Of Crimes and Punishments

Cesare Beccaria (1764)

Translated by E. D. Ingraham

Of Suicide.

Suicide is a crime which seems not to admit of punishment, properly speaking; for it cannot be inflicted but on the innocent, or upon an insensible dead body. In the first case, it is unjust and tyrannical, for political liberty supposes all punishments entirely personal; in the second, it has the same effect, by way of example, as the scourging a statue. Mankind love life too well; the objects that surround them, the seducing phantom of pleasure, and hope, that sweetest error of mortals, which makes men swallow such large draughts of evil, mingled with a very few drops of good, allure them too strongly, to apprehend that this crime will ever be common from its unavoidable impunity. The laws are obeyed through fear of punishment, but death destroys all sensibility. What motive then can restrain the desperate hand of suicide?

He who kills himself does a less injury to society than he who quits his country for ever; for the other leaves his property behind him, but this carries with him at least a part of his substance. Besides, as the strength of society consists in the number of citizens, he who quits one nation to reside in another, becomes a double loss. This then is the question : whether it be advantageous to society that its members should enjoy the unlimited privilege of migration?

Every law that is not armed with force, or which, from circumstances, must be ineffectual, should not be promulgated. Opinion, which reigns over the minds of men, obeys the slow and indirect impressions of the legislator, but resists them when violently and directly applied; and useless laws communicate their insignificance to the most salutary, which are regarded more as obstacles to be surmounted than as safeguards of the public good. But further, our preceptions being limited, by enforcing the observance of laws which are evidently useless, we destroy the influence of the most salutary.

From this principle a wise dispenser of public happiness may draw some useful consequences, the explanation of which would carry me too far from my subject, which is to prove the inutility of making the nation a prison. Such a law is vain; because, unless inaccessible rocks or impassible seas divide the country from all others, how will it be possible to secure every point of the circumference, or how will you guard the guards themselves? Besides, this crime once committed cannot be punished; and to punish it before hand would be to punish the intention and not the action, the will, which is entirely out of the power of human laws. To punish the absent by confiscating his effects, besides the facility of collusion, which would inevitably be the case, and which, without tyranny, could not be prevented, would put a stop to all commerce with other nations. To punish the criminal when he returns, would be to prevent him from repairing the evil he had already done to society, by making his absence perpetual. Besides, any prohibition would increase the desire of removing, and would infallibly prevent strangers from settling in the country.

What must we think of a government which has no means but fear to keep its subjects in their own country, to which, by the first impressions of their infancy, they are so strongly attached. The most certain method of keeping men at home is to make them happy; and it is the interest of every state to turn the balance, not only of commerce, but of felicity, in favour of its subjects. The pleasures of luxury are not the principle sources of this happiness, though, by preventing the too great accumulation of wealth in a few hands, they become a necessary remedy against the too great inequality of individuals, which always increases with the progress of society.

When the populousness of a country does not increase in proportion to its extent, luxury favours despotism for where men are most dispersed there is least industry, and where there is least industry the dependence of the poor upon the luxury of the rich is greatest, and the union of the oppressed against the oppressors is least to be feared. In such circumstances, rich and powerful men more easily command distinction, respect, and service, by which they are raised to a greater height above the poor; for men are more independent the less they are observed, and are least observed when most numerous. On the contrary, when the number of people is too great in proportion to the extent of a country, luxury is a check to despotism; because it is a spur to industry, and because the labour of the poor affords so many pleasures to the rich, that they disregard the luxury of ostentation, which would remind the people of their dependence. Hence we see, that, in vast and depopulated states, the luxury of ostentation prevails over that of convenience; but in countries more populous, the luxury of convenience tends constantly to diminish the luxury of ostentation.

The pleasures of luxury have this inconvenience, that though they employ a great number of hands, yet they are only enjoyed by a few, whilst the rest who do not partake of them, feel the want more sensibly on comparing their state with that of others. Security and liberty, restrained by the laws, are the basis of happiness, and when attended by these, the pleasures of luxury favour population, without which they become the instruments of tyranny. As the most noble and generous animals fly to solitude and inaccessible deserts, and abandon the fertile plains to man their greatest enemy, so men reject pleasure itself when offered by the hand of tyranny.

But, to return:---If it be demonstrated that the laws which imprison men in their own country are vain and unjust, it will be equally true of those which punish suicide; for that can only be punished after death, which is in the power of God alone; but it is no crime with regard to man, because the punishment falls on an innocent family. If it be objected, that the consideration of such a punishment may prevent the crime, I answer, that he who can calmly renounce the pleasure of existence, who is so weary of life as to brave the idea of eternal misery, will never be influenced by the more distant and less powerful considerations of family and children.

Of Smuggling.

Smuggling is a real offence against the sovereign and the nation; but the punishment should not brand the offender with infamy, because this crime is not infamous in the public opinion. By inflicting infamous punishments for crimes that are not reputed so, we destroy that idea where it may be useful. If the same punishment be decreed for killing a pheasant as for killing a man, or for forgery, all difference between those crimes will shortly vanish. It is thus that moral sentiments are destroyed in the heart of man; sentiments, the work of many ages and of much bloodshed; sentiments that are so slowly and with so much difficulty produced, and for the establishment of which such sublime motives and such an apparatus of ceremonies were thought necessary. This crime is owing to the laws themselves; for the higher the duties the greater is the advantage, and consequently the temptation; which temptation is increased by the facility of perpetration, when the circumference that is guarded is of great extent, and the merchandise prohibited is small in bulk. The seizure and loss of the goods attempted to be smuggled, together with those that are found along with them, is just, but it would be better to lessen the duty, because men risk only in proportion to the advantage expected.

This crime being a theft of what belongs to the prince, and consequently to the nation, why is it not attended with infamy? I answer, that crimes which men consider as productive of no bad consequences to themselves, do not interest them sufficiently to excite their indignation. The generality of mankind, upon whom remote consequences make no impression, do not see the evil that may result from the practice of smuggling, especially if they reap from it any present advantage. They only perceive the loss sustained by the prince. They are not then interested in refusing their esteem to the smuggler, as to one who has committed a theft or a forgery, or other crimes, by which they themselves may suffer, from this evident principle, that a sensible being only interests himself in those evils with which he is acquainted,

Shall this crime then, committed by one who has nothing to lose, go unpunished? No. There are certain species of smuggling, which so particularly affect the revenue, a part of government so essential, and managed with so much difficulty, that they deserve imprisonment, or even slavery; but yet of such a nature as to be proportioned to the crime. For example, it would be highly unjust, that a smuggler of tobacco should suffer the same punishment with a robber or assassin; but it would be most conformable to the nature of the offence, that the produce of his labour should be applied to the use of the crown, which he intended to defraud.

Of bankrupts

The necessity of good faith in contracts, and the support of commerce, oblige the legislator to secure for the creditors the persons of bankrupts. It is, however, necessary to distinguish between the fraudulent and the honest bankrupt. The fraudulent bankrupt should be punished in the same manner with him who adulterates the coin; for, to falsify a piece of coin, which is a pledge of the mutual obligations between citizens, is not a greater crime than to violate the obligations themselves. But the bankrupt who, after a strict examination, has proved before proper judges, that either the fraud or losses of others, or misfortunes unavoidable by human prudence, have stripped him of his substance, upon what barbarous pretence is he thrown into prison, and thus deprived of the only remaining good, the melancholy enjoyment of mere liberty? Why is he ranked with criminals, and in despair compelled to repent of his honesty? Conscious of his innocence, he lived easy and happy under the protection of those laws which, it is true, he violated, but not intentionally; laws dictated by the avarice of the rich, and accepted by the poor, seduced by that universal and flattering hope, which makes men believe that all unlucky accidents are the lot of others, and the most fortunate only their share. Mankind, when influenced by the first impressions, love cruel laws, although, being subject to them themselves, it is the interest of every person that they should be as mild as possible; but the fear of being injured is always more prevalent than the intention of injuring others.

But, to return to the honest bankrupt: let his debt, if you will, not be considered as cancelled, till the payment of the whole; let him be refused the liberty of leaving the country without leave of his creditors, or of carrying into another nation that industry which, under a penalty, he should be obliged to employ for their benefit; but what pretence can justify the depriving an innocent though unfortunate man of his liberty, without the least utility to his creditors?

But, say they, the hardships of confinement will induce him to discover his fraudulent transactions; an event that can hardly be supposed, after a rigorous examination of his conduct and affairs. But if they are not discovered, he will escape unpunished. It is, I think, a maxim of government, that the importance of the political inconveniencies arising from the impunity of a crime, are directly as the injury to the public, and inversely as the difficulty of proof.

It will be necessary to distinguish fraud, attended with aggravating circumstances, from simple fraud, and that from perfect innocence. For the first, let there be ordained the same punishment as for forgery; for the second a less punishment, but with the loss of liberty; and if perfectly honest, let the bankrupt himself choose the method of re-establishing himself, and of satisfying his creditors; or, if he should appear not to have been strictly honest, let that be determined by his creditors; but these distinctions should be fixed by the laws, which alone are impartial, and not by the arbitrary and dangerous prudence of judges.

With what ease might a sagacious legislator prevent the greatest part of fraudulent bankruptcies, and remedy the misfortunes that befall the honest and industrious! A public register of all contracts, with the liberty of consulting it allowed to every citizen: a public fund, formed by a contribution of the opulent merchants, for the timely assistance of unfortunate industry, were establishments that could produce no real inconveniencies, and many advantages. But, unhappily, the most simple, the easiest, yet the wisest laws, that wait only for the nod of the legislator, to diffuse through nations wealth, power, and felicity, laws which would be regarded by future generations with eternal gratitude, are either unknown or rejected. A restless and trifling spirit, the timid prudence of the present moment, a distrust and aversion to the most useful novelties, possess the minds of those who are empowered to regulate the actions of mankind.

Of Sanctuaries.

ARE sanctuaries just? Is a convention between nations mutually to give up their criminals useful?

In the whole extent of a political state there should be no place independent of the laws. Their power should follow every subject, as the shadow follows the body. Sanctuaries and impunity differ only in degree, and as the effect of punishments depends more on their certainty than their greatness, men are more strongly invited to crimes by sanctuaries than they are deterred by punishment. To increase the number of sanctuaries is to erect so many little sovereignties; for where the laws have no power, new bodies will be formed in opposition to the public good, and a spirit established contrary to that of the state. History informs us, that from the use of sanctuaries have arisen the greatest revolutions in kingdoms and in opinions.

Some have pretended, that in whatever country a crime, that is, an action contrary to the laws of society, be committed, the criminal may be justly punished for it in any other; as if the character of subject were indelible, or synonymous with or worse than that of slave; as if a man could live in one country and be subject to the laws of another, or be accountable for his actions to two sovereigns, or two codes of laws often contradictory. There are also those who think, that an act of cruelty committed, for example, at Constantinople may be punished at Paris, for this abstracted reason, that he who offends humanity should have enemies in all mankind, and be the object of universal execration; as if judges were to be the knights-errant of human nature in general, rather than guardians of particular conventions between men. The place of punishment can certainly be no other than that where the crime was committed; for the necessity of punishing an individual for the general good, subsists there, and there only. A villain, if he has not broke through the conventions of a society, of which, by my supposition, he was not a member, may be feared, and by force banished and excluded from that society, but ought not to be formally punished by the laws, which were only intended to maintain the social compact, and not to punish the intrinsic malignity of actions.

Whether it be useful that nations should mutually deliver up their criminals? Although the certainty of there being no part of the earth where crimes are not punished, may be a means of preventing them, I shall not pretend to determine this question, until laws more conformable to the necessities, and rights of humanity, and until milder punishments, and the abolition of the arbitrary power of opinion, shall afford security to virtue and innocence when oppressed; and until tyranny shall be confined to the plains of Asia, and Europe acknowledge the universal empire of reason by which the interests of sovereigns and subjects are best united.

Of Rewards for apprehending or killing Criminals.

Let us now inquire, whether it be advantageous to society, to set a price on the head of a criminal, and so to make of every citizen an executioner? If the offender hath taken refuge in another state, the sovereign encourages his subjects to commit a crime, and to expose themselves to a just punishment; he insults that nation, and authorises the subjects to commit on their neighbours similar usurpations. If the criminal still remain in his own country, to set a price upon his head is the strongest proof of the weakness of the government. He who has strength to defend himself will not purchase the assistance of another. Besides, such an edict confounds all the ideas of virtue and morality, already too wavering in the mind of man. At one time treachery is punished by the laws, at another encouraged. With one hand the legislator strengthens the ties of kindred and friendship, and with the other rewards the violation of both. Always in contradiction with himself, now he invites the suspecting minds of men to mutual confidence, and now he plants distrust in every heart. To prevent one crime he gives birth to a thousand. Such are the expedients of weak nations, whose laws are like temporary repairs to a tottering fabric. On the contrary, as a nation becomes more enlightened, honesty and mutual confidence become more necessary, and are daily tending to unite with sound policy. Artifice, cabal, and obscure and indirect actions are more easily discovered, and the interest of the whole is better secured against the passions of the individual.

Even the times of ignorance, when private virtue was encouraged by public morality, may afford instruction and example to more enlightened ages, But laws which reward treason excite clandestine war and mutual distrust, and oppose that necessary union of morality and policy which is the foundation of happiness and universal peace.

Of Attempts, Accomplices, and Pardon.

The laws do not punish the intention; nevertheless, an attempt, which manifests the intention of committing a crime, deserves a punishment, though less, perhaps, than if the crime were actually perpetrated. The importance of preventing even attempts to commit a crime sufficiently authorises a punishment; but, as there may be an interval of time between the attempt and the execution, it is proper to reserve the greater punishment for the actual commission, that even after the attempt there may be a motive for desisting.

In like manner, with regard to the accomplices, they ought not to suffer so severe a punishment as the immediate perpetrator of the crime: but this for a different reason. When a number of men unite, and run a common risk, the greater the danger, the more they endeavour to distribute it equally. Now, if the principals be punished more severely than the accessories, it will prevent the danger from being equally divided, and will increase the difficulty of finding a person to execute the crime, as his danger is greater by the difference of the punishment. There can be but one exception to this rule, and that is, when the principal receives a reward from the accomplices. In that case, as the difference of the danger is compensated, the punishment should be equal. These reflections may appear too refined to those who do not consider, that it is of great importance that the laws should leave the associates as few means as possible of agreeing among themselves.

In some tribunals a pardon is offered to an accomplice in a great crime, if he discover his associates. This expedient has its advantages and disadvantages. The disadvantages are, that the law authorises treachery, which is detested even by the villains themselves, and introduces crimes of cowardice, which are much more pernicious to a nation than crimes of courage. Courage is not common, and on1v wants a benevolent power to direct it to the public good. Cowardice, on the contrary, is a frequent, self-interested, and contagious evil, which can never be improved into a virtue. Besides, the tribunal which has recourse to this method, betrays its fallibility, and the laws their weakness, by imploring the assistance of those by whom they are, violated.

The advantages are, that it prevents great crimes, the effects of which being public, and the perpetrators concealed, terrify the people. It also contributes to prove, that he who violates the laws, which are public conventions, will also violate private compacts. It appears to me that a general law, promising a reward to every accomplice who discovers his associates, would be better than a special declaration in every particular case; because it would prevent the union of those villains, as it would inspire a mutual distrust, and each would be afraid of exposing himself alone to danger. The accomplice, however, should be pardoned, on condition of transportation.---But it is in vain that I torment myself with endeavouring to extinguish the remorse I feel in attempting to induce the sacred laws, the monument of public confidence, the foundation of human morality, to authorise dissimulation and perfidy. But what an example does it offer to a nation to see the interpreters of the laws break their promise of pardon, and on the strength of learned subtleties, and to the scandal of public faith, drag him to punishment who hath accepted of their invitation! Such examples are not uncommon, and this is the reason that political society is regarded as a complex machine, the springs of which are moved at pleasure by the most dexterous or most powerful.

Of suggestive Interrogations.

The laws forbid suggestive interrogations; that is, according to the civilians, questions which, with regard to the circumstances of the crime, are special when they should be general; or, in other words, those questions which, having an immediate reference to the crime, suggests to the criminal an immediate answer. Interrogations, according to the law, ought to lead to the fact indirectly and obliquely, but never directly or immediately. The intent of this injunction is, either that they should not suggest to the accused an immediate answer that might acquit him, or that they think it contrary to nature that a man should accuse himself. But whatever be the motive, the laws have fallen into a palpable contradiction, in condemning suggestive interrogations, whilst they authorise torture. Can there be an interrogation more suggestive than pain? Torture will suggest to a robust villain an obstinate silence, that he may exchange a greater punishment for a less; and to a feeble man confession, to relieve him from the present pain, which affects him more than the apprehension of the future. If a special interrogation be contrary to the right of nature, as it obliges a man to accuse himself, torture will certainly do it more effectually. But men are influenced more by the names than the nature of things.

He who obstinately refuses to answer the interrogatories deserves a punishment, which should be fixed by the laws, and that of the severest kind; the criminals should not, by their silence, avade the example which they owe the public. But this punishment is not necessary when the guilt of the criminal is indisputable; because in that case interrogation is useless, as is likewise his confession, when there are, without it, proofs sufficient. This last case is most common, for experience shews, that in the greatest number of criminal prosecutions the culprit pleads not guilty.

Of a particular Kind of Crimes.

The reader will perceive that I have omitted speaking of a certain class of crimes which has covered Europe with blood, and raised up those horrid piles, from whence, amidst clouds of whirling smoke, the groans of human victims, the crackling of their bones, and the frying of their still panting bowels, were a pleasing spectacle and agreeable harmony to the fanatic multitude. But men of understanding will perceive that the age and country in which I live, will not permit me to inquire into the nature of this crime. It were too tedious and foreign to my subject to prove the necessity of a perfect uniformity of opinions in a state, contrary to the examples of many nations; to prove that opinions, which differ from one another only in some subtle and obscure distinctions, beyond the reach of human capacity, may nevertheless disturb the public tranquillity, unless one only religion be established by authority; and that some opinions, by being contrasted and opposed to each other, in their collision strike out the truth; whilst others, feeble in themselves, require the support of power and authority. It would, I say, carry me too far, where I to prove, that, how odious soever is the empire of force over the opinions of mankind, from whom it only obtains dissimulation followed by contempt, and although it may seem contrary to the spirit of humanity and brotherly love, commanded us by reason, and authority, which we more respect, it is nevertheless necessary and indispensable. We are to believe, that all these paradoxes are solved beyond a doubt, and are conformable to the true interest of mankind, if practised by a lawful authority. I write only of crimes which violate the laws of nature and the social contract, and not of sins, even the temporal punishments of which must be determined from other principles than those of limited human philosophy.

Of false Ideas of Utility.

A principal source of errors and injustice are false ideas of utility. For example: that legislator has false ideas of utility who considers particular more than general conveniencies, who had rather command the sentiments of mankind than excite them, and dares say to reason, `Be thou a slave'; who would sacrifice a thousand real advantages to the fear of an imaginary or trifling inconvenience; who would deprive men of the use of fire for fear of their being burnt, and of water for fear of their being drowned; and who knows of no means of preventing evil but by destroying it.

The laws of this nature are those which forbid to wear arms, disarming those only who are not disposed to commit the crime which the laws mean to prevent. Can it be supposed, that those who have the courage to violate the most sacred laws of humanity, and the most important of the code, will respect the less considerable and arbitrary injunctions, the violation of which is so easy, and of so little comparative importance? Does not the execution of this law deprive the subject of that personal liberty, so dear to mankind and to the wise legislator? and does it not subject the innocent to all the disagreeable circumstances that should only fall on the guilty? It certainly makes the situation of the assaulted worse, and of the assailants better, and rather encourages than prevents murder, as it requires less courage to attack unarmed than armed persons.

It is a false idea of utility that would give to a multitude of sensible beings that symmetry and order which inanimate matter is alone capable of receiving; to neglect the present, which are the only motives that act with force and constancy on the multitude for the more distant, whose impressions are weak and transitory, unless increased by that strength of imagination so very uncommon among mankind. Finally, that is a false idea of utility which, sacrificing things to names, separates the public good from that of individuals.

There is this difference between a state of society and a state of nature, that a savage does no more mischief to another than is necessary to procure some benefit to himself: but a man in society is sometimes tempted, from a fault in the laws, to injure another without any prospect of advantage. The tyrant inspires his vassals with fear and servility, which rebound upon him with double force, and are the cause of his torment. Fear, the more private and domestic it is, the less dangerous is it to him who makes it the instrument of his happiness; but the more it is public, and the greater number of people it affects, the greater is the probability that some mad, desperate~ or designing person will seduce others to his party by flattering expectations; and this will be the more easily accomplished as the danger of the enterprise will be divided amongst a greater number, because the value the unhappy set upon their existence is less, as their misery is greater.

 Writings of Cesare Beccaria

 Classical Liberals