论犯罪与刑罚(英文版)

论犯罪与刑罚

Of Crimes and Punishments

Cesare Bonesana, Marchese Beccaria, 1738-1794

Originally published in Italian in 1764

Dei delitti e delle pene. English: An essay on crimes and punishments.

Written by the Marquis Beccaria, of Milan. With a commentary attributed to Monsieur de Voltaire. Philadelphia: Printed and sold by R. Bell, next door

to St. Paul's Church, in Third-Street. MDCCLXXVIII. [1778]

Translated from the French by Edward D. Ingraham. Second American edition. Philadelphia (No. 175, Chesnut St.): Published by Philip H. Nicklin: A.

Walker, printer, 24, Arch St., 1819.

Table of Contents

Introduction.

Chapter 01 Of the Origin of Punishments.

Chapter 02 Of the right to punish.

Chapter 03 Consequences of the foregoing Principles.

Chapter 04 Of the Interpretation of Laws.

Chapter 05 Of the Obscurity of Laws.

Chapter 06 Of the Proportion between Crimes and

Punishments.

Chapter 07 Of estimating the Degree of Crimes.

Chapter 08 Of the Division of Crimes.

Chapter 09 Of Honour.

Chapter 10 Of Duelling.

Chapter 11 Of crimes which disturb the Public Tranquillity.

Chapter 12 Of the Intent of Punishments.

Chapter 13 Of the Credibility of Witnesses.

Chapter 14 Of Evidence and the Proofs of a Crime, and of the

Form of Judgment.

Chapter 15 Of secret Accusations.

Chapter 16 Of Torture.

Chapter 17 Of pecuniary Punishments.

Chapter 18 Of Oaths.

Chapter 19 Of the Advantage of immediate Punishment.

Chapter 20 Of Acts of violence.

Chapter 21 Of the Punishment of the Nobles.

Chapter 22 Of Robbery.

Chapter 23 Of Infamy considered as a Punishment.

Chapter 24 Of Idleness.

Chapter 25 Of Banishment and Confiscation.

Chapter 26 Of the Spirit of Family in States.

Chapter 27 Of the Mildness of Punishments.

Chapter 28 Of the Punishment of Death.

Chapter 29 Of imprisonment.

Chapter 30 Of Prosecution and Prescription.

Chapter 31 Of Crimes of difficult Proof.

Chapter 32 Of Suicide.

Chapter 33 Of Smuggling.

Chapter 34 Of bankrupts

Chapter 35 Of Sanctuaries.

Chapter 36 Of Rewards for apprehending or killing Criminals.

Chapter 38 Of suggestive Interrogations.

Chapter 39 Of a particular Kind of Crimes.

Chapter 40 Of false Ideas of Utility.

Chapter 41 Of the Means of preventing Crimes.

Chapter 42 Of the Sciences.

Chapter 43 Of Magistrates.

Chapter 44 Of rewards.

Chapter 45 Of Education.

Chapter 46 Of Pardons.

Chapter 47 Conclusion.

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. The intent of good laws is to oppose this effort, and to diffuse their influence universally and equally. But men

generally abandoned the care of their most important concerns to the

uncertain prudence and discretion of those whose interest it is to reject

the best and wisest institutions; and it is not till they have been led into

a thousand mistakes in matters the most essential to their lives and

liberties, and are weary of suffering, that they can be induced to apply a

remedy to the evils with which they are oppressed. It is then they begin to conceive and acknowledge the most palpable truths which, from their very simplicity, commonly escape vulgar minds, incapable of analysing objects, accustomed to receive impressions, without distinction, and to be determined rather by the opinions of others than by the result of their own

examination.

If we look into history we shall find that laws, which are, or ought to be, conventions between men in a state of freedom. have been, for the most part the work of the passions of a few, or the consequences of a fortuitous or temporary necessity; not dictated by a cool examiner of human nature, who knew how to collect in one point the actions of a multitude, and had this

only end in view, the greatest happiness of the greatest number. Happy are those few nations who have not waited till the slow succession of human vicissitudes should, from the extremity of evil, produce a transition to

good; but by prudent laws have facilitated the progress from one to the

other! And how great are the obligations due from mankind to that

philosopher, who, from the obscurity of his closet, had the courage to

scatter among the multitude the seeds of useful truths, so long unfruitful!

The art of printing has diffused the knowledge of those philosophical

truths, by which the relations between sovereigns and their subjects, and between nations are discovered. By this knowledge commerce is animated, and there has sprung up a spirit of emulation and industry, worthy of rational beings. These are the produce of this enlightened age; but the cruelty of punishments, and the irregularity of proceedings in criminal cases, so

principal a part of the legislation, and so much neglected throughout

Europe, has hardly ever been called in question. Efforts, accumulated

through many centuries, have never yet been exposed by ascending to general principles; nor has the force of acknowledged truths been ever opposed to

the unbounded licentiousness of ill-directed power, which has continually produced so many authorised examples of the most unfeeling barbarity. Surely, the groans of the weak, sacrificed to the cruel ignorance and

indolence of the powerful, the barbarous torments lavished, and multiplied

impossible, the filth and horrors of a prison, increased by the most cruel tormentor of the miserable, uncertainty, ought to have roused the attention of those whose business is to direct the opinions of mankind.

The immortal Montesquieu has but slightly touched on this subject. Truth, which is eternally the same, has obliged me to follow the steps of that

great man; but the studious part of mankind, for whom I write, will easily distinguish the superstructure from the foundation. I shall be happy if,

with him, I can obtain the secret thanks of the obscure and peaceful disciples of reason and philosophy, and excite that tender emotion in which sensible minds sympathise with him who pleads the cause of humanity.

Of the Origin of Punishments.

Laws are the conditions under which men, naturally independent, united themselves in society. Weary of living in a continual state of war, and of enjoying a liberty which became of little value, from the uncertainty of its duration, they sacrificed one part of it, to enjoy the rest in peace and security. The sum of all these portions of the liberty of each individual constituted the sovereignty of a nation and was deposited in the hands of the sovereign, as the lawful administrator. But it was not sufficient only

to establish this deposit; it was also necessary to defend it from the usurpation of each individual, who will always endeavour to take away from the mass, not only his own portion, but to encroach on that of others. Some motives therefore, that strike the senses were necessary to prevent the despotism of each individual from plunging society into its former chaos. Such motives are the punishments established, against the infractors of the laws. I say that motives of this kind are necessary; because experience shows, that the multitude adopt no established principle of conduct; and because society is prevented from approaching to that dissolution, (to which, as well as all other parts of the physical and moral world, it

naturally tends,) only by motives that are the immediate objects of sense, and which being continually presented to the mind, are sufficient to counterbalance the effects of the passions of the individual which oppose the general good. Neither the power of eloquence nor the sublimest truths are sufficient to restrain, for any length of time, those passions which are excited by the lively impressions of present objects.

Of the right to punish.

Every punishment which does not arise from absolute necessity, says the great Montesquieu, is tyrannical. A proposition which may be made more general thus: every act of authority of one man over another, for which

there is not an absolute necessity, is tyrannical. It is upon this then that

the sovereign's right to punish crimes is founded; that is, upon the

necessity of defending the public liberty, entrusted to his care, from the usurpation of individuals; and punishments are just in proportion, as the liberty, preserved by the sovereign, is sacred and valuable.

Let us consult the human heart, and there we shall find the foundation of the sovereign's right to punish; for no advantage in moral policy can be lasting which is not founded on the indelible sentiments of the heart of man. Whatever law deviates from this principle will always meet with a resistance which will destroy it in the end; for the smallest force

continually applied will overcome the most violent motion communicated to

No man ever gave up his liberty merely for the good of the public. Such a chimera exists only in romances. Every individual wishes, if possible, to be exempt from the compacts that bind the rest of mankind.

The multiplication of mankind, though slow, being too great, for the means

which the earth, in its natural state, offered to satisfy necessities which

every day became more numerous, obliged men to separate again, and form new societies. These naturally opposed the first, and a state of war was

transferred from individuals to nations.

Thus it was necessity that forced men to give up apart of their liberty. It

is certain, then, that every individual would choose to put into the public

stock the smallest portion possible, as much only as was sufficient to

engage others to defend it. The aggregate of these, the smallest portions possible, forms the right of punishing; all that extends beyond this, is

abuse, not justice.

Observe that by justice I understand nothing more than that bond which is necessary to keep the interest of individuals united, without which men

would return to their original state of barbarity. All punishments which

exceed the necessity of preserving this bond are in their nature unjust. We should be cautious how we associate with the word justice an idea of any

thing real, such as a physical power, or a being that actually exists. I do

not, by any means, speak of the justice of God, which is of another kind,

and refers immediately to rewards and punishments in a life to come. Consequences of the foregoing Principles.

The laws only can determine the punishment of crimes; and the authority of making penal laws can only reside with the legislator, who represents the

whole society united by the social compact. No magistrate then, (as he is

one of the society,) can, with justice, inflict on any other member of the

same society punishment that is not ordained by the laws. But as a

punishment, increased beyond the degree fixed by the law, is the just punishment with the addition of another, it follows that no magistrate, even under a pretence of zeal, or the public good, should increase the punishment already determined by the laws.

If every individual be bound to society, society is equally bound to him, by

a contract which from its nature equally binds both parties. This

obligation, which descends from the throne to the cottage, and equally binds

the highest and lowest of mankind, signifies nothing more than that it is

the interest of all, that conventions, which are useful to the greatest

number, should be punctually observed. The violation of this compact by any individual is an introduction to anarchy.

The sovereign, who represents the society itself, can only make general laws

to bind the members; but it belongs not to him to judge whether any

individual has violated the social compact, or incurred the punishment in consequence. For in this case there are two parties, one represented by the sovereign, who insists upon the violation of the contract, and the other is

the person accused who denies it. It is necessary then that there should be

a third person to decide this contest; that is to say, a judge, or

magistrate, from whose determination there should be no appeal; and this determination should consist of a simple affirmation or negation of fact.

If it can only be proved, that the severity of punishments, though not immediately contrary to the public good, or to the end for which they were intended, viz. to prevent crimes, be useless, then such severity would be contrary to those beneficent virtues, which are the consequence of enlightened reason, which instructs the sovereign to wish rather to govern men in a state of freedom and happiness than of slavery. It would also be contrary to justice and the social compact.

Of the Interpretation of Laws.

Judges, in criminal cases, have no right to interpret the penal laws,

because they are not legislators. They have not received the laws from our ancestors as a domestic tradition, or as the will of a testator, which his

heirs and executors are to obey; but they receive them from a society

actually existing, or from the sovereign, its representative. Even the

authority of the laws is not founded on any pretended obligation, or ancient convention; which must be null, as it cannot bind those who did not exist at the time of its institution; and unjust, as it would reduce men in the ages following, to a herd of brutes, without any power of judging or acting. The laws receive their force and authority from an oath of fidelity, either

tacit or expressed, which living subjects have sworn to their sovereign, in order to restrain the intestine fermentation of the private interest of individuals. From hence springs their true and natural authority. Who then

is their lawful interpreter? The sovereign, that is, the representative of society, and not the judge, whose office is only to examine if a man have or have not committed an action contrary to the laws.

In every criminal cause the judge should reason syllogistically. The major should be the general law; the minor, the conformity of the action, or its opposition to the laws; the conclusion, liberty, or punishment. If the judge

be obliged by the imperfection of the laws, or chooses to make any other or more syllogisms than this, it will be an introduction to uncertainty.

There is nothing more dangerous than the common axiom, the spirit of the laws is to be considered. To adopt it is to give way to the torrent of

opinions. This may seem a paradox to vulgar minds, which are more strongly affected by the smallest disorder before their eyes, than by the most pernicious though remote consequences produced by one false principle adopted by a nation.

Our knowledge is in proportion to the number of our ideas. The more complex these are, the greater is the variety of positions in which they may be considered. Every man hath his own particular point of view, and, at

different times, sees the same objects in very different lights. The spirit

of the laws will then be the result of the good or bad logic of the judge;

and this will depend on his good or bad digestion, on the violence of his passions, on the rank or condition. of the accused, or on his connections

with the judge, and on all those little circumstances which change the appearance of objects in the fluctuating mind of man. Hence we see the fate of a delinquent changed many times in passing through the different courts

of judicature, and his life and liberty victims to the false ideas or ill

humour of the judge, who mistakes the vague result of his own confused reasoning for the just interpretation of the laws. We see the same crimes punished in a different manner at different times in the same tribunals, the consequence of not having consulted the constant and invariable voice of the laws, but the erring instability of arbitrary interpretation.

The disorders that may arise from a rigorous observance of the letter of

penal laws are not to be compared with those produced by the interpretation of them. The first are temporary inconveniences which will oblige the legislature to correct the letter of the law, the want of preciseness and uncertainty of which has occasioned these disorders ; and this will put a

stop to the fatal liberty of explaining, the source of arbitrary and venal declamations. When the code of laws is once fixed, it should be observed in the literal sense, and nothing more is left to the judge than to determine whether an action be or be not conformable to the written law. When the rule of right, which ought to direct the actions of the philosopher, as well as

the ignorant, is a matter of controversy, not of fact, the people are slaves

to the magistrates. The despotism of this multitude of tyrants is more insupportable the less the distance is between the oppressor and the oppressed, more fatal than that of one, for the tyranny of many is not to be shaken off but by having recourse to that of one alone. It is more cruel, as

it meets with more opposition, and the cruelty of a tyrant is not in

proportion to his strength, but to the obstacles that oppose him.

These are the means by which security of person and property is best obtained, which is just, as it is the purpose of uniting in society; and it

is useful as each person may calculate exactly the inconveniences attending every crime. By these means, subjects will acquire a spirit of independence and liberty, however it may appear to those who dare to call the weakness of submitting blindly to their capricious and interested opinions by the sacred name of virtue.

These principles will displease those who have made it a rule with themselves to transmit to their inferiors the tyranny they suffer from their superiors. I should have every thing to fear if tyrants were to read my

book; but tyrants never read.

Of the Obscurity of Laws.

If the power of interpreting laws be an evil, obscurity in them must be another, as the former is the consequence of the latter. This evil will be

still greater if the laws be written in a language unknown to the people; who, being ignorant of the consequences of their own actions, become necessarily dependent on a few, who are interpreters of the laws, which, instead of being public and general, are thus rendered private and

particular. What must we think of mankind when we reflect, that such is the established custom of the greatest part of our polished and enlightened Europe? Crimes will be less frequent in proportion as the code of laws is more universally read and understood; for there is no doubt but that the eloquence of the passions is greatly assisted by the ignorance and uncertainty of punishments.

Hence it follows, that, without written laws, no society will ever acquire a fixed form of government, in which the power is vested in the whole, and not in any part of the society; and in which the laws are not to be altered but

by the will of the whole, nor corrupted by the force of private interest. Experience and reason show us that the probability of human traditions diminishes in proportion as they are distant from. their sources. How then can laws resist the inevitable force of time, if there be not a lasting monument of the social compact.

Hence we see the use of printing, which alone makes the public, and not a

which by diffusing literature, has gradually dissipated the gloomy spirit of cabal and intrigue. To this art it is owing that the atrocious crimes of our ancestors, who were alternately slaves and tyrants, are become less frequent. Those who are acquainted with the history of the two or three last centuries may observe, how from the lap of luxury and effeminacy have sprung the most tender virtues, humanity, benevolence, and toleration of human errors. They may contemplate the effects of what was so improperly called ancient simplicity and good faith; humanity groaning under implacable superstition, the avarice and ambition of a few staining with human blood

the drones and palaces of kings, secret treasons and public massacres, every noble a tyrant over the people, and the ministers of the gospel of Christ

bathing their hands in blood in the name of the God of all mercy. We may

talk as we please of the corruption and degeneracy of the present age, but happily we see no such horrid examples of cruelty and oppression.

Of the Proportion between Crimes and Punishments.

It is not only the common interest of mankind that crimes should not be committed, but that crimes of every kind should be less frequent, in

proportion to the evil they produce to society. Therefore the means made use of by the legislature to prevent crimes should be more powerful in

proportion as they are destructive of the public safety and happiness, and

as the inducements to commit them are stronger. Therefore there ought to be a fixed proportion between crimes and punishments.

It is impossible to prevent entirely all the disorders which the passions of mankind cause in society. These disorders increase in proportion to the number of people and the opposition of private interests. If we consult

history, we shall find them increasing, in every state, with the extent of dominion. In political arithmetic, it is necessary to substitute a

calculation of probabilities to mathematical exactness. That force which continually impels us to our own private interest, like gravity, acts incessantly, unless it meets with an obstacle to oppose it. The effect of

this force are the confused series of human actions. Punishments, which I would call political obstacles, prevent the fatal effects of private

interest, without destroying the impelling cause, which is that sensibility inseparable from man. The legislator acts, in this case, like a skilful

architect, who endeavours to counteract the force of gravity by combining

the circumstances which may contribute to the strength of his edifice.

The necessity of uniting in society being granted, together with the conventions which the opposite interests of individuals must necessarily require, a scale of crimes may be formed, of which the first degree should consist of those which immediately tend to the dissolution of society, and

the last of the smallest possible injustice done to a private member of that society. Between these extremes will be comprehended all actions contrary to the public good which are called criminal, and which descend by insensible degrees, decreasing from the highest to the lowest. If mathematical

calculation could be applied to the obscure and infinite combinations of

human actions, there might be a corresponding scale of punishments, descending from the greatest to the least; but it will be sufficient that

the wise legislator mark the principal divisions, without disturbing the

order, left to crimes of the first degree be assigned punishments of the

last. If there were an exact and universal scale of crimes and punishments,

we should there have a common measure of the degree of liberty and slavery, humanity and cruelty of different nations.

Any action which is not comprehended in the above mentioned scale will not

be called a crime, or punished as such, except by those who have an interest

in the denomination. The uncertainty of the extreme points of this scale

hath produced system of morality which contradicts the laws, multitude of

laws that contradict each other, and many which expose the best men to the severest punishments, rendering the ideas of vice and virtue vague and fluctuating and even their existence doubtful. Hence that fatal lethargy of political bodies, which terminates in their destruction.

Whoever reads, with a philosophic eye, the history of nations, and their

laws, will generally find, that the ideas of virtue and vice, of a good or

bad citizen, change with the revolution of ages, not in proportion to the alteration of circumstances, and consequently conformable to the common good, but in proportion to the passions and errors by which the different lawgivers were successively influenced. He will frequently observe that the passions and vices of one age are the foundation of the morality of the following; that violent passion, the offspring of fanaticism and enthusiasm, being weakened by time, which reduces all the phenomena of the natural and moral world to an equality, become, by degrees, the prudence of the age, and an useful instrument in the hands of the powerful or artful politician.

Hence the uncertainty of our notions of honour and virtue; an uncertainty

which will ever remain, because they change with the revolutions of time,

and names survive the things they originally signified; they change with the boundaries of states, which are often the same both in physical and moral geography.

Pleasure and pain are the only springs of actions in beings endowed with sensibility. Even amongst the motives which incite men to acts of religion,

the invisible legislator has ordained rewards and punishments. From a

partial distribution of these will arise that contradiction, so little

observed, because so common, I mean that of punishing by the laws the crimes which the laws have occasioned. If an equal punishment be ordained for two crimes that injure society in different degrees, there is nothing to deter

men from committing the greater as often as it is attended with greater advantage.

Of estimating the Degree of Crimes.

The foregoing reflections authorise me to assert that crimes are only to be measured by the injury done to society.

They err, therefore, who imagine that a crime is greater or less according

to the intention of the person by whom it is committed; for this will depend

on the actual impression of objects on the senses, and on the previous disposition of the mind; both which will vary in different persons, and even

in the same person at different times according to the succession of ideas, passions, and circumstances. Upon that system it would be necessary to form, not only a particular code for every individual, but a new penal law for

every crime. Men, often with the best intention, do the greatest injury to society, and, with the worst, do it the most essential services.

Others have estimated crimes rather by the dignity of the person offended

than by their consequences to society. If this were the true standard, the smallest irreverence to the Divine Being ought to be punished with

infinitely more severity than the assassination of a monarch.

aggravate the crime. But the fallacy of this opinion will appear on the

slightest consideration of the relations between man and man, and between God and man. The relations between man and man are relations of equality. Necessity alone hath produced, from the opposition of private passions and interests, the idea of public utility, which is the foundation of human

justice. The other are relations of dependence, between an imperfect

creature and his Creator, the most perfect of beings, who has reserved to himself the sole right of being both lawgiver and judge; for he alone can, without injustice, be, at the same time, both one and the other. If he hath decreed eternal punishments for those who disobey his will, shall an insect dare to put himself in the place of divine justice, or pretend to punish for

the Almighty, who is himself all sufficient, who cannot receive impressions

of pleasure or pain, and who alone, of all other beings, acts without being acted upon? The degree of sin depends on the malignity of the heart, which

is impenetrable to finite beings. How then can the degree of sin serve as a standard to determine the degree of crimes? If that were admitted, men may punish when God pardons, and pardon when God condemns; and thus act in opposition to the Supreme Being.

Of the Division of Crimes.

We have proved then, that crimes are to be estimated by the injury done to society. This is one of those palpable truths which though evident to the meanest capacity, yet by a combination of circumstances, are only known to a few thinking men in every nation, and in every age. But opinions, worthy

only of the despotism of Asia, and passions, armed with power and authority, have, generally by insensible, and sometimes by violent impressions on the timid credulity of men, effaced those simple ideas which perhaps constituted the first philosophy of an infant society. Happily the philosophy of the

present enlightened age seems again to conduct us to the same principles, and with that degree of certainty which is obtained by a rational

examination and repeated experience.

A scrupulous adherence to order would require, that we should now examine and distinguish the different species of crimes and the modes of punishment; but they are so variable in their nature, from the different circumstances

of ages and countries, that the detail would be tiresome and endless. It

will be sufficient for my purpose to point out the most general principles,

and the most common and dangerous errors, in order to undeceive as well those who, from a mistaken zeal for liberty, would introduce anarchy and confusion, as those who pretend to reduce society in general to the

regularity of a covenant.

Some crimes are immediately destructive of society, or its representative; others attack the private security of the life, property, or honour of individuals; and a third class consists of such actions as are contrary to

the laws which relate to the general good of the community.

The first, which are of the highest degree, as they are most destructive to society, are called crimes of leze-majesty (High Treason). Tyranny and ignorance, which have confounded the clearest terms and ideas, have given this appellation to crimes of a different nature, and consequently have established the same punishment for each; and, on this occasion, as on a thousand others, men have been sacrificed victims to a word. Every crime, even of the most private nature, injures society; but every crime does not threaten its immediate destruction. Moral as well as physical actions have

of nature, by time and space; it is therefore a sophistical interpretation,

the common philosophy of slaves, that would confound the limits of things established by eternal truth.

To these succeed crimes which are destructive of the security of

individuals. This security being the principal end of all society, and to

which every citizen hath an undoubted right, it becomes indispensably necessary, that to these crimes the greatest of punishments should be assigned.

The opinion, that every member of society has a right to do any thing that

is not contrary to the laws, without fearing any other inconveniences than

those which are the natural consequences of the action itself, is a

political dogma, which should be defended by the laws, inculcated by the magistrates, and believed by the people; a sacred dogma, without which there can be no lawful society, a just recompense for our sacrifice of that

universal liberty of action common to all sensible beings, and only limited

by our natural powers. By this principle our minds become free, active, and vigorous; by this alone we are inspired with that virtue which knows no

fear, so different from that pliant prudence, worthy of those only who can

bear a precarious existence.

Attempts, therefore, against the life and liberty of a citizen are crimes of

the highest nature. Under this head we comprehend not only assassinations

and robberies committed by the populace, but by grandees and magistrates, whose example acts with more force, and at a greater distance destroying the ideas of justice and duty among the subjects, and substituting that of the

right of the strongest, equally dangerous to those who exercise it and to

those who suffer.

Of Honour.

There is a remarkable difference between the civil laws, those jealous

guardians of life and property, and the laws of what is called honour, which particularly respects the opinion of others. Honour is a term which has been

the foundation of many long and brilliant reasonings, without annexing to it

any precise or fixed idea. How miserable is the condition of the human mind,

to which the most distant and least essential matters, the revolutions of

the heavenly bodies, are more distinctly known than the most interesting

truths of morality, which are always confused and fluctuating, as they

happen to be driven by the gales of passion, or received and transmitted by ignorance! But this will cease to appear strange, if it be considered, that

as objects, when too near the eye appear confused, so the too great vicinity

of the ideas of morality is the reason why the simple ideas of which they

are composed are easily confounded, but which must be separated before we can investigate the phenomena of human sensibility; and the intelligent

observer of human nature will cease to be surprised, that so many ties, and

such an apparatus of morality, are necessary to the security and happiness

of mankind.

Honour, then, is one of those complex ideas which are an aggregate not only

of simple ones, but of others so complicated, that, in their various modes

of affecting the human mind, they sometimes admit and sometimes exclude part of the elements of which they are composed, retaining only some few of the most common, as many algebraic quantities admit one common divisor. To find this common divisor of the different ideas attached to the word honour, it

The first laws and the first magistrates owed their existence to the

necessity of preventing the disorders which the natural despotism of

individuals would unavoidably produce. This was the object of the

establishment of society, and was, either in reality or in appearance, the principal design of all codes of laws, even the most pernicious. But the

more intimate connexions of men, and the progress of their knowledge, gave rise to an infinite number of necessities and mutual acts of friendship

between the members of society. These necessities were not foreseen by the laws, and could not be satisfied by the actual power of each individual. At

this epoch began to be established the despotism of opinion, as being the

only means of obtaining those benefits which the law could not procure, and

of removing those evils against which the laws were no security. 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 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 the despotism of the laws;

and in the second, the despotism of one man, annulling all civil existence, reduces the rest to a precarious and temporary personality. Honour, then, is one of the fundamental principles of those monarchies which are a limited despotism ; and in those, like revolutions in despotic states, it is a

momentary return to state of nature and original equality.

Of Duelling.

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 be 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.

other writers, viz. that the best method of preventing this crime is to

punish the aggressor, that is, the person who gave occasion to the duel, and

to acquit him who, without any fault on his side, is obliged to defend that

which is not sufficiently secured to him by the laws.

Of crimes which disturb the Public Tranquillity.

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. These should be the principal objects of the vigilance of a magistrate, and which

the French call police; but if this magistrate should act in an arbitrary

manner, and not in conformity to the code of laws) which ought to be in the hands of every member of the community, he opens a door to tyranny, which always surrounds the confines of political liberty.

I do not know of any exception to this general axiom, that Every member of 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 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 all mankind.

Of the Intent of Punishments.

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

of furious fanaticism or the impotency of tyrants, can be authorised 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 the criminal

from doing further injury to society, and 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 the strongest and most lasting

impressions on the minds of others, with the least torment to the body of

the criminal.

Of the Credibility of Witnesses.

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 connection with each other, and whose sensations are conformable to those of other men, may be a witness; but the credibility of his evidence will be in proportion as he is

interested in declaring or concealing the truth. 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; for in all these cases

they ought to be credited, when they have no interest in giving false

testimony.

The credibility of a witness, then, should only diminish in proportion to

the hatred, friendship, or connections, 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. that the credibility of a witness is

greater as the crime is more atrocious. Behold their inhuman maxim, dictated

by the most cruel imbecility. In atrocissimis, leviores conjecturae

sufficiunt, & licit judici jura transgredi. 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

the 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.

number of men should be deceived than that any person should exercise a power which God hath refused to every created being. In like manner, in

cases of wanton cruelty, the presumption is always against the accuser; for no man is cruel without some interest, 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.

Finally, the credibility of a witness is still when the question relates to

the words of a criminal; for the tone of voice, the gesture, all that

precedes, accompanies, and follows the different ideas which men annex to the same words, may so alter and modify a man's discourse, that it is almost impossible to repeat them precisely in the manner in which they were spoken. 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 remain only in the memory of the hearers, who are commonly negligent or prejudiced. It is infinitely easier, then, to found an accusation on the

words than an the actions of a man; for in these the number of circumstances urged against the accused afford him variety of means of justification.

Of Evidence and the Proofs of a Crime, and of the Form of Judgment.

The following general theorem is of great use determining the certainty of a 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; foe 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, the probability of the fact increases in proportion to the number of proofs; for

the falsehood of the one does not diminish the veracity of another.

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; that is to say, that though each of these, separately taken, does not exclude the possibility of innocence, it is nevertheless excluded by their union. It should be also observed, that the imperfect proofs, of which the accused, if innocent, might clear himself, and does not become perfect.

But it is much easier to feel this moral certainty of proofs than to define

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 or 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 summoning 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 inspires should be silent; that

superiority with which the fortunate look upon the unfortunate, and that

envy with which the inferior regard their superiors, should have no

influence. 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.

All trials should be public, that opinion, which is the best, or perhaps the

only cement of society, may curb the authority of the powerful, and the

passions of the judge, and that the people may say, "We are protected by the laws; we are not slaves"; a sentiment which inspires courage, and which is

the best tribute to a sovereign who knows his real interest. 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.

Of secret Accusations.

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 intrepid soldiers, to defend

their king and country? 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

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 argument 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? The necessity of protecting the informer from infamy; then 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, the punishment due to the crime of which one accuses another ought to be inflicted on the informer.

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 to 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 as there remains any doubt of his guilt? This 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

escape, and the feeble be condemned. These are the inconveniences 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 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 political society with an intention

that no hopes of impunity should induce others to commit the same. If it be true, that the number of those who from fear or virtue respect the laws is

greater than of those by whom they are violated, the risk of torturing an

innocent person is greater, as there is a greater probability that, c鎡eris paribus, an individual hath observed, than that he hath infringed the laws.

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? Perhaps the rack may be considered as the refiner's furnace.

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 incomprehensible fire. 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, were 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 r