Of Crimes and Punishments

Cesare Beccaria (1764)

Translated by E. D. Ingraham

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 will be necessary to go back to the original formation of society.

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.

It may not be without its use to repeat here what has been mentioned by 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 committed. Is it possible that torments and useless cruelty, the instrument 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,

But, to return: in the case of witchcraft, it is much more probable that a 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 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 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 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 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.

 Writings of Cesare Beccaria

 Classical Liberals