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.
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.
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.
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.
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.
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.
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