in a court of Exchequer, and the cause became a civil suit between the person accused and the crown. The magistrate then had other powers than were necessary for the public welfare, and the criminal suffered other punishments than the necessity of example required. The judge was rather a collector for the crown, an agent for the treasury, than a protector and minister of the laws.
But, according to this system, for a man to confess himself guilty, was to acknowledge himself a debtor to the crown; which was, and is at present the effects continuing after the causes have ceased the intent of all criminal causes.
Thus, the criminal Edition: But the confession being once obtained, the judge becomes master of his body, and torments him with a studied formality, in order to squeeze out of him all the profit possible. Confession, then, is allowed to be a convincing proof, especially when obtained by the force of torture; at the same time that an extra-judicial confession, when a man is at case and under no apprehension, is not sufficient for his condemnation.
All inquiries, which may serve to clear up the fact, but which may weaken the pretensions of the crown, are excluded. It was not from compassion to the criminal, or from considerations of humanity, that torments were sometimes spared, but out of fear of losing those rights which at present appear chimerical and inconceivable.
The judge becomes an enemy to the accused, to a wretch, a prey to the horrors of a dungeon, to torture, to death, and an uncertain futurity, more terrible than all; he inquires not into the truth of the fact, but the nature of the crime; he lays Edition: It is in the power of the magistrate to determine, what evidence is sufficient to send a man to prison; that he may be proved innocent, he must first be supposed guilty.
This is what is called an offensive prosecution; and such are all criminal proceedings, in the eighteenth century, in all parts of our polished Europe. The true prosecution for information: What a labyrinth of absurdities! Absurdities which will appear incredible to happier posterity. The philosopher only will be able to read, in the nature of man, the possibility of there ever having been such a system.
There is a palpable contradiction between the laws and the natural sentiments of mankind, in the case of oaths which are administered to a criminal to make him speak the truth, when the contrary is his greatest interest. As if a man could think himself obliged to contribute to his own destruction; and as if, when interest speaks, religion was not generally silent; religion, which in all ages hath, of all other things, been most commonly abused; and indeed, upon what motive should it be respected by the wicked, when it has been thus violated by those who were esteemed the wisest of men?
The motives which religion opposes to the fear of impending evil, and the love of life, are too weak, as they are too distant, to make any impression on the senses. The affairs of the other world are regulated by laws entirely different from those by which human affairs are directed; why then should we endeavour to compromise matters between them?
The laws which require an oath in such a case, leave him only the choice of becoming a bad christian or a martyr. For this reason, oaths become by degrees a mere formality, and all sentiments of religion, perhaps the only motive of honesty in the greatest part of mankind, are destroyed. Experience proves their utility: I appeal to every judge, whether he has ever known that an oath alone has brought truth from the lips of a criminal; and reason tells us, it must be so; for all laws are useless, and, in consequence, destructive, which contradict the natural feelings of mankind.
Such laws are like a dyke, opposed directly to the course of a torrent; it is either immediately overwhelmed, or by a whirlpool formed by itself, it is gradually undermined and destroyed. The more immediately, after the commission of a crime, a punishment is inflicted, the more just and useful it will be.
It will be more just, because it spares the criminal the cruel and superfluous torment of uncertainty, which increases in proportion to the strength of his imagination and the sense of his weakness; and because the privation of liberty, being a punishment, ought to be inflicted before condemnation, but for as short a time as possible.
Imprisonments, I say, being only the means of securing the person of the accused, until he be tried, condemned or acquitted, ought not only to be of short duration, but attended with as little severity as possible.
The time should be determined by the necessary preparation for the trial, and the right of priority in the oldest prisoners. The confinement ought not to be closer than is requisite to prevent his flight, or his concealing the proofs of the crime; and the trial should be conducted with all possible Edition: Can there be a more cruel contrast than that between the indolence of a judge, and the painful anxiety of the accused; the comforts and pleasures of an insensible magistrate, and the filth and misery of the prisoner?
In general, as I have before observed, The degree of the punishment, and the consequences of a crime, ought to be so contrived, as to have the greatest possible effect on others, with the least possible pain to the delinquent. If there be any society in which this is not a fundamental principle, it is an unlawful society; for mankind, by their union, originally intended to subject themselves to the least evils possible.
An immediate punishment is more useful; because the smaller the interval of time between the punishment and the crime, the stronger and more lasting will be the association of the two ideas of Crime and Punishment: It is demonstrated, that the association of ideas is the cement which unites the fabric of the human intellect; without which, pleasure and pain would be simple and ineffectual sensations.
The vulgar, that is, all men who have no general ideas or universal principles, act in consequence of the most immediate and familiar associations; but the more Edition: It is, then, of the greatest importance, that the punishment should succeed the crime, as immediately as possible, if we intend, that, in the rude minds of the multitude, the seducing picture of the advantage arising from the crime, should instantly awake the attendant idea of punishment.
Delaying the punishment serves only to separate these two ideas; and thus affects the minds of the spectators rather as being a terrible sight than the necessary consequence of a crime; the horror of which should contribute to heighten the idea of the punishment. There is another excellent method of strengthening this important connection between the ideas of crime and punishment; that is, to make the punishment as analagous as possible to the nature of the crime; in order that the punishment may lead the mind to consider the crime in a different point of view, from that in which it was Edition: Crimes of less importance are commonly punished, either in the obscurity of a prison, or the criminal is transported, to give, by his slavery, an example to societies which he never offended; an example absolutely useless, because distant from the place where the crime was committed.
Men do not, in general, commit great crimes deliberately, but rather in a sudden gust of passion; and they commonly look on the punishment due to a great crime as remote and improbable. The public punishment, therefore, of small crimes will make a greater impression, and, by deterring men from the smaller, will effectually prevent the greater. Some crimes relate to person, others to property. The first ought to be punished corporally. The great and rich should by no means have it in their power to set a price on the security of the weak and indigent; for then, riches, which, under the protection of the laws, are the reward of industry, would become the aliment of tyranny.
Liberty is at an end, whenever the laws permit, that, in certain cases, a man may cease to be a person, and become a thing. Then will the powerful employ their address to select from the various combinations of civil society, all that is in their own favour.
This is that magic art which transforms subjects into beasts of burden, and which, in the hands of the strong, is the chain that binds the the weak and incautious.
Thus it is, that in some governments, where there is all the appearance of liberty, tyranny lies concealed, and insinuates itself into some neglected corner of the constitution, where it gathers strength insensibly. What punishments shall be ordained for the nobles, whose privileges make so great a part of the laws of nations? I do not mean to inquire whether the hereditary distinction between nobles and commoners be useful in any government, or necessary in a monarchy; or whether it be true, that they form an intermediate power, of use in moderating the excesses of both extremes; or whether they be not rather slaves to their own body, and to others, confining within a very small circle the natural effects and hopes of industry, like those little fruitful spots scattered here and there in the sandy deserts of Arabia; or Edition: Be these as they may, I assert that the punishment of a nobleman should in no wise differ from that of the lowest member of society.
Every lawful distinction, either in honours or riches, supposes previous equality, founded on the laws, on which all the members of society are considered as being equally dependent. We should suppose that men, in renouncing their natural despotism, said, the wisest and most industrious among us shall obtain the greatest honours, and his dignity shall descend to his posterity.
The fortunate and happy may hope for greater honours, but let him not therefore be less afraid than others of violating those conditions on which he is exalted. It is true, indeed, that no such decrees were ever made in a general diet of mankind, but they exist in the invariable relations of things: It may be objected, that the same punishment inflicted on a nobleman and a plebeian, becomes really different from the difference of their education and from the infamy it reflects on an illustrious family; but I answer, that punishments are to be estimated, not by the sensibility of the criminal, but by the injury done to society; which injury is augmented by the high rank of the offender.
The precise equality of a punishment can never be more than external, as it is in proportion to the degree of sensibility, which differs in every individual. The infamy of an innocent family may be easily obliterated by some public demonstration of favour from the sovereign; and forms have always more influence than reason on the gazing multitude.
The punishment of robbery, not accompanied with violence, should be pecuniary. He who endeavours to enrich himself with the property of another, should be deprived of part of his own. But this crime, alas! Besides, as pecuniary punishment may increase the number of poor, and may deprive an innocent family of subsistence, the most proper punishment will be that kind of slavery, which alone can be called just; that is, which makes the society, for a time, absolute master of the person and labour of the criminal, in order to oblige him to repair, by this dependence, the unjust despotism he usurped over the property of another, and his violation of the social compact.
When robbery is attended with violence, corporal Edition: But it can never be superfluous to repeat, again and again, those truths of which mankind have not profited; for political machines preserve their motion much longer than others, and receive a new impulse with more difficulty. These crimes are in their nature absolutely different, and this axiom is as certain in politics as in mathematics, that between qualities of different natures there can be no similitude.
Those injuries, which affect the honour, that is, that just portion of esteem which every citizen has a right to expect from others, should be punished with infamy. Infamy is a mark of the Edition: This is not always in the power of the laws. It is necessary that the infamy inflicted by the laws should be the same with that which results from the relations of things, from universal morality, or from that particular system, adopted by the nation and the laws, which governs the opinion of the vulgar.
If, on the contrary, one be different from the other, either the laws will no longer be respected, or the received notions of morality and probity will vanish in spite of the declamations of moralists, which are weak to resist the force of example. If we declare those actions infamous, which are in themselves indifferent, we lessen the infamy of those which are really infamous.
The punishment of infamy should not be too frequent, for the power of opinion grows weaker by repetition; nor should it be inflicted on a number of persons at the same time, for the infamy of many resolves itself into the infamy of none. Painful and corporal punishments should never be applied to fanaticism; for being founded on pride, it glories in persecution.
Infamy and ridicule Edition: Thus, by opposing one passion to another, and opinion to opinion, a wise legislator puts an end to the admiration of the populace, occasioned by a false principle, the original absurdity of which is veiled by some well-deduced consequences.
This is the method to avoid confounding the immutable relations of things, or opposing nature, whose actions not being limited by time, but operating incessantly, overturn and destroy all those vain regulations which contradict her laws.
It is not only in the fine arts that the imitation of nature is the fundamental principle; it is the same in sound policy, which is no other than the art of uniting, and directing to the same end, the natural and immutable sentiments of mankind. A wise government will not suffer, in the midst of labour and industry, that kind of political idleness which is confounded, by rigid declaimers, with the leisure attending riches acquired by industry, which is of use to an increasing society, when confined within proper limits.
I call those politically idle, who neither contribute to the good of society by their labour nor their riches; who continually accumulate, but never spend; and are reverenced by the vulgar with stupid admiration, and regarded by the wise with disdain; who, being victims to a monastic life, and deprived of all incitement to the activity which is necessary to preserve or increase its comforts, devote all their vigour to passions of the strongest kind, the passions of opinion.
I call him not idle, who enjoys the fruits of the virtues or vices of his ancestors, and in exchange for his pleasures supports the industrious poor.
It is not then the Edition: He who disturbs the public tranquillity, who does not obey the laws, who violates the conditions on which men mutually support and defend each other, ought to be excluded from society, that is, banished.
It seems as if banishment should be the punishment of those, who, being accused of an atrocious crime, are probably, but not certainly, guilty. For this purpose would be required a law, the least arbitrary, and the most precise possible; which should condemn to banishment those who have reduced the community to the fatal alternative, either of fearing or punishing them unjustly; still, however, leaving them the sacred right of proving their innocence.
Should the person who is excluded for ever from society be deprived of his property? This question may be considered in different lights. The confiscation of effects, added to banishment, is a greater punishment than banishment alone; there ought then to be some cases, in which, according to the crime, either the whole fortune should be confiscated, or part only, or none at all.
The whole should be forfeited, when the law, which ordains banishment, declares, at the same time, that all connections between the society and the criminal are annihilated. In this case, the citizen dies, the man only remains; and with respect to a political body, the death of the citizen should have the same consequences with the death of the man.
It seems to follow, then, that in this case, the effects of the criminal should devolve to his lawful heirs. But it is not on account of this refinement that I disapprove of confiscations. If some have insisted that they were a restraint to vengeance, and the violence of particulars, they have not reflected, that though punishments be productive of good, they are not, on that account, more just; to be just, they must be necessary. The law which ordains confiscations, sets a price on the head of the subject, with the guilty punishes the innocent, and by reducing them to indigence and despair, tempts them to become criminal.
Can there be a more melancholy spectacle, than a whole family, overwhelmed with infamy and misery, from the crime of their chief? It is remarkable, that many fatal acts of injustice have been authorised and approved, even by the wisest and most experienced men, in the freest republics. This has been owing to their having considered the state, rather as a society of families, than of men. Let us suppose a nation, composed of an hundred thousand men, divided into twenty thousand families of five persons each, including the head or master of the family, its representative.
If it be an association of families, there will be twenty thousand men, and eighty thousand slaves; if of men, there will be an hundred thousand citizens, and not one slave. In the first case we behold a republic, and twenty thousand little monarchies, of which the heads are the sovereigns; in the second, the spirit of liberty will not only breathe in every public place of the city, and in the assemblies of the nation, but in private houses, where men find the greatest part of their happiness or misery.
The private spirit of family is a spirit of minuteness, and confined to little concerns. Public spirit, on the contrary, is influenced by general principles, and from facts deduces general rules of utility to the greatest number.
In a republic of families, the children remain under the authority of the father, as long as he lives, and are obliged to wait until death for an existence dependent on the laws alone.
Accustomed to kneel and tremble in their tender years, when their natural sentiments were less restrained by that caution, obtained by experienee, which is called moderation, how should they resist those obstacles, which vice always opposes to virtue, in the languor and decline of age, when the despair of reaping the fruits is alone sufficient to damp the vigour of their resolutions.
In a republic, where every man is a citizen, family subordination is not the effect of compulsion, but of contract; and the sons, disengaged from the natural dependence, which the weakness Edition: In a republic of families, the young people, that is, the most numerous and most useful part of the nation, are at the discretion of their fathers: These contradictions between the laws of families, and the fundamental laws of a state, are the source of many others between public and private morality, which produce a perpetual conflict in the mind.
Domestic morality inspires submission and fear: That instructs a man to confine his beneficence to a small number of persons, not of his own choice; this, to extend it to all mankind: Such contradictions are the reason, that men neglect the pursuit of virtue, which they can hardly distinguish midst the obscurity and confusion of natural and moral objects.
How frequently are men, upon a retrospection of their actions, astonished to find themselves dishonest. In proportion to the increase of society, each member becomes a smaller part of the whole; and the republican spirit diminishes in the same proportion, if neglected by the laws. Political societies, like the human body, have their limits circumscribed, which they cannot exceed without disturbing their economy. It seems as if the greatness of a state ought to be inversely as the sensibility and activity of the individuals; if, on the contrary, population and inactivity increase in the same proportion, the laws will with difficulty prevent the crimes arising from the good they have produced.
An overgrown republic can only be saved from despotism, by subdividing it into a number of confederate republics. But how is this practicable? By a despotic dictator, who, with the courage of Sylla, has as much genius for building up, as that Roman had for pulling down. In proportion as the sentiments, which unite us to the state, grow weaker, those which attach us to the objects which more immediately surround us grow stronger; therefore, in the most despotic government, friendships are more durable, and domestic virtues which are always of the lowest class are the most common, or the only virtues existing.
Hence it appears how confined have been the views of the greatest number of legislators. The course of my ideas has carried me away from my subject, to the elucidation of which I now return. Crimes are more effectually prevented by the certainty, than the severity of punishment. The certainty of a small punishment will make a stronger impression, than the fear of one more severe, if attended with the hopes of escaping; for it is the nature of mankind to be terrified at the approach of the smallest inevitable evil, whilst hope, the best gift of Heaven, hath the power of dispelling the apprehension of a greater; especially if supported by examples of impunity, which weakness or avarice too frequently afford.
If punishments be very severe, men are naturally led to the perpetration of other crimes, to avoid the punishment due to the first. The countries and times most notorious for severity of punishments, were always those in which the most bloody and inhuman actions and the most atrocious crimes were committed; for the hand of the legislator and the assassin were directed by the same spirit of ferocity: In proportion as punishments become more cruel, the minds of men, as a fluid rises to the Edition: That a punishment may produce the effect required, it is sufficient that the evil it occasions should exceed the good expected from the crime; including in the calculation the certainty of the punishment, and the privation of the expected advantage.
All severity beyond this is superfluous, and therefore tyrannical.
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An Essay on Crimes and Punishments is one of the greatest treatises in the democratic tradition, a testament to human freedom and social justice. For students of law or political theory (of which I am one) this is an excellent account of some of the fundamental /5(7).
Feb 02, · Famous for the Marquis Beccaria's arguments against torture and capital punishment. — Excerpted from Dei delitti e delle pene on Wikipedia, the free encyclopedia. An Essay on Crimes and Punishments Cesare Beccaria not mentioned Excerpts from An Essay on Crimes and Punishments by Cesare Beccaria translated from the Italian, (original published in ) Introduction In every human society, there is an effort continually tending to confer on one part the height of power and happiness, and to reduce the other to the extreme of weakness and misery.
Essay on crimes and punishments by cesare beccaria, - Creative writing introduction. Our writers come from a variety of professional backgrounds. Some of them are journalists and bloggers, others have a degree in economy or law, some used to be literature or chemistry teachers. Crime and Punishment essays are academic essays for citation. These papers were written primarily by students and provide critical analysis of Crime and Punishment by Fyodor Dostoevsky.