BY THE
MARQUIS CESARE BECCARIA.
TRANSLATED.
‘In rebus quibuscumque difficilioribus non expectandum ut quis
simul et serat et metat, sed præparatione opus est, ut per gradus
maturescant.’—Bacon.
Some remnants of the laws of an ancient conquering
people, which a prince who reigned in Constantinople
some 1,200 years ago caused to be compiled, mixed
up afterwards with Lombard rites and packed in the
miscellaneous volumes of private and obscure commentators—these
are what form that set of traditional
opinions which from a great part of Europe
receive nevertheless the name of laws; and to this
day it is a fact, as disastrous as it is common, that
some opinion of Carpzovius, some old custom pointed
out by Clarus, or some form of torture suggested in
terms of complacent ferocity by Farinaccius, constitute
the laws, so carelessly followed by those, who in all
trembling ought to exercise their government over
the lives and fortunes of men. These laws, the dregs
of the most barbarous ages, are examined in this
book in so far as regards criminal jurisprudence, and
I have dared to expose their faults to the directors
of the public happiness in a style which may keep at
a distance the unenlightened and intolerant multitude.
The spirit of frank inquiry after truth, of freedom
from commonplace opinions, in which this book
is written, is a result of the mild and enlightened
Government under which the Author lives. The
great monarchs, the benefactors of humanity, who
are now our rulers, love the truths expounded, with
force but without fanaticism, by the obscure philosopher,
who is only roused to indignation by the
excesses of tyranny, but is restrained by reason;
and existing abuses, for whosoever well studies all
the circumstances, are the satire and reproach of
past ages, and by no means of the present age or of
its lawgivers.
Whoever, therefore, shall wish to honour me with
his criticisms, I would have begin with a thorough
comprehension of the purpose of my work—a purpose
which, so far from diminishing legitimate authority,
will serve to increase it, if opinion can effect more
over men’s minds than force, and if the mildness and
humanity of the government shall justify it in the eyes
of all men. The ill-conceived criticisms that have
been published against this book are founded on confused
notions, and compel me to interrupt for a moment
the arguments I was addressing to my enlightened
readers, in order to close once for all every door
against the misapprehensions of timid bigotry or
against the calumnies of malice and envy.
There are three sources of the moral and political
principles which govern mankind, namely, revelation,
natural law, and social conventions. With regard to
their principal object there is no comparison between
the first and the other two, but they all resemble one
another in this, that they all three conduce to the
happiness of this present mortal life. To consider the
different relations of social conventions is not to exclude
those of revelation and natural law; rather it is
the thousandfold changes which revelation and natural
law, divine and immutable though they be, have
undergone in the depraved mind of man, by his own
fault, owing to false religions and arbitrary notions of
virtue and vice, that make it appear necessary to examine,
apart from all other considerations, the result
of purely human conventions, expressed or implied,
for the public need and welfare: this being an idea
in which every sect and every moral system must
necessarily agree; and it will always be a laudable
endeavour, which seeks to constrain the headstrong
and unbelieving to conform to the principles that induce
men to live together in society. There are,
then, three distinct kinds of virtue and vice—the
religious, the natural, and the political. These three
kinds ought never to conflict, although all the consequences
and duties that flow from any one of them
do not necessarily flow from the others. The natural
law does not require all that revelation requires,
nor does the purely social law require all that natural
law requires; but it is most important to distinguish
the consequences of the conventional law—that is,
of the express or tacit agreements among men—from
the consequences of the natural law or of revelation,
because therein lies the limit of that power,
which can rightly be exercised between man and man
without a special mandate from the Supreme Being.
Consequently the idea of political virtue may, without
any slur upon it, be said to be variable; that of natural
virtue would be always clear and manifest, were it not
obscured by the stupidity or the passions of men;
whilst the idea of religious virtue remains ever one
and the same, because revealed directly from God and
by Him preserved.
It would, therefore, be a mistake to ascribe to one,
who only discusses social conventions and their consequences,
principles contrary either to natural law or to
revelation, for the reason that he does not discuss them.
It would be a mistake, when he speaks of a state of
war as anterior to a state of society, to understand it
in the sense of Hobbes, as meaning that no obligation
nor duty is prior to the existence of society, instead of
understanding it as a fact due to the corruption of
human nature and the want of any expressed sanction.
It would be a mistake to impute it as a fault to a
writer who is considering the results of the social compact
that he does not admit them as pre-existent to
the formation of the compact itself.
Divine justice and natural justice are in their
essence immutable and constant, because the relation
between similar things is always the same; but human
or political justice, being nothing more than a
relation between a given action and a given state of
society, may vary according as such action becomes
necessary or useful to society; nor is such justice
easily discernible, save by one who analyses the complex
and very changeable relations of civil combinations.
When once these principles, essentially distinct,
become confused, there is no more hope of sound
reasoning about public matters. It appertains to the
theologian to fix the boundaries between the just and
the unjust, in so far as regards the intrinsic goodness
or wickedness of an act; to fix the relations between
the politically just and unjust appertains to the publicist;
nor can the one object cause any detriment to
the other, when it is obvious how the virtue that is
purely political ought to give place to that immutable
virtue which emanates from God.
Whoever, then, I repeat, will honour me with his
criticisms, let him not begin by supposing me to advocate
principles destructive of virtue or religion, seeing
that I have shown that such are not my principles;
and instead of his proving me to be an infidel or a
rebel, let him contrive to find me a bad reasoner or a
shortsighted politician; but let him not tremble at
every proposition on behalf of the interests of humanity;
let him convince me either of the inutility or
of the possible political mischief of my principles; let
him prove to me the advantage of received practices. I
have given a public testimony of my religion and of
my submission to my sovereign in my reply to the
Notes and Observations; to reply to other writings
of a similar nature would be superfluous; but whoever
will write with that grace which becomes honest
men, and with that knowledge which shall relieve
me from the proof of first principles, of what character
soever, he shall find in me not so much a man
who is eager to reply as a peaceable lover of the
truth.
Men for the most part leave the regulation of their
chief concerns to the prudence of the moment, or to
the discretion of those whose interest it is to oppose
the wisest laws; such laws, namely, as naturally help
to diffuse the benefits of life, and check that tendency
they have to accumulate in the hands of a few, which
ranges on one side the extreme of power and happiness,
and on the other all that is weak and wretched.
It is only, therefore, after having passed through a
thousand errors in matters that most nearly touch
their lives and liberties, only after weariness of evils
that have been suffered to reach a climax, that men
are induced to seek a remedy for the abuses which
oppress them, and to recognise the clearest truths,
which, precisely on account of their simplicity, escape
the notice of ordinary minds, unaccustomed as they
are to analyse things, and apt to receive their impressions
anyhow, from tradition rather than from inquiry.
We shall see, if we open histories, that laws, which
are or ought to be covenants between free men, have
generally been nothing but the instrument of the
passions of some few men, or the result of some
accidental and temporary necessity. They have
never been dictated by an unimpassioned student of
human nature, able to concentrate the actions of a
multitude of men to a single point of view, and to
consider them from that point alone—the greatest
happiness divided among the greatest number. Happy
are those few nations which have not waited for the
slow movement of human combinations and changes
to cause an approach to better things, after intolerable
evils, but have hastened the intermediate steps
by good laws; and deserving is that philosopher
of the gratitude of mankind, who had the courage,
from the obscurity of his despised study, to
scatter abroad among the people the first seeds, so
long fruitless, of useful truths.
The knowledge of the true relations between a
sovereign and his subjects, and of those between
different nations; the revival of commerce by the
light of philosophical truths, diffused by printing;
and the silent international war of industry, the most
humane and the most worthy of rational men—these
are the fruits which we owe to the enlightenment of
this century. But how few have examined and combated
the cruelty of punishments, and the irregularities
of criminal procedures, a part of legislation so
elementary and yet so neglected in almost the whole
of Europe; and how few have sought, by a return to
first principles, to dissipate the mistakes accumulated
by many centuries, or to mitigate, with at least that
force which belongs only to ascertained truths, the
excessive caprice of ill-directed power, which has presented
up to this time but one long example of lawful
and cold-blooded atrocity! And yet the groans of
the weak, sacrificed to the cruelty of the ignorant or
to the indolence of the rich; the barbarous tortures,
multiplied with a severity as useless as it is prodigal,
for crimes either not proved or quite chimerical; the
disgusting horrors of a prison, enhanced by that which
is the cruellest executioner of the miserable—namely,
uncertainty;—these ought to startle those rulers whose
function it is to guide the opinion of men’s minds.
The immortal President, Montesquieu, has treated
cursorily of this matter; and truth, which is indivisible,
has forced me to follow the luminous footsteps of this
great man; but thinking men, for whom I write, will
be able to distinguish my steps from his. Happy
shall I esteem myself if, like him, I shall succeed in
obtaining the secret gratitude of the unknown and
peaceable followers of reason, and if I shall inspire
them with that pleasing thrill of emotion with which
sensitive minds respond to the advocate of the interests
of humanity.
To examine and distinguish all the different sorts
of crimes and the manner of punishing them would
now be our natural task, were it not that their nature,
which varies with the different circumstances of times
and places, would compel us to enter upon too vast
and wearisome a mass of detail. But it will suffice to
indicate the most general principles and the most
pernicious and common errors, in order to undeceive
no less those who, from a mistaken love of liberty,
would introduce anarchy, than those who would be
glad to reduce their fellow-men to the uniform regularity
of a convent.
What will be the penalty suitable for such and
such crimes?
Is death a penalty really useful and necessary for
the security and good order of society?
Are torture and torments just, and do they attain
the end which the law aims at?
What is the best way of preventing crimes?
Are the same penalties equally useful in all
times?
What influence have they on customs?
These problems deserve to be solved with such
geometrical precision as shall suffice to prevail over
the clouds of sophistication, over seductive eloquence,
or timid doubt. Had I no other merit than that of
having been the first to make clearer to Italy that
which other nations have dared to write and are
beginning to practise, I should deem myself fortunate;
but if, in maintaining the rights of men and of invincible
truth, I should contribute to rescue from
the spasms and agonies of death any unfortunate
victim of tyranny or ignorance, both so equally fatal,
the blessings and tears of a single innocent man in
the transports of his joy would console me for the
contempt of mankind.
From political morality, unless founded on the immutable
sentiments of mankind, no lasting advantage
can be hoped. Whatever law deviates from
these sentiments will encounter a resistance which
will ultimately prevail over it, just in the same way
as a force, however slight, if constantly applied, will
prevail over a violent motion applied to any physical
body.
If we consult the human heart we shall therein
discover the fundamental principles of the real right
of the sovereign to punish crimes.
No man has gratuitously parted with a portion of
his own liberty with a view to the public good; that
is a chimera which only exists in romances. Each
one of us would wish, if it were possible, that the
covenants which bind others should not bind himself.
There is no man but makes himself the central object
of all the combinations of the globe.
The multiplication of the human race, slight in
the abstract, but far in excess of the means afforded
by nature, barren and deserted as it originally was, for
the satisfaction of men’s ever increasing wants, caused
the first savages to associate together. The first
unions necessarily led to others to oppose them, and
so the state of war passed from individuals to nations.
Laws are the conditions under which men, leading
independent and isolated lives, joined together in
society, when tired of living in a perpetual state of
war, and of enjoying a liberty which the uncertainty
of its tenure rendered useless. Of this liberty they
voluntarily sacrificed a part, in order to enjoy the
remainder in security and quiet. The sum-total of
all these portions of liberty, sacrificed for the good
of each individually, constitutes the sovereignty of a
nation, and the sovereign is the lawful trustee and
administrator of these portions. But, besides forming
this trust-fund, or deposit, it was necessary to protect
it from the encroachments of individuals, whose aim
it ever is not only to recover from the fund their own
deposit, but to avail themselves of that contributed
by others. ‘Sensible motives,’ were therefore wanted
to divert the despotic will of the individual from re-plunging
into their primitive chaos the laws of society.
Such motives were found in punishments, established
against transgressors of the laws; and I call them
sensible motives, because experience has shown that
the majority of men adopt no fixed rules of conduct,
nor avoid that universal principle of dissolution, observable
alike in the moral as in the physical world,
save by reason of motives which directly strike the
senses and constantly present themselves to the mind,
counterbalancing the strong impressions of private
passions, opposed as they are to the general welfare;
not eloquence, nor declamations, nor the most sublime
truths have ever sufficed to curb the passions for any
length of time, when excited by the lively force of
present objects.
As it, then, was necessity which constrained men
to yield a part of their individual liberty, it is certain
that each would only place in the general deposit the
least possible portion—only so much, that is, as would
suffice to induce others to defend it. The aggregate
of these least possible portions constitutes the
right of punishment; all that is beyond this is an
abuse and not justice, a fact but not a right.[64] Punishments
which exceed what is necessary to preserve the
deposit of the public safety are in their nature unjust;
and the more just punishments are, the more sacred
and inviolable is personal security, and the greater the
liberty that the sovereign preserves for his subjects.
The first consequence of these principles is, that the
laws alone can decree punishments for crimes, and
this authority can only rest with the legislator, who
represents collective society as united by a social
contract. No magistrate (who is part of society) can
justly inflict punishments upon another member of
the same society. But since a punishment that
exceeds the legally fixed limit is the lawful punishment
plus another one, a magistrate can, under no
pretext of zeal or the public good, add to the penalty
already decreed against a delinquent citizen.
The second consequence is, that the sovereign,
who represents society itself, can only form general
laws, obligatory on all; he cannot judge whether
any one in particular has broken the social compact,
for in that case the nation would be divided into two
parties, one represented by the sovereign, asserting
the violation of such contract; the other by the
accused, denying the same. Hence the necessity of
a third person to judge of the fact; in other words, of
a magistrate, whose decisions shall simply consist of
affirmations or denials of particular facts, and shall
also be subject to no appeal.
The third consequence is this: if it were proved
that the severity of punishments were simply useless
(to say nothing of being directly opposed to the
public good and to the very object of preventing
crimes), even in that case it would be contrary not
only to those beneficent virtues that flow from an
enlightened reason, which prefers to rule over happy
human beings than over a flock of slaves, the
constant victims of timid cruelty, but it would be
also contrary to justice and to the nature of the
social contract itself.
There is also a fourth consequence of the above
principles: that the right to interpret penal laws
cannot possibly rest with the criminal judges, for the
very reason that they are not legislators. The judges
have not received the laws from our ancestors as a
family tradition, as a legacy that only left to posterity
the duty of obeying them, but they receive them from
living society, or from the sovereign that represents it
and is the lawful trustee of the actual result of men’s
collective wills; they receive them, not as obligations
arising from an ancient oath[65] (null, because it bound
wills not then in existence, and iniquitous, because it
reduced men from a state of society to that of a
flock), but as the result of the tacit or expressed oath
made to the sovereign by the united wills of living
subjects, as chains necessary for curbing and regulating
the disorders caused by private interests. This
is the natural and real source of the authority of
the laws.
Who, then, will be the rightful interpreter of the
laws? Will it be the sovereign, the trustee of the
actual wills of all, or the judge, whose sole function
it is to examine whether such and such a man has
committed an illegal act or not?
In every criminal case a judge ought to form a
complete syllogistic deduction, in which the statement
of the general law constitutes the major premiss;
the conformity or non-conformity of a particular
action with the law, the minor premiss; and acquittal
or punishment, the conclusion. When a judge is
obliged, or of his own accord wishes, to make even
no more than two syllogisms, the door is opened to
uncertainty.
Nothing is more dangerous than that common
axiom, ‘We must consult the spirit of the laws.’ It
is like breaking down a dam before the torrent of
opinions. This truth, which seems a paradox to
ordinary minds, more struck as they are by a little
present inconvenience than by the pernicious but
remote consequences which flow from a false principle
enrooted among a people, seems to me to be
demonstrated. Our knowledge and all our ideas are
reciprocally connected together; and the more complicated
they are, the more numerous are the approaches
to them, and the points of departure. Every
man has his own point of view—a different one at
different times; so that ‘the spirit of the laws’ would
mean the result of good or bad logic on the part of a
judge, of an easy or difficult digestion; it would depend
now on the violence of his passions, now on the
feebleness of the sufferer, on the relationship between
the judge and the plaintiff, or on all those minute
forces which change the appearances of everything
in the fluctuating mind of man. Hence it is that we
see a citizen’s fate change several times in his passage
from one court to another; that we see the lives of
wretches at the mercy of the false reasonings or of
the temporary caprice of a judge, who takes as his
rightful canon of interpretation the vague result of all
that confused series of notions which affect his mind.
Hence it is that we see the same crimes punished
differently by the same court at different times,
owing to its having consulted, not the constant and
fixed voice of the laws, but their unstable and erring
interpretations.
No inconvenience that may arise from a strict
observance of the letter of penal laws is to be compared
with the inconveniences of subjecting them to
interpretation. The momentary inconvenience in the
former case involves, indeed, correcting the words of
the law which are the cause of the uncertainty, a task
both easy and necessary; but the fatal licence of arguing,
the source of so many arbitrary and venal disputes,
is thereby prevented. When a fixed code of
laws, which must be observed to the letter, leaves to
the judge no further trouble than to inquire into the
actions of citizens and to decide on their conformity
to the written law; when the standard of just and
unjust, which should equally direct the actions of the
ignorant citizen as of the philosophical one, is not a
matter of controversy but of fact; then are people no
longer subject to the petty tyrannies of many men,
which are all the more cruel by reason of the smaller
distance that separates the sufferer from the inflictor
of suffering, and which are more pernicious than the
tyrannies of a single man, inasmuch as the despotism
of many is only curable by that of one, and a despot’s
cruelty is proportioned, not to the power he possesses,
but to the obstacles he encounters. Under a fixed
code of laws citizens acquire that consciousness of personal
security, which is just, because it is the object
of social existence, and which is useful, because it enables
them to calculate exactly the evil consequences
of a misdeed. It is true they will also acquire a spirit
of independence, but not such a spirit as will seek to
shake the laws and prove rebellious against the chief
magistrates, except against such of them as have
dared to apply the sacred name of virtue to a spiritless
submission to their own self-interested and
capricious opinions. These principles will displease
those who have assumed the right to transfer to their
subordinates the strokes of tyranny they themselves
have suffered from their superiors. I personally
should have everything to fear, if the spirit of tyranny
and the spirit of reading ever went together.
If the interpretation of laws is an evil, it is clear that
their obscurity, which necessarily involves interpretation,
must be an evil also, and an evil which will
be at its worst where the laws are written in any
other than the vernacular language of a country.
For in that case the people, being unable to judge of
themselves how it may fare with their liberty or their
limbs, are made dependent on a small class of men;
and a book, which should be sacred and open to all,
becomes, by virtue of its language, a private and, so
to speak, a family manual.
The greater the number of those who understand
and have in their hands the sacred code of the laws,
the fewer will be the crimes committed; for it is beyond
all doubt that ignorance and uncertainty of
punishments lend assistance to the eloquence of the
passions. Yet what shall we think of mankind, when
we reflect, that such a condition of the laws is the
inveterate custom of a large part of cultivated and
enlightened Europe?
One consequence of these last reflections is, that
without writing no society will ever assume a fixed
form of government, wherein the power shall belong to
the social whole, and not to its parts, and wherein the
laws, only alterable by the general will, shall not suffer
corruption in their passage through the crowd of private
interests. Experience and reason have taught us,
that the probability and certainty of human traditions
diminish in proportion to their distance from their
source. So that if there be no standing memorial of
the social contract, how will laws ever resist the inevitable
force of time and passion?
From this we see how useful is the art of printing,
which makes the public, and not a few individuals,
the guardians of the sacred laws, and which has scattered
that dark spirit of cabal and intrigue, destined
to disappear before knowledge and the sciences, which,
however apparently despised, are in reality feared by
those that follow in their wake. This is the reason
that we see in Europe the diminution of those atrocious
crimes that afflicted our ancestors and rendered
them by turns tyrants or slaves. Whoever knows the
history of two or three centuries ago and of our own,
can see that from the lap of luxury and effeminacy
have sprung the most pleasing of all human virtues,
humanity, charity, and the toleration of human errors;
he will know what have been the results of that which
is so wrongly called ‘old-fashioned simplicity and
honesty.’ Humanity groaning under implacable superstition;
the avarice and ambition of a few dyeing
with human blood the golden chests and thrones of
kings; secret assassinations and public massacres;
every noble a tyrant to the people; the ministers of
the Gospel truth polluting with blood hands that
every day came in contact with the God of mercy—these
are not the works of this enlightened age, which
some, however, call corrupt.
An error, not less common than it is contrary to the
object of society—that is, to the consciousness of
personal security—is leaving a magistrate to be the
arbitrary executor of the laws, free at his pleasure to
imprison a citizen, to deprive a personal enemy of his
liberty on frivolous pretexts, or to leave a friend unpunished
in spite of the strongest proofs of his guilt.
Imprisonment is a punishment which, unlike every
other, must of necessity precede the declaration of
guilt; but this distinctive character does not deprive
it of the other essential of punishment, namely, that
the law alone shall determine the cases under which
it shall be merited. It is for the law, therefore, to
point out the amount of evidence of a crime which
shall justify the detention of the accused, and his subjection
to examination and punishment. For such
detention there may be sufficient proofs in common
report, in a man’s flight, in a non-judicial confession,
or in the confession of an accomplice; in a man’s
threats against or constant enmity with the person
injured; in all the facts of the crime, and similar indications.
But these proofs should be determined by the
laws, not by the judges, whose decisions, when they
are not particular applications of a general maxim
in a public code, are always adverse to political
liberty. The more that punishments are mitigated,
that misery and hunger are banished from prisons,
that pity and mercy are admitted within their iron
doors, and are set above the inexorable and hardened
ministers of justice, the slighter will be the
evidences of guilt requisite for the legal detention of
the suspected.
A man accused of a crime, imprisoned and acquitted,
ought to bear no mark of disgrace. How many
Romans, accused of the gravest crimes and then found
innocent, were reverenced by the people and honoured
with magisterial positions! For what reason, then, is
the lot of a man innocently accused so different in our
own times? Because, in the criminal system now in
vogue, the idea of force and might is stronger in men’s
minds than the idea of justice; because accused and
convicted are thrown in confusion into the same
dungeon; because imprisonment is rather a man’s
punishment than his mere custody; and because the
two forces which should be united are separated from
one another, namely, the internal force, which protects
the laws, and the external force, which defends the
throne and the nation. Were they united, the former,
through the common sanction of the laws, would possess
in addition a judicial capacity, although independent
of that possessed by the supreme judicial power;
and the glory that accompanies the pomp and ceremony
of a military body would remove the infamy, which,
like all popular sentiments, is more attached to the
manner than the thing, as is proved by the fact that
military prisons are not regarded in public estimation as
so disgraceful as civil ones. There still remain among
our people, in their customs and in their laws (always
a hundred years, in point of merit, in arrear of the
actual enlightenment of a nation), there still remain,
I say, the savage impressions and fierce ideas of our
ancestors of the North.
There is a general theorem which is most useful for
calculating the certainty of a fact, as, for instance, the
force of the proofs in the case of a given crime:—
1. When the proofs of a fact are dependent one on
another—that is to say, when each single proof rests on
the weight of some other—then the more numerous the
proofs are, the smaller is the probability of the fact in
question, because the chances of error in the preliminary
proofs would increase the probability of error in
the succeeding ones.
2. When the proofs of a fact all depend equally
on a single one, their number neither increases nor
diminishes the probability of the fact in question,
because their total value resolves itself into that of
the single one on which they depend.
3. When the proofs are independent of each other—that
is to say, when they do not derive their value one
from the other—then the more numerous the proofs
adduced, the greater is the probability of the fact in
question, because the falsity of one proof affects in no
way the force of another.
I speak of probability in connection with crimes,
which, to deserve punishment, ought to be proved. But
the paradox is only apparent, if one reflects that, strictly
speaking, moral certainty is only a probability, but a
probability which is called certainty, because every sensible
person necessarily assents to it, by a force of habit
which arises from the necessity of acting, and which is
prior to all speculation. The certainty requisite for certifying
that a man is a criminal is, therefore, the same
that determines everyone in the most important actions
of his life. The proofs of a crime may be divided into
‘perfect’ and ‘imperfect,’ the former being of such a
nature as exclude the possibility of a man’s innocence,
and the latter such as fall short of this certainty.
Of the first kind one proof alone is sufficient for condemnation;
of the second, or imperfect kind, as many
are necessary as suffice to make a single perfect proof;
that is to say, when, though each proof taken separately
does not exclude the possibility of innocence,
yet their convergence on the same point makes such
innocence impossible. But let it be noted that imperfect
proofs, from which an accused has it in his
power to justify himself and declines to do so, become
perfect. This moral certainty of proofs, however,
is easier to feel than to define with exactitude:
for which reason I think that the best law is one which
attaches to the chief judge assessors, taken by lot, not
by selection, there being in this case more safety in
the ignorance which judges by sentiment than in the
knowledge which judges by opinion. Where the laws
are clear and precise, the function of a judge consists
solely in the certification of fact. If for searching out
the proofs of a crime ability and cleverness are required,
and if in the presentation of the result clearness
and precision are essential, all that is required to
judge of the result is simple and common good sense,
a faculty which is less fallacious than the learning of
a judge, accustomed as he is to wish to find men guilty
and to reduce everything to an artificial system borrowed
from his studies. Happy the nation where the
laws are not a science! It is a most useful law that
everyone shall be judged by his equals, because where
a citizen’s liberty and fortune are at stake those sentiments
which inequality inspires should have no voice;
that feeling of superiority with which the prosperous
man regards the unfortunate one, and that feeling of
dislike with which an inferior regards his superior, have
no scope in a judgment by one’s equals. But when the
crime in question is an offence against a person of a
different rank from the accused, then one half of the
judges should be the equals of the accused, the other
half equals of the plaintiff, that so, every private interest
being balanced, by which the appearances of things
are involuntarily modified, only the voice of the laws
and of truth may be heard. It is also in accordance
with justice that an accused person should have
power up to a certain point of refusing judges whom
he may suspect; and if he is allowed the exercise of this
power for some time without opposition, he will seem
to condemn himself. Verdicts should be public, and
the proofs of guilt public, in order that opinion—which
is, perhaps, the only bond of society there is—may
place a check on outbursts of force and passion,
and that the people may say, ‘We are not slaves
without defence’: a feeling which both inspires them
with courage and is as good as a tribute to a sovereign
who understands his real interest. I refrain from
pointing out other details and precautions which
require similar regulations. I should have said nothing
at all, had it been necessary for me to say
everything.
It is a great point in every good system of laws to
determine exactly the credibility of witnesses and the
proofs of guilt Every reasonable man—that is, every
man with a certain connection between his ideas and
with feelings like those of other men—is capable of
bearing witness. The true measure of his credibility
is only the interest he has in speaking or in not
speaking the truth; so that nothing can be more
frivolous than to reject the evidence of women on the
pretext of their feebleness, nothing more childish
than to apply the results of real death to civil death
as regards the testimony of the condemned, nothing
more unmeaning than to insist on the mark of
infamy in the infamous when they have no interest
in lying.
Among other abuses of grammar, which have no
slight influence on human affairs, that one is notable
which makes the evidence of a condemned criminal
null and void. ‘He is dead civilly’ say gravely the
peripatetic lawyers, ‘and a dead man is incapable of
any action.’ In support of this silly metaphor many
victims have been sacrificed, and it has very often
been disputed with all seriousness whether the truth
should not yield to judicial formulas. Provided that
the testimony of a condemned criminal does not go
to the extent of stopping the course of justice, why
should not a fitting period be allowed, even after
condemnation, both to the extreme wretchedness of
the criminal and to the interests of truth, so that, by
his adducing fresh matter to alter the complexion of
the fact, he may justify himself or others in a new
trial? Forms and ceremonies are necessary in the
administration of justice, because they leave nothing
to the free will of the administrator; because they
give the people an idea of a justice which is not
tumultuary and self-interested, but steadfast and
regular; and because men, the slaves of habit and
imitation, are more influenced by their feelings than
by arguments. But such forms can never without
fatal danger be so firmly fixed by the laws as to be
injurious to truth, which from being either too simple
or two complex needs some external pomp to conciliate
the ignorant populace.
The credibility, therefore, of a witness must diminish
in proportion to the hatred, friendship, or close
connection between himself and the accused. More
than one witness is necessary, because, so long as one
affirms and another denies, nothing is proved, and the
right which everyone has of being held innocent prevails.
The credibility of a witness becomes appreciably
less, the greater the atrocity of the crime imputed,[66]
or the improbability of the circumstances, as
in charges of magic and gratuitously cruel actions.
It is more likely, as regards the former accusation, that
many men should lie than that such an accusation
should be true, because it is easier for many men to
be united in an ignorant mistake or in persecuting
hatred than for one man to exercise a power which
God either has not conferred or has taken away from
every created being. The same reasoning holds good
also of the second accusation, for man is only cruel
in proportion to his interest to be so, to his hatred or
to his fear. Properly speaking, there is no superfluous
feeling in human nature, every feeling being always in
strict accordance with the impressions made upon the
senses. In the same way the credibility of a witness
may sometimes be lessened by the fact of his being a
member of some secret society, whose purposes and
principles are either not well understood or differ
from those of general acceptance; for such a man
has not only his own passions but those of others
besides.
Lastly, a witness’s evidence is almost null when
spoken words are construed into a crime. For the
tone, the gesture, all that precedes or follows the
different ideas attached by men to the same words,
so alter and modify a man’s utterances, that it is
almost impossible to repeat them exactly as they
were spoken. Moreover, actions of a violent and unusual
character, such as real crimes are, leave their
traces in the numberless circumstances and effects
that flow from them; and of such actions the greater
the number of the circumstances adduced in proof,
the more numerous are the chances for the accused
to clear himself. But words only remain in the
memory of their hearers, and memory is for the most
part unfaithful and often deceitful. It is on that
account ever so much more easy to fix a calumny
upon a man’s words than upon his actions.
Palpable but consecrated abuses, which in many
nations are the necessary results of a weak political
constitution, are Secret Accusations. For they render
men false and reserved, and whoever may suspect
that he sees in his neighbour an informer will see in
him an enemy. Men then come to mask their real
feelings, and by the habit of hiding them from others
they at last get to hide them from themselves. Unhappy
they who have come to that; who, without clear
and fixed principles to guide them, wander lost and
confused in the vast sea of opinions, ever busied in
saving themselves from the horrors that oppress them,
with the present moment ever embittered by the uncertainty
of the future, and without the lasting pleasures
of quiet and security, devouring in unseemly
haste those few pleasures, which occur at rare intervals
in their melancholy lives and scarcely console them for
the fact of having lived! Is it of such men we can hope
to make intrepid soldiers, defenders of their country
and crown? Is it among such men we shall find incorrupt
magistrates, able with their free and patriotic
eloquence to sustain and develop the true interests of
their sovereign, ready, with the tribute they bear, to
carry to the throne the love and blessings of all classes
of men, and thence to bring back to palaces and cottages
alike peace and security, and that active hope
of ameliorating their lot which is so useful a leaven,
nay, which is the life of States?
Who can protect himself from calumny, when it is
armed by the strongest shield of tyranny, secrecy?
What sort of government can that ever be where in
every subject a ruler suspects an enemy, and is obliged
for the sake of the general tranquillity to rob each
individual of its possession?
What are the pretexts by which secret accusations
and punishments are justified? Are they the public
welfare, the security and maintenance of the form of
government? But how strange a constitution is that,
where he who has force on his side, and opinion, which
is even stronger than force, is afraid of every citizen!
Is then the indemnity of the accuser the excuse? In
that case the laws do not sufficiently defend him; and
shall there be subjects stronger than their sovereign?
Or is it to save the informer from infamy? What!
secret calumny be fair and lawful, and an open one
deserving of punishment! Is it, then, the nature of
the crime? If indifferent actions, or even useful actions,
are called crimes, then of course accusations and
trials can never be secret enough. But how can there
be crimes, that is, public injuries, unless the publicity
of this example, by a public trial, be at the same time
the interest of all men? I respect every government,
and speak of none in particular. Circumstances
are sometimes such that to remove an evil may seem
utter ruin when it is inherent in a national system.
But had I to dictate new laws in any forgotten corner
of the universe, my hand would tremble and all posterity
would rise before my eyes before I would authorise
such a custom as that of secret accusations.
It has already been remarked by Montesquieu that
public accusations are more suited to republics, where
the public good ought to be the citizens’ first passion,
than to monarchies, where such a sentiment is very
feeble, owing to the nature of the government itself,
and where the appointment of officers to accuse transgressors
of the law in the name of the public is a most
excellent institution. But every government, be it
republican or monarchical, ought to inflict upon a
false accuser the same punishment which, had the
accusation been true, would have fallen upon the
accused.
Our laws prohibit suggestive (leading) questions in a
lawsuit: those, that is (according to the doctors of
law), which, instead of applying, as they should do,
to the genus in the circumstances of a crime, refer to
the species; those, in other words, which from their
immediate connection with a crime suggest to the
accused a direct answer. Questions, according to the
criminal lawyers, ought, so to speak, ‘to envelop the
main fact spirally and never to attack it in a direct
line.’ The reasons for this method are, either that an
answer may not be suggested to the accused which
may place him face to face with the charge against
him, or perhaps because it seems unnatural for him
directly to criminate himself. But, whichever of these
reasons it may be, the contradiction is remarkable
between the existence of such a custom and the legal
authorisation of torture; for what interrogatory can
be more suggestive than pain? The former reason
applies to the question of torture, because pain will
suggest to a strong man obstinate silence, in order
that he may exchange the greater penalty for the
lesser, whilst it will suggest to a weak man confession,
in order that he may escape from present torment,
which has more influence over him than pain which
is to come. The other reason evidently applies too,
for if a special question leads a man to confess against
natural right, the agonies of torture will more easily
do the same. But men are more governed by the
difference of names than by that of things.
Finally, a man who, when examined, persists in an
obstinate refusal to answer, deserves a punishment
fixed by the laws, and one of the heaviest they can
inflict, that men may not in this way escape the
necessary example they owe to the public. But this
punishment is not necessary when it is beyond all
doubt that such a person has committed such a crime,
questions being useless, in the same way that confession
is, when other proofs sufficiently demonstrate
guilt And this last case is the most usual, for experience
proves that in the majority of trials the
accused are wont to plead ‘Not guilty.’
A contradiction between the laws and the natural
feelings of mankind arises from the oaths which are
required of an accused, to the effect that he will be
a truthful man when it is his greatest interest to be
false; as if a man could really swear to contribute to
his own destruction, or as if religion would not be
silent with most men when their interest spoke on
the other side. The experience of all ages has
shown that men have abused religion more than any
other of the precious gifts of heaven; and for what
reason should criminals respect it, when men esteemed
as the wisest have often violated it? Too
weak, because too far removed from the senses, are
for the mass of people the motives which religion
opposes to the tumult of fear and the love of life.
The affairs of heaven are conducted by laws absolutely
different from those which govern human
affairs; so why compromise those by these? Why
place men in the terrible dilemma of either sinning
against God or concurring in their own ruin? The
law, in fact, which enforces such an oath commands a
man either to be a bad Christian or to be a martyr.
The oath becomes gradually a mere formality, thus
destroying the force of religious feelings, which for
the majority of men are the only pledge of their
honesty. How useless oaths are has been shown by
experience, for every judge will bear me out when I
say that no oath has ever yet made any criminal
speak the truth; and the same thing is shown by
reason, which declares all laws to be useless, and consequently
injurious, which are opposed to the natural
sentiments of man. Such laws incur the same fate
as dams placed directly in the main stream of a river:
either they are immediately thrown down and overwhelmed,
or a whirlpool formed by themselves corrodes
and undermines them imperceptibly.
A cruelty consecrated among most nations by
custom is the torture of the accused during his trial,
on the pretext of compelling him to confess his
crime, of clearing up contradictions in his statements,
of discovering his accomplices, of purging him in
some metaphysical and incomprehensible way from
infamy, or finally of finding out other crimes of which
he may possibly be guilty, but of which he is not
accused.
A man cannot be called guilty before sentence
has been passed on him by a judge, nor can society
deprive him of its protection till it has been decided
that he has broken the condition on which it was
granted. What, then, is that right but one of mere
might by which a judge is empowered to inflict a
punishment on a citizen whilst his guilt or innocence
are still undetermined? The following dilemma is
no new one: either the crime is certain or uncertain;
if certain, no other punishment is suitable for it than
that affixed to it by law; and torture is useless, for
the same reason that the criminal’s confession is
useless. If it is uncertain, it is wrong to torture an
innocent person, such as the law adjudges him to be,
whose crimes are not yet proved.
What is the political object of punishments?
The intimidation of other men. But what shall we
say of the secret and private tortures which the
tyranny of custom exercises alike upon the guilty
and the innocent? It is important, indeed, that no
open crime shall pass unpunished; but the public
exposure of a criminal whose crime was hidden in
darkness is utterly useless. An evil that has been
done and cannot be undone can only be punished by
civil society in so far as it may affect others with the
hope of impunity. If it be true that there are a
greater number of men who either from fear or
virtue respect the laws than of those who transgress
them, the risk of torturing an innocent man should be
estimated according to the probability that any man
will have been more likely, other things being equal,
to have respected than to have despised the laws.
But I say in addition: it is to seek to confound all
the relations of things to require a man to be at the
same time accuser and accused, to make pain the
crucible of truth, as if the test of it lay in the muscles
and sinews of an unfortunate wretch. The law which
ordains the use of torture is a law which says to men:
‘Resist pain; and if Nature has created in you an inextinguishable
self-love, if she has given you an inalienable
right of self-defence, I create in you a totally
contrary affection, namely, an heroic self-hatred, and
I command you to accuse yourselves, and to speak
the truth between the laceration of your muscles and
the dislocation of your bones.’
This infamous crucible of truth is a still-existing
monument of that primitive and savage legal system,
which called trials by fire and boiling water, or the
accidental decisions of combat, judgments of God, as
if the rings of the eternal chain in the control of the
First Cause must at every moment be disarranged
and put out for the petty institutions of mankind.
The only difference between torture and the trial by
fire and water is, that the result of the former seems
to depend on the will of the accused, and that of the
other two on a fact which is purely physical and
extrinsic to the sufferer; but the difference is only
apparent, not real. The avowal of truth under
tortures and agonies is as little free as was in those
times the prevention without fraud of the usual
effects of fire and boiling water. Every act of our
will is ever proportioned to the force of the sensible
impression which causes it, and the sensibility of
every man is limited. Hence the impression produced
by pain may be so intense as to occupy a
man’s entire sensibility and leave him no other
liberty than the choice of the shortest way of escape,
for the present moment, from his penalty. Under
such circumstances the answer of the accused is as
inevitable as the impressions produced by fire and
water; and the innocent man who is sensitive will
declare himself guilty, when by so doing he hopes
to bring his agonies to an end. All the difference
between guilt and innocence is lost by virtue of the
very means which they profess to employ for its
discovery.
Torture is a certain method for the acquittal of
robust villains and for the condemnation of innocent
but feeble men. See the fatal drawbacks of
this pretended test of truth—a test, indeed, that is
worthy of cannibals; a test which the Romans, barbarous
as they too were in many respects, reserved
for slaves alone, the victims of their fierce and too
highly lauded virtue. Of two men, equally innocent
or equally guilty, the robust and courageous will be
acquitted, the weak and the timid will be condemned,
by virtue of the following exact train of reasoning on
the part of the judge: ‘I as judge had to find you
guilty of such and such a crime; you, A B, have by
your physical strength been able to resist pain, and
therefore I acquit you; you, C D, in your weakness
have yielded to it; therefore I condemn you. I feel
that a confession extorted amid torments can have no
force, but I will torture you afresh unless you corroborate
what you have now confessed.’
The result, then, of torture is a matter of temperament,
of calculation, which varies with each man according
to his strength and sensibility; so that by this
method a mathematician might solve better than a
judge this problem: ‘Given the muscular force and
the nervous sensibility of an innocent man, to find the
degree of pain which will cause him to plead guilty
to a given crime.’
The object of examining an accused man is the
ascertainment of truth. But if this truth is difficult to
discover from a man’s air, demeanour, or countenance,
even when he is quiet, much more difficult will it be
to discover from a man upon whose face all the signs,
whereby most men, sometimes in spite of themselves,
express the truth, are distorted by pain. Every violent
action confuses and causes to disappear those
trifling differences between objects, by which one may
sometimes distinguish the true from the false.
A strange consequence that flows naturally from
the use of torture is, that an innocent man is thereby
placed in a worse condition than a guilty one, because
if both are tortured the former has every alternative
against him. For either he confesses the crime and
is condemned, or he is declared innocent, having suffered
an undeserved punishment. But the guilty
man has one chance in his favour, since, if he resist
the torture firmly, and is acquitted in consequence,
he has exchanged a greater penalty for a smaller one.
Therefore the innocent man can only lose, the guilty
may gain, by torture.
This truth is, in fact, felt, though in a confused
way, by the very persons who place themselves farthest
from it. For a confession made under torture
is of no avail unless it be confirmed by an oath made
after it; and yet, should the criminal not confirm
his confession, he is tortured afresh. Some doctors
of law and some nations only allow this infamous
begging of the question to be employed three times;
whilst other nations and other doctors leave it to the
discretion of the judge.
It were superfluous to enlighten the matter more
thoroughly by mentioning the numberless instances of
innocent persons who have confessed themselves guilty
from the agonies of torture; no nation, no age, but can
mention its own; but men neither change their natures
nor draw conclusions. There is no man who has ever
raised his ideas beyond the common needs of life but
runs occasionally towards Nature, who with secret
and confused voice calls him to herself; but custom,
that tyrant of human minds, draws him back and
frightens him.
The second pretext for torture is its application
to supposed criminals who contradict themselves
under examination, as if the fear of the punishment,
the uncertainty of the sentence, the legal pageantry,
the majesty of the judge, the state of ignorance that is
common alike to innocent and guilty, were not enough
to plunge into self-contradiction both the innocent man
who is afraid, and the guilty man who seeks to shield
himself; as if contradictions, common enough when
men are at their ease, were not likely to be multiplied,
when the mind is perturbed and wholly absorbed in
the thought of seeking safety from imminent peril.
Torture, again, is employed to discover if a criminal
is guilty of other crimes besides those with which he
is charged. It is as if this argument were employed:
‘Because you are guilty of one crime you may be
guilty of a hundred others. This doubt weighs upon
me: I wish to ascertain about it by my test of truth:
the laws torture you because you are guilty, because
you may be guilty, because I mean you to be
guilty.’
Torture, again, is inflicted upon an accused man in
order to discover his accomplices in crime. But if it
is proved that it is not a fitting method for the discovery
of truth, how will it serve to disclose accomplices,
which is part of the truth to be discovered?
As if a man who accuses himself would not more
readily accuse others. And is it just to torment men
for the crimes of others? Will not the accomplices
be disclosed from the examination of the witnesses
and of the accused, from the proofs and whole circumstances
of the crime; in sum, from all those very
means which should serve to convict the accused
himself of guilt? Accomplices generally fly immediately
after the capture of a companion; the uncertainty
of their lot of itself condemns them to
exile, and frees the country from the danger of fresh
offences from them; whilst the punishment of the
criminal who is caught attains its precise object,
namely, the averting of other men by terror from a
similar crime.
Another ridiculous reason for torture is the purgation
from infamy; that is to say, a man judged infamous
by the laws must confirm his testimony by
the dislocation of his bones. This abuse ought not to
be tolerated in the eighteenth century. It is believed
that pain, which is a physical sensation, purges from
infamy, which is merely a moral condition. Is pain,
then, a crucible, and infamy a mixed impure substance?
But infamy is a sentiment, subject neither
to laws nor to reason, but to common opinion. Torture
itself causes real infamy to the victim of it. So
the result is, that by this method infamy will be taken
away by the very fact of its infliction!
It is not difficult to go back to the origin of this
ridiculous law, because the absurdities themselves
that a whole nation adopts have always some connection
with other common ideas which the same
nation respects. The custom seems to have been
derived from religious and spiritual ideas, which have
so great an influence on the thoughts of men, on
nations, and on generations. An infallible dogma
assures us, that the stains contracted by human weakness
and undeserving of the eternal anger of the
Supreme Being must be purged by an incomprehensible
fire. Now, infamy is a civil stain; and as pain
and fire take away spiritual and incorporeal stains,
why should not the agonies of torture take away the
civil stain of infamy? I believe that the confession
of a criminal, which some courts insist on as an essential
requisite for condemnation, has a similar origin;—because
in the mysterious tribunal of repentance the
confession of sins is an essential part of the sacrament.
This is the way men abuse the surest lights of revelation;
and as these are the only ones which exist in
times of ignorance, it is to them on all occasions that
docile humanity turns, making of them the most absurd
and far-fetched applications.
These truths were recognised by the Roman legislators,
for they inflicted torture only upon slaves, who
in law had no personality. They have been adopted
by England, a nation, the glory of whose literature,
the superiority of whose commerce and wealth, and
consequently of whose power, and the examples of
whose virtue and courage leave us no doubt as to the
goodness of her laws. Torture has also been abolished
in Sweden; it has been abolished by one of the wisest
monarchs of Europe, who, taking philosophy with him
to the throne, has made himself the friend and legislator
of his subjects, rendering them equal and free in
their dependence on the laws, the sole kind of equality
and liberty that reasonable men can ask for in the
present condition of things. Nor has torture been
deemed necessary in the laws which regulate armies,
composed though they are for the most part of the
dregs of different countries, and for that reason more
than any other class of men the more likely to require
it. A strange thing, for whoever forgets the power
of the tyranny exercised by custom, that pacific laws
should be obliged to learn from minds hardened to
massacre and bloodshed the most humane method of
conducting trials.
As soon as the proofs of a crime and its reality
are fully certified, the criminal must be allowed time
and opportunity for his defence; but the time allowed
must be so short as not to interfere with the
speediness of his punishment, which, as we have seen,
is one of the principal restraints from crime. A false
philanthropy seems opposed to this shortness of time;
but all doubt will vanish, on reflection that the more
defective any system of law is, the greater are the
dangers to which innocence is exposed.
But the laws should fix a certain space of time
both for the defence of the accused and for the discovery
of proofs against him. It would place the
judge in the position of a legislator were it his duty
to fix the time necessary for the latter. In the same
way those atrocious crimes, whose memory tarries
long in men’s minds, deserve, when once proved, no
prescription in favour of a criminal who has fled
from his country; but lesser and obscure crimes
should be allowed a certain prescription, which may remove
a man’s uncertainty concerning his fate, because
the obscurity in which for a long time his crimes have
been involved deducts from the bad example of his
impunity, and the possibility of reform meantime
remains to him. It is enough to indicate these principles,
because I cannot fix a precise limit of time,
except for a given system of laws and in given social
circumstances. I will only add that, the advantage
of moderate penalties in a nation being proved, the
laws which shorten or lengthen, according to the gravity
of crimes, the term of prescription or of proofs, thus
making of prison itself or of voluntary exile a part
of the punishment, will supply an easy classification
of a few mild punishments for a very large number of
crimes.
But these periods of time will not be lengthened
in exact proportion to the atrocity of crimes, since the
probability of a crime is in inverse ratio to its atrocity.
It will, then, be necessary to shorten the period for
inquiry and to increase that of prescription; which
may appear to contradict what I said before, namely,
that it is possible to inflict equal penalties on unequal
crimes, by counting as a penalty that period of imprisonment
or of prescription which precedes the verdict.
To explain to the reader my idea: I distinguish
two kinds of crimes—the first, atrocious crimes, beginning
with homicide and including all the excessive
forms of wickedness; the second comprising less
considerable crimes. This distinction is founded in
human nature. Personal security is a natural right, the
security of property a social one. The number of motives
which impel men to violate their natural affections
is far smaller than those which impel them, by their
natural longing for happiness, to violate a right which
they do not find written in their hearts but only in
the conventions of society. The very great difference
between the probability of these two kinds of crime
respectively makes it necessary that they should be
ruled by different principles. In cases of the more
atrocious crimes, because they are more uncommon,
the time for inquiry ought to be so much the less as
the probability of the innocence of the accused is
greater; and the time of prescription ought to be
longer, as on an ultimate definite sentence of guilt or
innocence depends the destruction of the hope of
impunity, the harm of which is proportioned to the
atrocity of the crime. But in cases of lesser criminality,
where the presumption in favour of a man’s
innocence is less, the time for inquiry should be
longer; and as the harm of impunity is less, the time
of prescription should be shorter. But such a division
of crimes ought, indeed, not to be admitted, if the
danger of impunity decreased exactly in proportion
to the greater probability of the crime. One should
remember that an accused man, whose guilt or innocence
is uncertain, may, though acquitted for lack of
proofs, be subjected for the same crime to a fresh imprisonment
and inquiry, in the event of fresh legal
proofs rising up against him, so long as the time of
prescription accorded by the laws has not been past.
Such at least is the compromise that I think best fitted
to preserve both the liberty and the security of the
subject, it being only too easy so to favour the one at
the expense of the other, that these two blessings, the
inalienable and equal patrimony of every citizen, are
left unprotected and undefended, the one from declared
or veiled despotism, the other from the turbulence of
civil anarchy.
There are some crimes which are at the same time
of common occurrence and of difficult proof. In them
the difficulty of proof is equivalent to a probability
of innocence; and the harm of their impunity being
so much the less to be considered as their frequency
depends on principles other than the risk of punishment,
the time for inquiry and the period of prescription
ought both to be proportionately less. Yet
cases of adultery and pederasty, both of difficult
proof, are precisely those in which, according to received
principles, tyrannical presumptions of quasi-proofs
and half-proofs are allowed to prevail (as if
a man could be half-innocent or half-guilty, in other
words, half-punishable or half-acquittable); in which
torture exercises its cruel sway over the person of
the accused, over the witnesses, and even over the
whole family of an unfortunate wretch, according to
the coldly wicked teaching of some doctors of law,
who set themselves up as the rule and standard for
judges to follow.
In view of these principles it will appear strange
(to anyone who does not reflect, that reason has, so to
speak, never yet legislated for a nation), that it is just
the most atrocious crimes or the most secret and chimerical
ones—that is, those of the least probability—which
are proved by conjectures or by the weakest
and most equivocal proofs: as if it were the interest
of the laws and of the judge, not to search for the
truth, but to find out the crime; as if the danger of
condemning an innocent man were not so much the
greater, the greater the probability of his innocence
over that of his guilt.
The majority of mankind lack that vigour which
is equally necessary for the greatest crimes as for the
greatest virtues; whence it would appear, that both
extremes are contemporaneous phenomena in nations
which depend rather on the energy of their government
and of the passions that tend to the public
good, than on their size and the constant goodness
of their laws. In the latter the weakened passions
seem more adapted to maintain than to improve the
form of government. From which flows an important
consequence, namely, that great crimes in a nation do
not always prove its decline.
It does not follow, because the laws do not punish intentions,
that therefore a crime begun by some action,
significative of the will to complete it, is undeserving
of punishment, although it deserves less than a crime
actually committed. The importance of preventing
an attempt at a crime justifies a punishment; but, as
there may be an interval between the attempt and the
execution, the reservation of a greater punishment
for a consummated crime may present a motive for
its non-completion.
The same may be said, though for a different reason,
where there are several accomplices of a crime, not
all of them its immediate perpetrators. When several
men join together in an undertaking, the greater its
risk is, the more will they seek to make it equal for
all of them; the more difficult it will be, therefore, to
find one of them who will be willing to put the deed
into execution, if he thereby incurs a greater risk than
that incurred by his accomplices. The only exception
would be where the perpetrator received a fixed reward,
for then, the perpetrator having a compensation
for his greater risk, the punishment should be equalised
between him and his accomplices. Such reflections
may appear too metaphysical to whosoever does not
consider that it is of the utmost advantage for the
laws to afford as few grounds of agreement as possible
between companions in crime.
Some courts promise impunity to an accomplice
in a serious crime who will expose his companions,
an expedient that has its drawbacks as well as its
advantages. Among the former must be counted the
national authorisation of treachery, a practice which
even criminals detest; for crimes of courage are less
pernicious to a people than crimes of cowardice, courage
being no ordinary quality, and needing only a
beneficent directing force to make it conduce to the
public welfare, whilst cowardice is more common and
contagious, and always more self-concentrated than
the other. Besides, a tribunal which calls for the aid
of the law-breaker proclaims its own uncertainty and
the weakness of the laws themselves. On the other
hand, the advantages of the practice are, the prevention
of crimes and the intimidation of the people, owing to
the fact that the results are visible whilst the authors
remain hidden; moreover, it helps to show that a man
who breaks his faith to the laws, that is, to the public,
is likely also to break it in private life. I think that
a general law promising impunity to an accomplice
who exposes a crime would be preferable to a special
declaration in a particular case, because in this way the
mutual fear which each accomplice would have of his
own risk would tend to prevent their association; the
tribunal would not make criminals audacious by showing
that their aid was called for in a particular case.
Such a law, however, should accompany impunity with
the banishment of the informer.… But to no purpose
do I torment myself to dissipate the remorse I
feel in authorising the inviolable laws, the monument
of public confidence, the basis of human morality,
to resort to treachery and dissimulation. What an
example to the nation it would be, were the promised
impunity not observed, and were the man who had
responded to the invitation of the laws dragged by
learned quibbles to punishment, in spite of the public
troth pledged to him! Such examples are not rare
in different countries; neither, therefore, is the number
small, of those who consider a nation in no other light
than in that of a complicated machine, whose springs
the cleverest and the strongest move at their will.
Cold and insensible to all that forms the delight of
tender and sensitive minds, they arouse, with imperturbable
sagacity, either the softest feelings or the
strongest passions, as soon as they see them of service
to the object they have in view, handling men’s minds
just as musicians do their instruments.
From the simple consideration of the truths hitherto
demonstrated it is evident that the object of punishment
is neither to torment and inflict a sensitive
creature nor to undo a crime already committed.
Can he, whose function it is, so far from acting from
passion, to tranquillise the private passions of his fellows,
harbour in the body politic such useless cruelty,
the instrument either of furious fanatics or of weak
tyrants? Shall perchance the shrieks of an unhappy
wretch call back from never-receding time actions
already executed? The object, therefore, of punishment
is simply to prevent the criminal from injuring
anew his fellow-citizens, and to deter others from
committing similar injuries; and those punishments
and that method of inflicting them should be preferred
which, duly proportioned to the offence, will produce
a more efficacious and lasting impression on the
minds of men and inflict the least torture on the
body of a criminal.
Who can read history without being horror-struck
at the barbarous and useless torments which men,
who were called wise, in cold blood devised and
executed? Who is there but must feel his blood
boil, when he regards the thousands of wretches
whom misery, either intended or tolerated by the laws
(which have always favoured the few and outraged
the many), has driven to a desperate return to the
original state of nature; when he sees them either
accused by men endowed with the same senses, and
consequently with the same passions as themselves,
of impossible crimes, the fiction of timid ignorance,
or guilty of nothing but fidelity to their own principles;
and when he sees them lacerated by slow
tortures, subject to well-contrived formalities, an
agreeable sight for a fanatical multitude?
In order that a punishment may attain its object,
it is enough if the evil of the punishment exceeds
the advantage of the crime, and in this excess of evil
the certainty of punishment and the loss of the possible
advantage from the crime ought to be considered
as part; all beyond this is superfluous and consequently
tyrannical. Men regulate their conduct by
the reiterated impression of evils they know, not by
reason of evils they ignore. Given two nations, in
one of which, in the scale of punishments proportioned
to the scale of crimes, the severest penalty is perpetual
servitude, and in the other the wheel; I say that the
former will have as great a dread of its severest punishment
as the latter will have; and if there be any
reason for transporting to the former country the
greater penalties of the other, the same reasoning will
serve for increasing still more the penalties of this
latter country, passing imperceptibly from the wheel
to the slowest and most elaborate tortures, nay, even
to the last refinements of that science which tyrants
understand only too well.
The more cruel punishments become, the more human
minds harden, adjusting themselves, like fluids,
to the level of objects around them; and the ever
living force of the passions brings it about, that after
a hundred years of cruel punishments, the wheel
frightens men only just as much as at first did the
punishment of prison.
The very severity of a punishment leads men to
dare so much the more to escape it, according to the
greatness of the evil in prospect; and many crimes
are thus committed to avoid the penalty of a single
one. Countries and times where punishments have
been most severe have ever been those where the
bloodiest and most inhuman deeds have been committed,
the same spirit of ferocity that guided the
hand of the legislator having guided also that of the
parricide and assassin; on the throne dictating iron
laws for the villanous souls of slaves to obey, and
in the obscurity of private life urging to the slaughter
of tyrants, only to create fresh ones in their stead.
Two other fatal consequences flow from the cruelty
of punishments, and are contrary to their very purpose,
the prevention of crimes. The first is, that it is
not so easy to preserve the essential proportion between
crime and punishment, because, however much
a studied cruelty may diversify its forms, none of them
can go beyond the extreme limit of endurance which
is a condition of the human organisation and sensibility.
When once this extreme limit is attained, it
would be impossible to invent such a corresponding
increase of punishment for still more injurious and
atrocious crimes as would be necessary to prevent
them. The other consequence is, that impunity itself
arises from the severity of punishments. Men are
restrained within limits both in good and evil; and a
sight too atrocious for humanity can only be a
passing rage, not a constant system, such as the laws
ought to be; if the latter are really cruel, either
they are changed, or themselves give rise to a fatal
impunity.
I conclude with this reflection, that the scale of
punishments should be relative to the condition of a
nation. On the hardened minds of a people scarcely
emerged from the savage state the impressions made
should be stronger and more sensible. One needs a
thunderbolt for the destruction of a fierce lion that
faces round at the shot of a gun. But in proportion
as men’s minds become softened in the social state,
their sensibility increases, and commensurate with that
increase should be the diminution of the force of punishment,
if it be desired to maintain any proportion
between the object and the sensation that attends it.
This useless prodigality of punishments, by which
men have never been made any better, has driven me
to examine whether the punishment of death be really
useful and just in a well organised government.
What kind of right can that be which men claim for
the slaughter of their fellow-beings? Certainly not
that right which is the source of sovereignty and of
laws. For these are nothing but the sum-total of the
smallest portions of individual liberty, and represent
the general will, that is, the aggregate of individual
wills. But who ever wished to leave to other men
the option of killing him? How in the least possible
sacrifice of each man’s liberty can there be a sacrifice
of the greatest of all goods, namely, of life? And
if there could be that sacrifice, how would such a
principle accord with the other, that a man is not the
master of his own life? Yet he must have been so,
could he have given to himself or to society as a body
this right of killing him.
The death penalty therefore is not a right; I
have proved that it cannot be so; but it is a war of a
nation against one of its members, because his annihilation
is deemed necessary and expedient. But if
I can show that his death is neither necessary nor
expedient, I shall have won the cause of humanity.
The death of a citizen can only be deemed necessary
for two reasons. The first is when, though deprived
of his personal freedom, he has still such connections
and power as threaten the national security;
when his existence is capable of producing a dangerous
revolution in the established form of government.
The death of a citizen becomes then necessary
when the nation is recovering or losing its liberty, or
in a time of anarchy, when confusion takes the place
of laws; but in times when the laws hold undisturbed
sway, when the form of government corresponds with
the wishes of a united nation, and is defended internally
and externally by force, and by opinion which
is perhaps even stronger than force, where the supreme
power rests only with the real sovereign, and riches
serve to purchase pleasures but not places, I see
no necessity for destroying a citizen, except when his
death might be the real and only restraint for
diverting others from committing crimes; this latter
case constituting the second reason for which one
may believe capital punishment to be both just and
necessary.
Since mankind generally, suspicious always of
the language of reason, but ready to bow to that of
authority, remain unpersuaded by the experience of
all ages, in which the supreme punishment has never
diverted resolute men from committing offences
against society; since also they are equally unmoved
by the example of the Romans and by twenty years
of the reign of the Empress Elizabeth of Russia,
during which she presented this illustrious example
to the fathers of their people, an example which is
at least equivalent to many conquests bought by the
blood of her country’s sons, it is sufficient merely to
consult human nature itself, to perceive the truth of
the assertion I have made.
The greatest effect that any punishment has upon
the human mind is not to be measured by its intensity
but by its duration, for our sensibility is more easily
and permanently affected by very slight but repeated
impressions than by a strong but brief shock.
Habit holds universal sway over every sentient being,
and as we speak and walk and satisfy our needs by
its aid, so moral ideas only stamp themselves on our
mind by long and repeated impressions. It is not
the terrible yet brief sight of a criminal’s death, but
the long and painful example of a man deprived of
his liberty, who, having become as it were a beast of
burthen, repays with his toil the society he has offended,
which is the strongest restraint from crimes. Far
more potent than the fear of death, which men ever
have before their eyes in the remote distance, is the
thought, so efficacious from its constant recurrence:
‘I myself shall be reduced to as long and miserable a
condition if I commit similar misdeeds.’
Capital punishment makes an impression in prospect
which, with all its force, does not fully meet that
ready spirit of forgetfulness, so natural to man even
in his most important concerns, and so liable to be
accelerated by his passions. As a general rule, men
are startled by the sight of violent sufferings, but not
for long, and therefore such impressions are wont so
to transform them as to make of ordinary men either
Persians or Spartans; but in a free and settled government
impressions should rather be frequent than
strong.
Capital punishment becomes a spectacle for the
majority of mankind, and a subject for compassion and
abhorrence for others; the minds of the spectators
are more filled with these feelings than with the
wholesome terror the law pretends to inspire. But in
moderate and continuing penalties the latter is the
predominant feeling, because it is the only one. The
limit, which the legislator should affix to the severity
of penalties, appears to lie in the first signs of a feeling
of compassion becoming uppermost in the minds of
the spectators, when they look upon the punishment
rather as their own than as that of the criminal.
In order that a punishment may be just, it must
contain only such degrees of intensity as suffice to
deter men from crimes. But as there is no one who
on reflection would choose the total and perpetual
loss of his liberty, however great the advantages
offered him by a crime, the intensity of the punishment
of servitude for life, substituted for capital punishment,
has that in it which is sufficient to daunt the
most determined courage. I will add that it is even
more deterrent than death. Very many men face
death calmly and firmly, some from fanaticism, some
from vanity, which almost always attends a man to
the tomb; others from a last desperate attempt either
no longer to live or to escape from their misery; but
neither fanaticism nor vanity have any place among
fetters and chains, under the stick, under the yoke, in
a cage of iron; the wretch thus punished is so far
from terminating his miseries that with his punishment
he only begins them.
The mind of man offers more resistance to violence
and to extreme but brief pains than it does to time
and to incessant weariness; for whilst it can, so to
speak, gather itself together for a moment to repel the
former, its vigorous elasticity is insufficient to resist
the long and repeated action of the latter. In the
case of capital punishment, each example presented
of it is all that a single crime affords; in penal servitude
for life, a single crime serves to present numerous
and lasting warnings. And if it be important that the
power of the laws should often be witnessed, there
ought to be no long intervals between the examples
of the death penalty; but this would presuppose the
frequency of crimes, so that, to render the punishment
effective, it must not make on men all the impression
that it ought to make, in other words, it must be useful
and not useful at the same time. And should it be
objected that perpetual servitude is as painful as
death, and therefore equally cruel, I will reply, that,
taking into consideration all the unhappy moments of
servitude, it will perhaps be even more painful than
death; but whilst these moments are spread over the
whole of a lifetime, death exercises all its force in a
single moment. There is also this advantage in penal
servitude, that it has more terrors for him who sees it
than for him who suffers it, for the former thinks of
the whole sum-total of unhappy moments, whilst the
latter, by the unhappiness of the present moment,
has his thoughts diverted from that which is to come.
All evils are magnified in imagination, and every sufferer
finds resources and consolations unknown to
and unbelieved in by spectators, who substitute their
own sensibility for the hardened soul of a criminal.
The following is the kind of reasoning adopted
by the thief or the assassin, whose only motives for
not breaking the laws are the gallows or the wheel.
(I know that the analysis of one’s own thoughts is an
art only learnt by education, but a thief does not the
less act according to certain principles because he
is unable to express them). ‘Of what sort,’ he
argues, ‘are these laws that I am bound to observe,
that leave so great an interval between myself and
the rich man? He denies me the penny I ask of him,
and excuses himself by ordering from me a work of
which he himself knows nothing. Who has made
these laws? Were they not made by rich and
powerful men, who have never deigned to visit the
wretched hovels of the poor, who have never divided
a musty loaf of bread amid the innocent cries of
famished children and the tears of a wife? Let us
break these bonds, which are fatal to the greater
number, and only useful to a few indolent tyrants;
let us attack injustice in its source. I will return to
my state of natural independence; I will live for
some time happy and free on the fruits of my courage
and address; and if the day should ever come when I
have to suffer and repent for it, the time of suffering
will be short, and I shall have one day of misery for
many years of liberty and pleasure. As the king of
a small band, I will correct the errors of fortune, and
see these tyrants pale and tremble before one, whom
in their insolent arrogance they rated lower than their
horses or their dogs.’ Then religion hovers before the
mind of the criminal, who turns everything to a bad
use, and offering him a facile repentance and an
almost certain eternity of bliss does much to diminish
in his eyes the horror of that last tragedy of all.
But the man who sees in prospect a great number
of years, or perhaps the whole of his life, to be passed
in servitude and suffering before the eyes of fellow-citizens
with whom he is living in freedom and friendship,
the slave of those laws which had once protected
him, makes a useful comparison of all these circumstances
with the uncertain result of his crimes and
with the shortness of the time for which he would
enjoy their fruits. The ever present example of those
whom he actually sees the victims of their own imprudence,
impresses him much more strongly than
the sight of a punishment which hardens rather than
corrects him.
Capital punishment is injurious by the example
of barbarity it presents. If human passions, or the
necessities of war, have taught men to shed one another’s
blood, the laws, which are intended to moderate
human conduct, ought not to extend the savage
example, which in the case of a legal execution is all
the more baneful in that it is carried out with studied
formalities. To me it seems an absurdity, that the
laws, which are the expression of the public will,
which abhor and which punish murder, should themselves
commit one; and that, to deter citizens from
private assassination, they should themselves order a
public murder. What are the true and the most useful
laws? Are they not those covenants and conditions
which all would wish observed and proposed,
when the incessant voice of private interest is hushed
or is united with the interest of the public? What
are every man’s feelings about capital punishment?
Let us read them in the gestures of indignation and
scorn with which everyone looks upon the executioner,
who is, after all, an innocent administrator of
the public will, a good citizen contributory to the
public welfare, an instrument as necessary for the
internal security of a State as brave soldiers are for
its external. What, then, is the source of this contradiction;
and why is this feeling, in spite of reason,
ineradicable in mankind? Because men in their
most secret hearts, that part of them which more
than any other still preserves the original form of
their first nature, have ever believed that their lives
lie at no one’s disposal, save in that of necessity
alone, which, with its iron sceptre, rules the universe.
What should men think when they see wise
magistrates and grave priests of justice with calm
indifference causing a criminal to be dragged by their
slow procedure to death; or when they see a judge,
whilst a miserable wretch in the convulsions of his
last agonies is awaiting the fatal blow, pass away
coldly and unfeelingly, perhaps even with a secret
satisfaction in his authority, to enjoy the comforts and
pleasures of life? ‘Ah’ they will say, ‘these laws
are but the pretexts of force, and the studied cruel
formalities of justice are but a conventional language,
used for the purpose of immolating us with greater
safety, like victims destined in sacrifice to the insatiable
idol of tyranny. That assassination which
they preach to us as so terrible a misdeed we see
nevertheless employed by them without either scruple
or passion. Let us profit by the example. A violent
death seemed to us a terrible thing in the descriptions
of it that were made to us, but we see it is a matter
of a moment. How much less terrible will it be for a
man who, not expecting it, is spared all that there is
of painful in it.’
Such are the fatal arguments employed, if not
clearly, at least vaguely, by men disposed to crimes,
among whom, as we have seen, the abuse of religion
is more potent than religion itself.
If I am confronted with the example of almost all
ages and almost all nations who have inflicted the
punishment of death upon some crimes, I will reply,
that the example avails nothing before truth, against
which there is no prescription of time; and that the
history of mankind conveys to us the idea of an
immense sea of errors, among which a few truths,
confusedly and at long intervals, float on the surface.
Human sacrifices were once common to almost all
nations, yet who for that reason will dare defend
them? That some few states, and for a short time
only, should have abstained from inflicting death,
rather favours my argument than otherwise, because
such a fact is in keeping with the lot of all great
truths, whose duration is but as of a lightning flash
in comparison with the long and darksome night
that envelops mankind. That happy time has not
yet arrived when truth, as error has hitherto done,
shall belong to the majority of men; and from this
universal law of the reign of error those truths alone
have hitherto been exempt, which supreme wisdom
has seen fit to distinguish from others, by making
them the subject of a special revelation.
The voice of a philosopher is too feeble against
the noise and cries of so many followers of blind
custom, but the few wise men scattered over the
face of the earth will respond to me from their inmost
hearts; and, amid the many obstacles that keep it
from a monarch, should truth perchance arrive in
spite of him at his throne, let him know that it
comes there attended by the secret wishes of all
men; let him know that before his praises the bloody
fame of conquerors will be silenced, and that posterity,
which is just, will assign him the foremost place
among the pacific triumphs of a Titus, an Antonine,
or a Trajan.
Happy were humanity, if laws were now dictated
to it for the first time, when we see on the thrones of
Europe beneficent monarchs, men who encourage the
virtues of peace, the sciences and the arts, who are
fathers to their people, who are crowned citizens, and
the increase of whose authority forms the happiness of
their subjects, because it removes that intermediate
despotism, more cruel because less secure, by which
the people’s wishes, always sincere, and always
attended to when they can reach the throne, have
been usually intercepted and suppressed. If they, I
say, suffer the ancient laws to exist, it is owing to
the infinite difficulties of removing from errors the
revered rust of many ages; which is a reason for
enlightened citizens to desire with all the greater
ardour the continual increase of their authority.
Whosoever disturbs the public peace, or obeys
not the laws, that is, the conditions under which
men bear with and defend one another, ought to
be excluded from society, that is, to be banished
from it.
Banishment, it would seem, should be employed
in the case of those against whom, when accused of
an atrocious crime, there is a great probability but
not a certainty of guilt; but for this purpose a
statute is required, as little arbitrary and as precise
as possible, condemning to banishment any man who
shall have placed his country in the fatal dilemma of
either fearing him or of injuring him, leaving him,
however, the sacred right of proving his innocence.
Stronger reasons then should exist to justify the
banishment of a native than of a foreigner, of a man
criminated for the first time than of one who has been
often so situated.
But should a man who is banished and excluded
for ever from the society of which he was a member
be also deprived of his property? Such a question
may be regarded from different points of view. The
loss of property is a greater punishment than banishment;
there ought, therefore, to be some cases in
which, according to his crime, a man should lose the
whole, or part, or none of his property. The confiscation
of the whole will occur, when the legal sentence
of banishment is of a kind to annihilate all the
ties that exist between society and its offending member;
for in such a case the citizen dies, and only the
man remains; and with regard to the political body
civil death should produce the same effect as natural
death. It would seem then that the confiscated property
should pass to a man’s lawful heirs rather than
to the head of the State, since death and banishment
in its extreme form are the same with regard to the
body politic. But it is not by this subtlety that I dare
to disapprove of confiscations of property. If some
have maintained that confiscations have acted as
checks on acts of revenge and on the great power
of individuals, it is from neglecting to consider that,
however much good punishments may effect, they
are not for that reason always just, because to be
just they must be necessary; and an expedient injustice
can be tolerated by no legislator, who wishes to
close all doors against watchful tyranny, ever ready
to hold out flattering hopes, by temporary advantages
and by the prosperity of a few persons of celebrity,
in disregard of future ruin and of the tears of
numberless persons of obscurity. Confiscations place
a price on the heads of the feeble, cause the innocent
to suffer the punishment of the guilty, and make the
commission of crimes a desperate necessity even for
the innocent. What sadder sight can there be than
that of a family dragged down to infamy and misery
by the crimes of its head, unable to prevent them
by the submission imposed on it by the laws, even
supposing such prevention to have been within its
power!
Infamy is a sign of public disapprobation, depriving
a criminal of the good-will of his countrymen, of their
confidence, and of that feeling almost of fraternity that
a common life inspires. It does not depend upon the
laws. Hence the infamy which the laws inflict should
be the same as that which arises from the natural
relations of things, the same as that taught by universal
morality, or by that particular morality, which
depends on particular systems, and sets the law for
ordinary opinions or for this and that nation. If the
one kind of infamy is different from the other, either
the law loses in public esteem, or the ideas of
morality and honesty disappear, in spite of declamations,
which are never efficacious against facts.
Whoever declares actions to be infamous which are
in themselves indifferent, detracts from the infamy of
actions that are really in themselves infamous.
Corporal and painful punishments should not be
inflicted for those crimes which have their foundation
in pride, and draw from pain itself their glory and
nutriment. For such crimes ridicule and infamy are
more fitted, these being penalties which curb the
pride of fanatics by the pride of the beholders, and
only let truth itself escape their tenacity by slow and
obstinate efforts. By such an opposition of forces
against forces, and of opinions against opinions, the
wise legislator destroys that admiration and astonishment
among a people, which a false principle causes,
whose original absurdity is usually hidden from view
by the plausible conclusions deduced from it.
Penalties of infamy ought neither to be too
common, nor to fall upon too many persons at a
time; not too common, because the real and too
frequent effects of matters of opinion weaken the
force of opinion itself; not too general, because the
disgrace of many persons resolves itself into the
disgrace of none of them.
This, then, is the way to avoid confounding the
relations and invariable nature of things, which, being
unlimited by time and in ceaseless operation, confounds
and overturns all narrow regulations that
depart from it. It is not only the arts of taste and
pleasure which have for their universal principle
the faithful imitation of nature; but the art of politics
itself, at least that which is true and permanent, is
subject to this general maxim, since it consists in
nothing else than the art of directing in the best way
and to the same purposes the immutable sentiments
of mankind.
The more speedily and the more nearly in connection
with the crime committed punishment shall
follow, the more just and useful it will be. I say
more just, because a criminal is thereby spared
those useless and fierce torments of suspense which
are all the greater in a person of vigorous imagination
and fully conscious of his own weakness; more just
also, because the privation of liberty, in itself a
punishment, can only precede the sentence by the
shortest possible interval compatible with the requirements
of necessity. Imprisonment, therefore, is
simply the safe custody of a citizen pending the
verdict of his guilt; and this custody, being essentially
disagreeable, ought to be as brief and easy
as possible. The shortness of the time should be
measured both by the necessary length of the preparations
for the trial and by the seniority of claim to
a judgment. The strictness of confinement should
be no more than is necessary either for the prevention
of escape or for guarding against the concealment
of the proof of crimes. The trial itself should be
finished in the shortest time possible. What contrast
more cruel than that between a judge’s ease and
a defendant’s anguish? between the comforts and
pleasures of an unfeeling magistrate on the one
hand, and the tears and wretchedness of a prisoner
on the other? In general, the weight of a punishment
and the consequence of a crime should be as efficacious
as possible for the restraint of other men and
as little hard as possible for the individual who is
punished; for one cannot call that a proper form of
society, where it is not an infallible principle, that its
members intended, in constituting it, to subject themselves
to as few evils as possible.
I said that the promptness of punishment is more
useful, because the shorter the interval of time between
the punishment and the misdeed, the stronger
and the more lasting in the human mind is the association
of these ideas, crime and punishment, so that insensibly
they come to be considered, the one as the
cause and the other as its necessary and inevitable
consequence. It is a proved fact that the association
of ideas is the cement of the whole fabric of the
human intellect, and that without it pleasure and
pain would be isolated and ineffective feelings. The
further removed men are from general ideas and
universal principles, that is, the more commonplace
they are, the more they act by their immediate and
nearest associations, to the neglect of remoter and
more complex ones, the latter being of service only
to men strongly impassioned for a given object of
pursuit, inasmuch as the light of attention illuminates
a single object, whilst it leaves the others obscure.
They are also of service to minds of a higher quality,
because, having acquired the habit of running rapidly
over many subjects at a time, they possess facility in
placing in contrast with one another many partial
feelings, so that the result of their thoughts, in other
words, their action, is less perilous and uncertain.
The close connection, therefore, of crime and
punishment is of the utmost importance, if it be
desirable that in rough and common minds there
should, together with the seductive idea of an advantageous
crime, immediately start up the associated
idea of its punishment. Long delay has no other
effect than the perpetual separation of these two
ideas; and whatever the impression produced by the
punishment of a crime, it produces it less as a punishment
than as a sight, and only produces it when the
horror of the particular crime, which would serve to
strengthen the feeling of the punishment, has been
weakened in the minds of the spectators.
Another principle would serve admirably to draw
still closer the important connection between a misdeed
and its punishment, and that is, that the latter
should as far as possible conform to the nature of the
crime. This analogy facilitates marvellously the
contrast that ought to exist between the impulse to
the crime and the counter-influence of the punishment,
the one, that is, diverting the mind and guiding it
to an end quite different from that to which the
seductive idea of transgressing the law endeavours
to lead it.
Persons guilty of lesser crimes are usually either
punished in the obscurity of a prison, or transported,
as an example to nations who have given no offence,
to a distant and therefore almost useless servitude.
Since the gravest crimes are not those which men are
tempted to commit on the spur of the moment, the
public punishment of a great misdeed will be regarded
by most men as strange and of impossible occurrence;
but the public punishment of lighter crimes,
to which men’s thoughts more readily incline, will
make an impression, which, at the same time that it
diverts the mind from them, will restrain it still more
from crimes of greater gravity. Punishments should
not only be proportioned to one another and to
crimes in point of force, but also in the mode of
their infliction.
One of the greatest preventives of crimes is, not the
cruelty of the punishments attached to them, but their
infallibility, and consequently that watchfulness on the
part of the magistrates and that inexorable severity
on the part of the judge which, to be a useful virtue,
must coincide with a mild system of laws. The certainty
of a punishment, moderate though it be, will
ever make a stronger impression than the fear of
another, more terrible, perhaps, but associated with the
hope of impunity; for even the least evils when certain
always terrify men’s minds, and hope, that gift
of heaven, which often makes up to us for everything,
always throws into the distance the idea of greater
evils, especially when its force is increased by impunity,
which avarice and weakness so often grant.
It is sometimes the custom to release a man from
the punishment of a slight crime when the injured
person pardons him: an act, indeed, which is in accordance
with mercy and humanity but contrary to
public policy; as if a private citizen could by his
remission do away with the necessity of the example
in the same way that he can excuse the reparation
due for the offence. The right of punishing does not
rest with an individual, but with the community as a
whole, or the sovereign. An individual can only renounce
his particular portion of that right, not annul
that of all the rest.
In proportion as punishments become milder,
clemency and pardon become less necessary. Happy
the nation in which their exercise should be baneful!
Clemency, therefore, that virtue, which has sometimes
made up in a sovereign for failings in all the other
duties of the throne, ought to be excluded in a
perfect system of legislation, where punishments are
mild and the method of trial regular and expeditious.
This truth will appear a hard one to anybody living
in the present chaotic state of the criminal law, where
the necessity of pardon and favours accords with the
absurdity of the laws and with the severity of sentences
of punishment. This right of pardon is indeed
the fairest prerogative of the throne, the most desirable
attribute of sovereignty; it is, however, the tacit
mark of disapproval that the beneficent dispensers of
the public happiness exhibit towards a code, which
with all its imperfections claims in its favour the prejudice
of ages, the voluminous and imposing array of
innumerable commentators, the weighty apparatus of
unending formalities, and the adhesion of those persons
of half-learning who, though less feared than
real philosophers, are really more dangerous. But
let it be remembered that clemency is the virtue of
the maker, not of the executor, of the laws; that it
should be conspicuous in the code of laws rather than
in particular judgments; that the showing to men,
that crimes may be pardoned and that punishment
is not their necessary consequence, encourages the
hope of impunity, and creates the belief that sentences
of condemnation, which might be remitted and
are not, are rather violent exhibitions of force than
emanations of justice. What shall be said then when
the sovereign grants a pardon, that is, public immunity
to an individual, and when a private act of unenlightened
kindness constitutes a public decree of
impunity? Let the laws therefore be inexorable and
their administrators in particular cases inexorable, but
let the law-maker be mild, merciful, and humane.
Let him found his edifice, as a wise architect, on the
basis of self-love; let the general interest be the sum
of the interests of each, and he will no longer be
constrained, by partial laws and violent remedies to
separate at every moment the public welfare from
that of individuals, and to raise the appearance of
public security on fear and mistrust. As a profound
and feeling philosopher let him allow men, that is,
his brethren, to enjoy in peace that small share
of happiness which is given them to enjoy in this
corner of the universe, in that immense system
established by the First Cause, by Him Who Is.
There remain two questions for me to examine: the
first, whether asylums of refuge are just, and whether
international agreements of extradition are expedient
or not. There should be no spot within the boundaries
of any country independent of the laws. Every
citizen should be followed by their power, as every
substance is followed by its shadow. There is only a
difference of degree between impunity and the right
of asylum; and as the effective influence of punishment
consists more in its inevitability than in its
violence, asylums do more to invite to crimes than
punishments do to deter from them. The multiplication
of asylums is the formation of so many petty
sovereignties; for where there are no laws to command,
there it is easy for new laws, opposed to the general
laws of a country, to be formed, and consequently for
a spirit opposed to that of the whole collective social
body to arise. All history shows that from asylums
have issued great revolutions in States and in the
opinions of mankind.
Some persons have maintained that a crime, that
is, an action contrary to the laws, is punishable
wherever committed, as if the character of subject
were indelible, or, in other words, synonymous with,
nay, worse than, the character of slave; as if a man
could be the subject of one kingdom and the resident
of another, or as if his actions could without contradiction
be subordinate to two sovereign powers and
to two legal systems often contradictory. So some
think that a cruel action done, say, at Constantinople
is punishable at Paris, for the abstract reason that he
who offends humanity deserves to have collective
humanity for his enemy, and merits universal execration;
as if judges were the avengers of human sensibility
in general, and not rather of the covenants that
bind men together. The place of punishment is the
place of the crime, because there, and there only, is it
a compulsory duty to injure an individual, to prevent
an injury to the public. A villain, but one who has not
broken the covenants of the society of which he was
not a member, may be an object of fear, and for that
reason be expelled and exiled by the superior power
of that society; but he cannot be legally and formally
punished, since it is for the laws to avenge, not the
intrinsic malice of particular actions, but the violation
of compacts.
But whether the international extradition of criminals
be useful I would not venture to decide, until
laws more in conformity with the needs of humanity,
until milder penalties, and until the emancipation of
law from the caprice of mere opinion, shall have given
security to oppressed innocence and hated virtue;
until tyranny shall have been confined, by the force
of universal reason which ever more and more unites
the interests of kings and subjects, to the vast plains
of Asia; however much the conviction of finding
nowhere a span of earth where real crimes were pardoned
might be the most efficacious way of preventing
their occurrence.
The second question is, whether it is expedient to
place a reward on the head of a known criminal, and
to make of every citizen an executioner by arming
him against the offender. Either the criminal has
fled from his country or he is still within it. In the
first case the sovereign encourages the commission of
a crime and exposes its author to a punishment,
being thereby guilty of an injury and of an usurpation
of authority in the dominions of another, and
authorising other nations to do the same by himself.
In the second case the sovereign displays his own
weakness, for he who has the power wherewith to
defend himself seeks not to purchase it. Moreover,
such an edict upsets all ideas of morality and virtue,
which are ever ready to vanish from the human mind
at the very slightest breath. Now the laws invite to
treachery, and anon they punish it; with one hand
the legislator tightens the bonds of the family, of
kindred, and of friendship, whilst with the other he
rewards whosoever violates and despises them;
always in self-contradiction, he at one moment
invites to confidence the suspicious natures of men,
and at another scatters mistrust broadcast among
them. Instead of preventing one crime, he causes a
hundred. These are the resources of weak nations,
whose laws are but the temporary repairs of a ruined
building that totters throughout. In proportion as a
nation becomes enlightened, good faith and mutual
confidence become necessary, and tend ever more to
identify themselves with true policy. Tricks, intrigues,
dark and indirect paths, are for the most part foreseen,
and the general quickness of all men collectively
over-reaches and blunts that of single individuals.
The very ages of ignorance, in which public morality
inclines men to obey the dictates of private morality,
serve as instruction and experience for the ages of
enlightenment. But laws which reward treachery
and stir up clandestine hostility by spreading mutual
suspicion among citizens, are opposed to this union
of private and public morality, a union which is so
necessary, and to the observance of which individuals
might owe their happiness, nations their peace, and
the universe a somewhat longer period of quiet and
repose from the evils which at present pervade it.
Not only is it the general interest that crimes should
not be committed, but that they should be rare in
proportion to the evils they cause to society. The
more opposed therefore that crimes are to the public
welfare, and the more numerous the incentives to
them, the stronger should be the repellent obstacles.
This principle accordingly establishes the necessity
of a certain proportion between crimes and punishments.
If pleasure and pain are the motors of sensitive
beings, if the invisible lawgiver of humanity has
decreed rewards and punishments as one of the
motives to impel men to even their noblest endeavours,
the inexact distribution of these motives will
give rise to that contradiction, as little noticed as it is
of common occurrence, namely, that the laws punish
crimes which are entirely of their own creation. If
an equal penalty is attached to two crimes of unequal
injury to society, the greater crime of the two, if it
promise a greater advantage than the other, will have
no stronger motive in restraint of its perpetration.
Whoever, for example, sees the same punishment of
death decreed for the man who kills a pheasant and
the man who slays his fellow or falsifies an important
document, will draw no distinction between such
crimes; and thus moral sentiments, the product only
of many ages and of much bloodshed, the slowest
and most difficult attainment of the human mind,
dependent, it has been thought, on the aid of the
most sublime motives and on a parade of the gravest
formalities, will be destroyed and lost.
It is impossible to prevent all the disorders that
may arise in the universal conflict of human passions.
Their increase depends on that of population and on
the crossings of private interests, which cannot be
directed with geometrical exactness to the public
welfare. In political arithmetic the calculation of
probabilities must be substituted for mathematical
exactness. Glance at the history of the world, and
you will see disorders increase with the increase of
the bounds of empire; thus national feeling being to
the same extent diminished, the general inducement
to crime increases with the greater interest of each
individual in such disorders, and on this account the
necessity for aggravating penalties ever continues to
increase.
That force, similar to the force of gravitation,
which constrains us to seek our own well-being, only
admits of counteraction in proportion to the obstacles
opposed to it. The effects of this force make up the
confused series of human actions; if these clash together
and impede one another, punishments, which I
would call political obstacles, prevent bad effects from
resulting, without destroying the impelling cause,
which lies in the sensibility inseparable from humanity;
and the legislator, in enacting them, acts the part of
a clever architect, whose function it is to counteract
the tendency of gravitation to cause a building to
fall, and to bring to bear all the lines which contribute
to its strength.
Given the necessity of the aggregation of mankind,
and given the covenants which necessarily
result from the very opposition of private interests, a
scale of offences may be traced, beginning with those
which tend directly to the destruction of society, and
ending with acts of the smallest possible injustice
committed against individual members of it. Between
these extremes are comprised all the actions opposed
to the public welfare which are called crimes, and
which by imperceptible degrees decrease in enormity
from the highest to the lowest. If the infinite and
obscure combinations of human actions admitted of
mathematical treatment, there ought to be a corresponding
scale of punishments, varying from the
severest to the slightest penalty. If there were an
exact and universal scale of crimes and punishments,
we should have an approximate and general test by
which to gauge the degrees of tyranny and liberty
in different governments, the relative state of the
humanity or wickedness of different nations. But the
wise legislator will rest satisfied with marking out
the principal divisions in such a scale, so as not to
invert their order, nor to affix to crimes of the first
degree punishments due to those of the last.
We have seen that the true measure of crimes is the
injury done to society. This is one of those palpable
truths which, however little dependent on quadrants
or telescopes for their discovery, and fully within the
reach of any ordinary intelligence, are yet, by a marvellous
combination of circumstances, only recognised
clearly and firmly by some few thinkers, belonging
to every nationality and to every age. But Asiatic
ideas, and passions clothed with authority and power,
have, generally by imperceptible movements, sometimes
by violent assaults on the timid credulity of
mankind, dissipated those simple notions, which perhaps
formed the first philosophy of primitive communities,
and to which the enlightenment of this age
seems likely to reconduct us, but to do so with that
greater sureness, which can be gained from an exact
investigation into things, from a thousand unhappy
experiences, and from the very obstacles that militate
against it.
They who have thought that the criminal’s intention
was the true measure of crimes were in the
wrong. For the intention depends on the actual
impression of things upon a man, and on his precedent
mental disposition, things which vary in all
men and in each man, according to the very rapid
succession of his ideas, his passions, and his circumstances.
It would, therefore, be necessary to form
not only a particular code for each citizen, but a
fresh law for every crime. Sometimes with the best
intentions men do the greatest evil to society; and
sometimes with the very worst they do it the greatest
good.
Others again measure crimes rather by the rank
of the person injured than by their importance in
regard to the public weal. Were this the true measure
of crimes, any act of irreverence towards the
Supreme Being should be punished more severely
than the assassination of a monarch, whereas the
superiority of His nature affords an infinite compensation
for the difference of the offence.
Lastly, some have thought that the gravity of an
act’s sinfulness should be an element in the measure
of crimes. But an impartial observer of the true
relations between man and man, and between man
and God, will easily perceive the fallacy of this
opinion. For the former relationship is one of equality;
necessity alone, from the clash of passions and opposing
interests, having given rise to the idea of the public
utility, the basis of human justice. But the other
relationship is one of dependence on a perfect Being
and Creator, who has reserved to Himself alone the
right of being at the same time legislator and judge,
and can alone unite the two functions without bad
effects. If He has decreed eternal punishments to
those who disobey His omnipotence, what insect shall
dare to take the place of Divine justice, or shall wish
to avenge that Being, who is all-sufficient to Himself,
who can receive from things no impression of pleasure
nor of pain, and who alone of all beings acts
without reaction? The degree of sinfulness in an
action depends on the unsearchable wickedness of
the heart, which cannot be known by finite beings
without a revelation. How, then, found thereon a
standard for the punishment of crimes? In such a
case men might punish when God pardons, and
pardon when God punishes. If men can act contrary
to the Almighty by offending Him, they may also do
so in the punishments they inflict.
Some crimes tend directly to the destruction of society
or to the sovereign who represents it; others
affect individual citizens, by imperilling their life, their
property, or their honour; whilst others, again, are
actions contrary to the positive or negative obligations
which bind every individual to the public weal.
Any action that is not included between the two
above-indicated extremes can only be called a crime
or punished as such by those who find their interest
in so calling it. The uncertainty of these limits has
produced in different nations a system of ethics contrary
to the system of laws, has produced many
actual systems of laws at total variance with one
another, and a quantity of laws which expose even
the wisest man to the severest penalties. Consequently
the words virtue and vice have become of
vague and variable meaning, and from the uncertainty
thus surrounding individual existence, listlessness
and a fatal apathy have spread over political
communities.
The opinion that each citizen should have liberty
to do whatsoever is not contrary to the laws, without
fear of any other inconvenience than such as may
arise from the action itself—this is the political dogma
that should be believed by the people and promulgated
by the chief magistrates, a dogma as sacred as
that of the incorrupt guardianship of the laws, without
which there can be no legitimate society; a just
compensation to mankind for their sacrifice of that
entire liberty of action which belongs to every sensitive
being, and is only limited by the extent of its
force. This it is that forms liberal and vigorous
souls, and enlightened minds; that makes men virtuous
with that virtue which can resist fear, and not
with that flexible kind of prudence which is only
worthy of a man who can put up with a precarious
and uncertain existence.
Whosoever will read with a philosophical eye the
codes and annals of different nations will find almost
always that the names of virtue and vice, of good
citizen and criminal, are changed in the course of
ages, not in accordance with the changes that occur
in the circumstances of a country, and consequently
in conformity with the general interest, but in accordance
with the passions and errors that have swayed
different legislators in succession. He will observe
full often, that the passions of one age form the basis
of the morality of later ones; that strong passions,
the offspring of fanaticism and enthusiasm, weakened
and, so to speak, gnawed away by time (which reduces
to a level all physical and moral phenomena) become
little by little the prudence of the age, and a useful
instrument in the hand of the strong man and the
clever. In this way the vaguest notions of honour
and virtue have been produced; for they change with
the changes of time, which causes names to survive
things; as also with the changes of rivers and mountains,
which form frequently the boundaries of moral
no less than of physical geography.
The first class of crimes—that is, the worst, because
they are the most injurious to society—are those
known as crimes of high treason. Only tyranny and
ignorance, which confound words and ideas of the
clearest meaning, can apply this name, and consequently
the heaviest punishment, to different kinds
of crimes, thus rendering men, as in a thousand other
cases, the victims of a word. Every crime, be it ever
so private, injures society; but every crime does not
aim at its immediate destruction. Moral, like physical
actions, have their limited sphere of activity, and
are differently circumscribed, like all the movements
of nature, by time and space; and therefore only a
sophistical interpretation, which is generally the philosophy
of slavery, can confound what eternal truth has
distinguished by immutable differences.
After crimes of high treason come crimes opposed
to the personal security of individuals. This security
being the primary end of every properly constituted
society, it is impossible not to affix to the violation
of any citizen’s right of personal security one of the
severest punishments that the laws allow.
Some crimes are injuries to a man’s person,
others to his property, and the former should certainly
be punished by corporal punishments.
Offences, therefore, against personal security and
liberty are among the greatest of crimes. Under
this head fall not only the assassinations and thefts
of the common people, but those also committed by
the nobles and magistrates, whose influence, acting
with greater force and to a greater distance, destroys
in those subject to them all ideas of justice and duty,
and gives strength to those ideas of the right of the
strongest, which are equally perilous ultimately to
him who exercises no less than to him who endures it.
Neither the noble nor the rich man ought to be
able to pay a price for injuries committed against
the feeble and the poor; else riches, which, under the
protection of the laws, are the prize of industry,
become the nourishment of tyranny. Whenever the
laws suffer a man in certain cases to cease to be a
person and to become a thing, there is no liberty; for
then you will see the man of power devoting all his
industry to gather from the numberless combinations
of civil life those which the law grants in his favour.
This discovery is the magic secret that changes
citizens into beasts of burden, and in the hand of the
strong man forms the chain wherewith to fetter the
actions of the imprudent and the weak. This is the
reason why in some governments, that have all the
semblance of liberty, tyranny lies hidden or insinuates
itself unforeseen, in some corner neglected by the
legislator, where insensibly it gains force and grows.
Men oppose the strongest barriers against open
tyranny, but they see not the imperceptible insect,
which gnaws them away, and makes for the invading
stream an opening that is all the more sure by very
reason of its concealment from view.
Of what kind, then, will be the punishments due
to the crimes of nobles, whose privileges form so
great a part of the laws of different countries? I
will not here inquire whether this traditional distinction
between nobles and commons be advantageous
in a government, or necessary in a monarchy; nor
whether it be true that a nobility forms an intermediate
power in restraint of the excesses of the two
extremes, and not rather a caste which, in slavery to
itself and to others, confines all circulation of merit
and hope to a very narrow circle, like those fertile and
pleasant oases scattered among the vast sand-deserts
of Arabia; nor whether, supposing it to be true that
inequality is inevitable and useful in society, it be
also true that such inequality should subsist between
classes rather than individuals, and should remain with
one part of the body politic rather than circulate
through the whole; whether it should rather perpetuate
itself than be subject to constant self-destruction
and renovation. I will confine myself to the
punishments proper for nobles, affirming that they
should be the same for the greatest citizen as for the
least. Every distinction of honour or of riches presupposes,
to be legitimate, a prior state of equality,
founded on the laws, which regard all subjects as
equally dependent on themselves. One must suppose
the men, who renounced their natural state of despotic
independence, to have said: ‘Let him who is
more industrious than his fellows have greater honours,
and let his fame be greater among his successors;
let him who is more prosperous and
honoured hope even to become more so, but let him
fear no less than other men to break those conditions
by virtue of which he is raised above them.’ True it
is that such decrees did not emanate in a convocation
of the human race, but such decrees exist in the
eternal relations of things; they do not destroy the
supposed advantages of a nobility, though they prevent
its abuses; and they make laws feared, by
closing every admission to impunity. And if any
one shall say that the same punishment inflicted
upon a noble and upon a commoner is not really the
same, by reason of the diversity of their education,
and of the disgrace spread over an illustrious family,
I will reply, that the sensibility of the criminal is not
the measure of punishment, but the public injury,
and that this is all the greater when committed by
the more highly favoured man; that equality of
punishment can only be so when considered extrinsically,
being really different in each individual;
and that the disgrace of a family can be removed by
public proofs of kindness on the part of the sovereign
towards the innocent family of the criminal. And
who is there but knows that formalities which strike
the senses serve as reasonings with the credulous and
admiring populace?
Injuries that are personal and affect a man’s honour—that
is, the fair share of favour that he has a right to
expect from others—should be punished with disgrace.
There is a remarkable contradiction between the
civil laws, which set so jealous and supreme a guard
upon individual life and property, and the laws of so-called
honour, which set opinion above everything.
This word honour is one of those that have served as
the basis for long and brilliant argumentations, without
any fixed or permanent idea being attached to
it. How miserable is the condition of human minds,
more distinctly cognisant of the remotest and least
important ideas about the movements of the heavenly
bodies, than of those near and important moral notions,
which are ever fluctuating and confused, according
as the winds of passion impel them and a
well-guided ignorance receives and transmits them!
But the seeming paradox will vanish, if one considers,
that, as objects become confused when too
near the eyes, so the too great propinquity of moral
ideas easily causes the numerous simple ideas which
compose them to become blended together, to the
confusion of those clear lines of demarcation
demanded by the geometrical spirit, which would fain
measure exactly the phenomena of human sensibility.
And the wonder will vanish altogether from the impartial
student of human affairs, who will suspect that
so great a moral machinery and so many restraints
are perchance not needed, in order to render men
happy and secure.
This honour, then, is one of those complex ideas
which are an aggregate not only of simple ideas but
of ideas no less complex than themselves, and which in
their various presentments to the mind now admit
and now omit some of their different component elements,
only retaining some few common ideas, just as
in algebra several complex quantities admit of a common
divisor. To find this common divisor in the different
ideas that men form of honour, we must cast a
rapid glance over the first formation of communities.
The necessity of remedying the disorders caused
by the physical despotism of each man singly produced
the first laws and the first magistrates; this
was the end and object of the institution of societies,
and this end has always been maintained, either in
reality or appearance, at the head of all codes, even
of those that operated otherwise. But the closer
contact of men with one another and the progress
of their knowledge brought about an endless series of
mutual actions and needs, which ever lay beyond the
foresight of the laws and below the actual power of
individuals. From this epoch began the despotism
of opinion, which afforded the only means for obtaining
from others those benefits and averting those
evils, for which the laws failed to provide. It is this
opinion that is the trouble equally of the wise man
and the fool; that has raised the semblance of virtue
to higher credit than virtue itself; that even makes
the rascal turn missionary, because he finds his own
interest therein. Hence the favour of men became
not only useful but necessary, if a man would not
fall below the general level. Hence, not only does the
ambitious man seek after such favour as useful to
himself, and the vain man go begging for it as a proof
of his merit, but the man of honour also may be
seen to require it as a necessity. This honour is a
condition that very many men attach to their own
existence. Born after the formation of society, it
could not be placed in the general deposit; it is rather
a momentary return to the state of nature, a momentary
withdrawal of one’s self from the dominion of
those laws which, under the circumstances, fail to
afford the sufficient defence required of them.
Hence both in the state of extreme political
liberty and in that of extreme political subjection the
ideas of honour disappear or get perfectly confused
with others. For in the former the despotism of the
laws renders the pursuit of the favour of others of no
avail; and in the latter state the despotism of men,
by destroying civil existence, reduces everybody to a
precarious and temporary personality. Honour, therefore,
is one of the fundamental principles of those
monarchies that are a mitigated form of despotism,
being to them what revolutions are to despotic States,
namely, a momentary return to the state of nature,
and a reminder to the chief ruler of the condition of
primitive equality.
From this necessity of the favour of other people
arose private duels, which sprang up precisely in an
anarchical state of the laws. It is said they were unknown
to antiquity, perhaps because the ancients
did not meet suspiciously armed in the temples, the
theatres, or with friends; perhaps because the duel was
an ordinary and common sight, presented to the people
by gladiators, who were slaves or low people, and
freemen disdained to be thought and called private
gladiators. In vain has it been sought to extirpate
the custom by edicts of death against any man accepting
a challenge, for it is founded on that which
some men fear more than death; since without the
favour of his fellows the man of honour foresees himself
exposed either to become a merely solitary being,
a condition insufferable to a sociable man, or to
become the butt of insults and disgrace which, from
their constant operation, prevail over the fear of punishment.
Why is it that the lower orders do not for
the most part fight duels like the great? Not only
because they are disarmed, but because the need of
the favour of others is less general among the people
than among those who, in higher ranks, regard themselves
with greater suspicion and jealousy.
It is not useless to repeat what others have
written, namely, that the best method of preventing
this crime is to punish the aggressor—in other words,
the man who gives rise to the duel—declaring him
to be innocent who without his own fault has been
constrained to defend that which existing laws do
not assure to him, that is, opinion.
Thefts without violence should be punished by fine.
He who enriches himself at another’s expense ought
to suffer at his own. But, as theft is generally only
the crime of wretchedness and despair, the crime of
that unhappy portion of mankind to whom the right
of property (a terrible, and perhaps not necessary
right[67]) has left but a bare subsistence; and as pecuniary
penalties increase the number of criminals
above the number of crimes, depriving the innocent
of their bread in order to give it to the wicked, the
fittest punishment will be that kind of servitude which
alone can be called just, namely, the temporary servitude
of a man’s labour and person for the compensation
of society, the personal and absolute dependence
due from a man who has essayed to exercise an unjust
superiority over the social compact. But when the
theft is accompanied with violence, the punishment
also should be a combination of corporal and servile
punishment. Some previous writers have shown the
evident abuse that arises from not distinguishing
punishments for thefts of violence from those for
thefts of cunning, thus making an absurd equation between
a large sum of money and the life of a man.
For they are crimes of a different nature; and in
politics, as in mathematics, this axiom is most certain,
that between heterogeneous quantities the terms of
difference are infinite; but it is never superfluous to
repeat what has hardly ever been put into practice.
Political machinery more than anything else retains
the motion originally given to it, and is the slowest to
adapt itself to a fresh one.
Smuggling is a real crime against the sovereign
and the nation; but its punishment should not be
one of disgrace, because its commission incurs no
disgrace in public opinion.
But why does this crime never entail disgrace upon
its author, seeing that it is a theft against the prince,
and consequently against the nation? I answer, that
offences which men do not consider can be committed
against themselves do not interest them enough to
produce public indignation against their perpetrator.
Smuggling is an offence of this character. Men in
general, on whom remote consequences make very
feeble impressions, do not perceive the harm that
smuggling can do them, nay, often they enjoy a present
advantage from it. They only perceive the injury
done to the sovereign; they are not interested, therefore,
in withdrawing their favour from a smuggler as
much as they are in doing so from a man who commits
a theft in private life, who forges a signature, or
brings upon them other evils. The principle is self-evident,
that every sensitive being only interests himself
in the evils which he knows. This crime arises
from the law itself; since the benefit it promises
increases with the increase of the import duty, and
therefore the temptation and the facility of committing
it increases with the circumference of territory to be
guarded and the small size of the prohibited wares.
The penalty of losing both the prohibited goods, and
whatever effects are found with them, is most just;
but its efficacy will be greater in proportion as the
import duty is lower, because men only incur risks
relative to the advantage derivable from the prosperous
issue of their undertaking.
But ought such a crime to be let go unpunished in
the case of a man who has no effects to lose? No:
there are kinds of smuggling of so much importance
to the revenue (which is so essential and so difficult
a part of a good system of laws), that such a crime
deserves a considerable punishment, even imprisonment
or servitude; but imprisonment and servitude
conformable to the nature of the crime itself. For
example, the prison of the tobacco-smuggler ought
not to be the same as that of the assassin or the thief;
and the labours of the former, limited to the work and
service of the very treasury he wished to defraud, will
be the punishments most conformable to the nature
of his crime.
The good faith of contracts and the security of
commerce compel the legislator to assure to creditors
the persons of insolvent debtors. But I think
it important to distinguish the fraudulent from the
innocent bankrupt, the former of whom should
receive the same punishment as that assigned to
false coiners, since it is no greater crime to falsify
a piece of coined money, the pledge of men’s mutual
obligations, than to falsify those obligations themselves.
But the innocent bankrupt—he who, after a
searching inquiry, has proved before his judges that
the wickedness or misfortune of some one else, or
the inevitable vicissitudes of human prudence, have
despoiled him of his substance—for what barbarous
reason ought such an one to be thrown into prison, and
deprived of the only poor benefit that remains to him,
a barren liberty, in order to suffer the agonies of the
really guilty, and, in despair at his ruined honesty,
to repent perhaps of that innocence, by which he
lived peacefully under the protection of those laws
that it was not in his power not to offend against?
Laws, too, dictated by the powerful by reason of their
rapacity, and endured by the feeble by reason of that
hope, which generally glimmers in the human heart,
and leads us to believe that unfavourable contingencies
are reserved for others, favourable ones for ourselves!
Men left to their natural feelings love cruel
laws, however much, as subject to them themselves,
it might be for their individual interest that they
should be mitigated; because their fear of being injured
by others is greater than their desire to inflict
injuries themselves.
To return to the innocent bankrupt. Granting
that his obligation should not be extinguishable by
anything short of total payment; granting that he
should not be suffered to withdraw from it without the
consent of the parties interested, nor to transfer under
the dominion of other laws his industry, which should
perforce be employed, under penalties, to enable him
to satisfy his creditors in proportion to his profits;
what fair pretext, I ask, can there be, such as the
security of commerce or the sacred right of property,
to justify the deprivation of his liberty? Such a deprivation
is only of use, when it is sought to discover
the secrets of a supposed innocent bankrupt by the
evils of servitude, a most unusual circumstance where
a rigorous inquiry is instituted. I believe it to be a
maxim in legislation, that the amount of political
inconveniences varies directly in proportion to the
injury they do the public, and inversely in proportion
to the difficulty of their proof.
It would be possible to distinguish a case of fraud
from a grave fault, a grave fault from a light one, and
this again from perfect innocence; then to affix to the
first the penalties due for crimes of falsification; to the
second lesser penalties, but with the loss of personal
liberty; and, reserving for the last degree the free choice
of the means of recovery, to deprive the third degree
of such liberty, whilst leaving it to a man’s creditors.
But the distinction between grave and light should
be fixed by the blind impartiality of the laws, not
by the dangerous and arbitrary wisdom of a judge.
The fixings of limits are as necessary in politics
as in mathematics, equally in the measurement
of the public welfare as in the measurement of magnitudes.[68]
How easily might the farseeing legislator hinder
a large part of culpable bankruptcy, and relieve the
misfortunes of the industrious and innocent! The
public and open registration of all contracts; freedom
to every citizen to consult them in well-kept documents;
a public bank formed by wisely-apportioned
taxes upon prosperous commerce, and intended for
the timely relief of any unfortunate and innocent
member of the company;—such measures would have
no real drawback and might produce numberless advantages.
But easy, simple, and great laws, which
await but the signal of the legislator, in order to scatter
riches and strength through a nation—laws which
would be celebrated from generation to generation in
hymns of gratitude—are either the least thought of or
the least desired of all. An uneasy and petty spirit, the
timid prudence of the present moment, and a circumspect
stiffness against innovations, master the feelings
of those who govern the complex actions of mankind.
Lastly, among the crimes of the third kind are
especially those which disturb the public peace and
civic tranquillity; such as noises and riots in the public
streets, which were made for the convenience of men
and traffic, or fanatical sermons that excite the easily
roused passions of the curious multitude. For their
passions gather force from the number of hearers, and
more from a certain obscure and mysterious enthusiasm,
than from clear and quiet reasoning, which
never has any influence over a large mass of men.
The lighting of a city by night at the public
expense; the distribution of guards in the different
quarters; simple moral discourses on religion, but
only in the silent and holy quiet of churches, protected
by public authority; speeches on behalf of private and
public interests in national assemblies, parliaments,
or wherever else the majesty of sovereignty resides—all
these are efficacious means for preventing the
dangerous condensation of popular passions. These
means are a principal branch of that magisterial
vigilance which the French call police; but if this is
exercised by arbitrary laws, not laid down in a code
of general circulation, a door is opened to tyranny,
which ever surrounds all the boundaries of political
liberty. I find no exception to this general axiom,
that ‘Every citizen ought to know when his actions
are guilty or innocent.’ If censors, and arbitrary magistrates
in general, are necessary in any government,
it is due to the weakness of its constitution, and is
foreign to the nature of a well organised government.
More victims have been sacrificed to obscure tyranny
by the uncertainty of their lot than by public and
formal cruelty, for the latter revolts men’s minds
more than it abases them. The true tyrant always begins
by mastering opinion, the precursor of courage;
for the latter can only show itself in the clear light of
truth, in the fire of passion, or in ignorance of danger.
Wise governments suffer not political idleness in
the midst of work and industry. I mean by political
idleness that existence which contributes nothing to
society either by its work or by its wealth; which
gains without ever losing; which, stupidly admired
and reverenced by the vulgar, is regarded by the wise
man with disdain, and with pity for the beings who are
its victims; which, being destitute of that stimulus of
an active life, the necessity of preserving or increasing
the store of worldly goods, leaves to the passions of
opinion, not the least strong ones, all their energy.
This kind of idleness has been confused by austere
declaimers with that of riches, gathered by industry;
but it is not for the severe and narrow virtue of some
censors, but for the laws, to define what is punishable
idleness. He is not guilty of political idleness, who
enjoys the fruits of the virtues or vices of his ancestors
and sells in exchange for his pleasures bread and
existence to the industrious poor, who carry on peacefully
the silent war of industry against wealth, instead
of by force a war uncertain and sanguinary. The
latter kind of idleness is necessary and useful, in proportion
as society becomes wider and its government
more strict.
Suicide is a crime to which a punishment properly
so called seems inadmissible, since it can only fall upon
the innocent or else upon a cold and insensible body.
If the latter mode of punishing the crime makes no
more impression on the living than would be made by
inflicting violence on a statue, the other mode is
unjust and tyrannical, inasmuch as political freedom
necessarily presupposes the purely personal nature of
punishment. Men love life only too much, and
everything that surrounds them confirms them in this
love. The seductive image of pleasure, and hope,
that sweetest illusion of mortals, for the sake of
which they swallow large draughts of evil mixed with
a few drops of contentment, are too attractive, for one
ever to fear, that the necessary impunity of such a
crime should exercise any general influence. He
who fears pain, obeys the laws; but death puts an end
in the body to all the sources of pain. What, then,
will be the motive which shall restrain the desperate
hand of the suicide?
Whoever kills himself does a lesser evil to society
than he who for ever leaves the boundaries of his
country, for whilst the former leaves therein all his
substance, the latter transports himself together with
part of his property. Nay, if the power of a community
consists in the number of its members, the
man who withdraws himself to join a neighbouring
nation does twice as great an injury as he who simply
by death deprives society of his existence. The
question, therefore, reduces itself to this: whether
the leaving to each member of a nation a perpetual
liberty to absent himself from it be advantageous or
detrimental.
No law ought to be promulgated that has not
force to back it, or that the nature of things deprives
of validity; and as minds are ruled by opinion, which
itself follows the slow and indirect impressions of
legislation, whilst it resists those that are direct and
violent, the most salutary laws become infected with
the contempt felt for useless laws, and are regarded
rather as obstacles to be surmounted than as the
deposit of the public welfare.
Moreover, if, as was said, our feelings are limited in
quantity, the greater respect men may have for things
outside the laws, the less will remain to them for the
laws themselves. From this principle the wise administrator
of the public happiness may draw some
useful consequences, the exposition of which would
lead me too far from my subject, which is to demonstrate
the uselessness of making a prison of the
State. A law with such an object is useless, because,
unless inaccessible rocks or an unnavigable sea
separate a country from all others, how will it be
possible to close all the points of its circumference
and keep guard over the guardians themselves? A
man who transports everything he has with him,
when he has done so cannot be punished. Such a
crime once committed can no longer be punished,
and to punish it beforehand would be to punish men’s
wills, not their actions, to exercise command over
their intention, the freest part of human nature, and
altogether independent of the control of human laws.
The punishment of an absent man in the property he
leaves behind him would ruin all international commerce,
to say nothing of the facility of collusion,
which would be unavoidable, except by a tyrannical
control of contracts. And his punishment on his return,
as a criminal, would prevent the reparation of the
evil done to society, by making all removals perpetual.
The very prohibition to leave a country augments
people’s desire to do so, and is a warning to foreigners
not to enter it.
What should we think of a government that has
no other means than fear for keeping men in a
country, to which they are naturally attached from
the earliest impressions of their infancy? The surest
way of keeping them in their country is to augment
the relative welfare of each of them. As every effort
should be employed to turn the balance of commerce
in our own favour, so it is the greatest interest of a
sovereign and a nation, that the sum of happiness,
compared with that of neighbouring nations, should
be greater at home than elsewhere. The pleasures
of luxury are not the principal elements in this
happiness, however much they may be a necessary
remedy to that inequality which increases with a
country’s progress, and a check upon the tendency of
wealth to accumulate in the hands of a single ruler.[69]
But commerce and the interchange of the pleasures
of luxury have this drawback, that however
many persons are engaged in their production, they
yet begin and end with a few, the great majority of
men only enjoying the smallest share of them, so
that the feeling of misery, which depends more on
comparison than on reality, is not prevented. But
the principal basis of this happiness I speak of is
personal security and liberty under the limitations of
the law; with these the pleasures of luxury favour
population, and without them they become the instrument
of tyranny. As the noblest wild beasts and
the freest birds remove to solitudes and inaccessible
forests, leaving the fertile and smiling plains to the
wiles of man, so men fly from pleasures themselves
when tyranny acts as their distributor.
It is, then, proved that the law which imprisons
subjects in their own country is useless and unjust.
The punishment, therefore, of suicide is equally so;
and consequently, although it is a fault punishable by
God, for He alone can punish after death, it is not a
crime in the eyes of men, for the punishment they
inflict, instead of falling on the criminal himself, falls on
his family. If anyone objects, that such a punishment
can nevertheless draw a man back from his determination
to kill himself, I reply, that he who calmly
renounces the advantages of life, who hates his existence
here below to such an extent as to prefer to it an
eternity of misery, is not likely to be moved by the
less efficacious and more remote consideration of his
children or his relations.
There are some crimes which, are at the same time
frequent in society and yet difficult to prove, as adultery,
pederasty, infanticide.
Adultery is a crime which, politically considered,
derives its force and direction from two causes,
namely, from the variable laws in force among mankind,
and from that strongest of all attractions which
draws one sex towards the other.[70]
Had I to address nations still destitute of the
light of religion, I would say that there is yet another
considerable difference between adultery and other
crimes. For it springs from the abuse of a constant
and universal human impulse, an impulse anterior to,
nay, the cause of the institution of society; whereas
other crimes, destructive of society, derive their
origin rather from momentary passions than from
a natural impulse. To anyone cognisant of history
and his kind, such an impulse will seem to be equivalent
in the same climate to a constant quantity;
and if this be so, those laws and customs which seek
to diminish the sum-total will be useless or dangerous,
because their effect will be to burthen one half of
humanity with its own needs and those of others;
but those laws, on the contrary, will be the wisest,
which following, so to speak, the gentle inclination of
the plain, divide the total amount, causing it to ramify
into so many equal and small portions, that aridity
or overflowing are equally prevented everywhere.
Conjugal fidelity is always proportioned to the number
and to the freedom of marriages. Where marriages
are governed by hereditary prejudices, or
bound or loosened by parental power, there the
chains are broken by secret intrigue, in despite of
ordinary morality, which, whilst conniving at the
causes of the offence, makes it its duty to declaim
against the results. But there is no need of such
reflections for the man who, living in the light of
true religion, has higher motives to correct the force
of natural effects. Such a crime is of so instantaneous
and secret commission, so concealed by the
very veil the laws have drawn round it (a veil necessary,
indeed, but fragile, and one that enhances,
instead of diminishing, the value of the desired object),
the occasions for it are so easy, and the consequences
so doubtful, that the legislator has it more
in his power to prevent than to punish it. As a
general rule, in every crime which by its nature must
most frequently go unpunished, the penalty attached
to it becomes an incentive. It is a quality of our
imagination, that difficulties, if they are not insurmountable
nor too difficult, relatively to the mental
energy of the particular person, excite the imagination
more vividly, and place the object desired in larger
perspective; for they serve as it were as so many
barriers to prevent an erratic and flighty fancy from
quitting hold of its object; and, while they compel
the imagination to consider the latter in all its bearings,
it attaches itself more closely to the pleasant
side, to which our mind most naturally inclines, than
to the painful side, which it places at a distance.
Pederasty, so severely punished by the laws, and
so readily subjected to the tortures that triumph over
innocence, is founded less on the necessities of man,
when living in a state of isolation and freedom, than
on his passions when living in a state of society and
slavery. It derives its force not so much from satiety of
pleasure as from the system of education now in vogue,
which, beginning by making men useless to themselves
in order to make them useful to others, causes, by its
too strict seclusion, a waste of all vigorous development,
and accelerates the approach of old age.
Infanticide equally is the result of the unavoidable
dilemma in which a woman is placed who from
weakness or by violence has fallen. Finding herself
placed between the alternative of infamy on the one
side, and the death of a being insentient of its pains
on the other, how can she fail to prefer the latter to
the infallible misery awaiting both herself and her
unhappy offspring? The best way to prevent this
crime would be to give efficient legal protection to
weakness against tyranny, which exaggerates those
vices that cannot be hidden by the cloak of virtue.
I do not pretend to diminish the just wrath these
crimes deserve; but, in indicating their sources, I
think myself justified in drawing one general conclusion,
and that is, that no punishment for a crime can
be called exactly just—that is, necessary—so long as
the law has not adopted the best possible means, in
the circumstances of a country, to prevent the crimes
it punishes.
The reader of this treatise will perceive that I have
omitted all reference to a certain class of crime,
which has deluged Europe with human blood; a
crime which raised those fatal piles, where living
human bodies served as food for the flames, and
where the blind multitude sought a pleasant spectacle
and a sweet harmony from the low dull groans,
emitted by wretched sufferers from volumes of black
smoke, the smoke of human limbs, whilst their bones
and still palpitating entrails were scorched and consumed
by the flames. But reasonable men will see
that the place, the age, and the subject suffer me not
to inquire into the nature of such a crime. It would
be too long and remote from my subject to show,
how a perfect uniformity of thought ought, contrary
to the practice of many countries, to be a necessity
in a State; how opinions, which only differ by the
most subtle and imperceptible degrees, and are altogether
beyond the reach of human intelligence, can
yet convulse society, when one of them is not legally
authorised in preference to the others; and how the
nature of opinions is such, that, whilst some become
clearer by virtue of their conflict and opposition,
(those that are true floating and surviving, but those
that are false sinking to oblivion,) others again, with
no inherent self-support, require to be clothed with
authority and power. Too long would it be to prove,
that howsoever hateful may seem the government of
force over human minds, with no other triumphs to
boast of but dissimulation and debasement, and howsoever
contrary it may seem to the spirit of gentleness
and fraternity, commanded alike by reason and
the authority we most venerate, it is yet necessary
and indispensable. All this should be taken as
clearly proved and conformable to the true interests
of humanity, if there be anyone who, with recognised
authority, acts accordingly. I speak only of crimes
that spring from the nature of humanity and the
social compact; not of sins, of which even the temporal
punishments should be regulated by other principles
than those of a narrow philosophy.
False ideas of utility entertained by legislators are
one source of errors and injustice. It is a false idea
of utility which thinks more of the inconvenience of
individuals than of the general inconvenience; which
tyrannises over men’s feelings, instead of arousing them
into action; which says to Reason, ‘Be thou subject.’
It is a false idea of utility which sacrifices a thousand
real advantages for one imaginary or trifling drawback;
which would deprive men of the use of fire because it
burns or of water because it drowns; and whose only
remedy for evils is the entire destruction of their
causes. Of such a kind are laws prohibiting the wearing
of arms, for they only disarm those who are not
inclined nor resolved to commit crimes, whilst those
who have the courage to violate the most sacred laws
of humanity, the most important in the law-code, are
little likely to be induced to respect those lesser and
purely arbitrary laws, which are easier to contravene
with impunity; and the strict observance of which
would imply the destruction of all personal liberty,
(that liberty dearest to the enlightened legislator and to
men generally,) subjecting the innocent to vexations
which only the guilty deserve. These laws, whilst
they make still worse the position of the assailed,
improve that of their assailants; they increase rather
than diminish the number of homicides, owing to the
greater confidence with which an unarmed man may
be attacked than an armed one. They are not so much
preventive of crimes as fearful of them, due as they
are to the excitement roused by particular facts, not
to any reasoned consideration of the advantages or
disadvantages of a general decree. Again, it is a
false idea of utility, which would seek to impart to a
multitude of intelligent beings the same symmetry
and order that brute and inanimate matter admits of;
which neglects present motives, the only constantly
powerful influences with the generality of men, to
give force to remote and future ones, the impression
of which is very brief and feeble, unless a force of
imagination beyond what is usual makes up, by its
magnifying power, for the object’s remoteness. Lastly,
it is a false idea of utility, which, sacrificing the thing
to the name, distinguishes the public good from that
of every individual member of the public. There is
this difference between the state of society and the
state of nature, that in the latter a savage only commits
injuries against others with a view to benefit
himself, whilst in the former state men are sometimes
moved by bad laws to injure others without any corresponding
benefit to themselves. The tyrant casts
fear and dread into the minds of his slaves, but they
return by repercussion with all the greater force to
torment his own breast. The more confined fear is
in its range, so much the less dangerous is it to him
who makes it the instrument of his happiness; but
the more public it is and the larger the number of
people it agitates, so much the more likely is it that
there will be some rash, some desperate, or some
clever and bold man who will try to make use of
others for his own purpose, by raising in them hopes,
that are all the more pleasant and seductive as the
risk incurred in them is spread over a greater number,
and as the value attached by the wretched to their
existence diminishes in proportion to their misery.
This is the reason why offences ever give rise to fresh
ones: that hatred is a feeling much more durable
than love, inasmuch as it derives its force from the
very cause that weakens the latter, namely, from the
continuance of the acts that produce it.
Such fatal and legalised iniquities as have been
referred to have been approved of by even the wisest
men and practised by even the freest republics, owing
to their having regarded society rather as an aggregate
of families than as one of individuals. Suppose there
to be 100,000 individuals, or 20,000 families, of five
persons each, including its representative head: if the
association is constituted by families, it will consist of
20,000 men and 80,000 slaves; if it be an association
of individuals, it will consist of 100,000 citizens, and
not a single slave. In the first case there will be a
republic, formed of 20,000 little sovereignties; in the
second the republican spirit will breathe, not only in
the market-places and meetings of the people, but
also within the domestic walls, wherein lies so great a
part of human happiness or misery. In the first case,
also, as laws and customs are the result of the habitual
sentiments of the members of the republic—that is,
of the heads of families—the monarchical spirit will
gradually introduce itself, and its effects will only be
checked by the conflicting interests of individuals, not
by a feeling that breathes liberty and equality. Family
spirit is a spirit of detail and confined to facts
of trifling importance. But the spirit which regulates
communities is master of general principles, overlooks
the totality of facts, and combines them into
kinds and classes, of importance to the welfare of the
greater number. In the community of families sons
remain in the power of the head of the family so
long as he lives, and are obliged to look forward to
his death for an existence dependent on the laws
alone. Accustomed to submission and fear in the
freshest and most vigorous time of life, when their
feelings are less modified by that timidity, arising
from experience, which men call moderation, how
shall they withstand those obstacles in the way of
virtue which vice ever opposes, in that feeble and
failing period of life when despair of living to see
the fruit of their labours hinders them from making
vigorous changes?
When the community is one of individuals, the
subordination that prevails in the family prevails by
agreement, not by compulsion; and the sons, as soon
as their age withdraws them from their state of natural
dependence, arising from their feebleness and
their need of education and protection, become free
members of the domestic commonwealth, subjecting
themselves to its head, in order to share in its advantages,
as free men do by society at large. In the
other condition the sons—that is, the largest and
most useful part of a nation—are placed altogether
at the mercy of their fathers; but in this one there
is no enjoined connection between them, beyond that
sacred and inviolable one of the natural ministration
of necessary aid, and that of gratitude for benefits
received, which is less often destroyed by the native
wickedness of the human heart than by a law-ordained
and ill-conceived state of subjection.
Such contradictions between the laws of a family
and the fundamental laws of a State are a fertile
source of other contradictions between public and
private morality, giving rise consequently to a perpetual
conflict in every individual mind. For whilst
private morality inspires fear and subjection, public
morality teaches courage and freedom; whilst the
former inculcates the restriction of well-doing to a
small number of persons indiscriminately, the latter
inculcates its extension to all classes of men; and
whilst the one enjoins the constant sacrifice of self to
a vain idol, called ‘the good of the family’ (which is
frequently not the good of any single member that composes
it), the other teaches men to benefit themselves,
provided they break not the laws, and incites them,
by the reward of enthusiasm, which is the precursor of
their action, to sacrifice themselves to the good of their
country. Such contradictions make men scorn to
follow virtue, which they find so complicated and
confused, and at that distance from them, which
objects, both moral and physical, derive from their
obscurity. How often it happens that a man, in
reflecting on his past actions, is astonished at finding
himself dishonest. The larger society grows, the
smaller fraction of the whole does each member of
it become, and the more is the feeling of the commonwealth
diminished, unless care be taken by the
laws to reinforce it. Societies, like human bodies,
have their circumscribed limits, extension beyond
which involves inevitably a disturbance of their
economy. The size of a State ought apparently to
vary inversely with the sensibility of its component
parts; otherwise, if both increase together, good laws
will find, in the very benefit they have effected, an
obstacle to the prevention of crimes. Too large a
republic can only save itself from despotism by a
process of subdivision, and a union of the parts into
so many federative republics. But how effect this,
save by a despotic dictator with the courage of Sylla
and as much genius for construction as he had for
destruction? If such a man be ambitious, the glory
of all the ages awaits him; and if he be a philosopher,
the blessings of his fellow-citizens will console
him for the loss of his authority, even should he not
become indifferent to their ingratitude. In proportion
as the feelings which unite us to our own nation
are weakened, do those for the objects immediately
around us gain in strength; and it is for this reason
that under the severest despotism the strongest friendships
are to be found, and that the family virtues,
ever of an exalted character, are either the most
common or the only ones. It is evident, therefore,
how limited have been the views of the great majority
of legislators.
There was a time when nearly all penalties were
pecuniary. Men’s crimes were the prince’s patrimony;
attempts against the public safety were an object of
gain, and he whose function it was to defend it found
his interest in seeing it assailed. The object of
punishment was then a suit between the treasury,
which exacted the penalty, and the criminal: it was
a civil business, a private rather than a public dispute,
which conferred upon the treasury other rights than
those conferred upon it by the calls of the public
defence, whilst it inflicted upon the offender other
grievances than those he had incurred by the necessity
of example. The judge was, therefore, an advocate
for the treasury rather than an impartial investigator
of the truth, an agent for the Chancellor of the
Exchequer rather than the protector and minister of
the laws. But as in this system to confess a fault
was the same thing as to confess oneself a debtor to
the treasury, that being the object of the criminal
procedure in those days, so the confession of a crime,
and a confession so managed as to favour and not to
hurt fiscal interests, became and still remains (effects
always outlasting their causes so long) the centre
point of all criminal procedure. Without such confession
a criminal convicted by indubitable proofs
will incur a penalty less than the one legally attached
to his crime; and without it he will escape
torture for other crimes of the same sort which he
may have committed. With it, on the other hand,
the judge becomes master of a criminal’s person, to
lacerate him by method and formality, in order to
get from him as from so much stock all the profit he
can. Given the fact of the crime as proved, confession
affords a convincing proof; and, to make this
proof still less open to doubt, it is forcibly exacted
by the agonies and despair of physical pain; whilst
at the same time a confession that is extra-judicial,
that is tendered calmly and indifferently, and without
the overpowering fears of a trial by torture, is held insufficient
for a verdict of guilt. Inquiries and proofs,
which throw light upon the fact, but which weaken the
claims of the treasury, are excluded; nor is it out of
consideration for his wretchedness and weakness that
a criminal is sometimes spared from torture, but out of
regard for the claims which this entity, now mythical
and inconceivable, might lose. The judge becomes
the enemy of the accused, who stands in chains before
him, the prey of misery, of torments, and the most
terrible future; he does not seek to find the truth of
a fact, but to find the crime in the prisoner, trying to
entrap him, and thinking it to the loss of his own
credit if he fail to do so, and to the detriment of
that infallibility which men pretend to possess about
everything. The evidence that justifies a man’s
imprisonment rests with the judge; in order that a
man may prove himself innocent, he must first be
declared guilty: that is called an offensive prosecution;
and such are criminal proceedings in nearly
every part of enlightened Europe, in the eighteenth
century. The real prosecution, the informative one—that
is, the indifferent inquiry into a fact, such as
reason enjoins, such as military codes employ, and
such as is used even by Asiatic despotism in trivial
and unimportant cases—is of very scant use in
the tribunals of Europe. What a complex maze of
strange absurdities, doubtless incredible to a more
fortunate posterity! Only the philosophers of that
time will read in the nature of man the possible
actuality of such a system as now exists.
It is better to prevent crimes than to punish them.
This is the chief aim of every good system of legislation,
which is the art of leading men to the greatest
possible happiness or to the least possible misery,
according to calculation of all the goods and evils of
life. But the means hitherto employed for this end
are for the most part false and contrary to the end
proposed. It is impossible to reduce the turbulent
activity of men to a geometrical harmony without
any irregularity or confusion. As the constant and
most simple laws of nature do not prevent aberrations
in the movements of the planets, so, in the infinite
and contradictory attractions of pleasure and
pain, disturbances and disorder cannot be prevented
by human laws. Yet this is the chimera that narrow-minded
men pursue, when they have power in their
hands. To prohibit a number of indifferent acts is
not to prevent the crimes that may arise from them,
but it is to create new ones from them; it is to give
capricious definitions of virtue and vice which are
proclaimed as eternal and immutable in their nature.
To what should we be reduced if everything had to
be forbidden us which might tempt us to a crime?
It would be necessary to deprive a man of the use
of his senses. For one motive that drives men to
commit a real crime there are a thousand that drive
them to the commission of those indifferent acts
which are called crimes by bad laws; and if the likelihood
of crimes is proportioned to the number of
motives to commit them, an increase of the field of
crimes is an increase of the likelihood of their commission.
The majority of laws are nothing but
privileges, or a tribute paid by all to the convenience
of some few.
Would you prevent crimes, then cause the laws
to be clear and simple, bring the whole force of a
nation to bear on their defence, and suffer no part of
it to be busied in overthrowing them. Make the laws
to favour not so much classes of men as men themselves.
Cause men to fear the laws and the laws
alone. Salutary is the fear of the law, but fatal and
fertile in crime is the fear of one man of another.
Men as slaves are more sensual, more immoral, more
cruel than free men; and, whilst the latter give their
minds to the sciences or to the interests of their
country, setting great objects before them as their
model, the former, contented with the passing day,
seek in the excitement of libertinage a distraction
from the nothingness of their existence, and, accustomed
to an uncertainty of result in everything, they
look upon the result of their crimes as uncertain too,
and so decide in favour of the passion that tempts
them. If uncertainty of the laws affects a nation,
rendered indolent by its climate, its indolence and
stupidity is thereby maintained and increased; if
it affects a nation, which though fond of pleasure is
also full of energy, it wastes that energy in a number
of petty cabals and intrigues, which spread distrust in
every heart, and make treachery and dissimulation
the foundation of prudence; if, again, it affects a
courageous and brave nation, the uncertainty is
ultimately destroyed, after many oscillations from
liberty to servitude, and from servitude back again
to liberty.
Would you prevent crimes, then see that enlightenment
accompanies liberty. The evils that flow from
knowledge are in inverse ratio to its diffusion; the benefits
directly proportioned to it. A bold impostor, who is
never a commonplace man, is adored by an ignorant
people, despised by an enlightened one. Knowledge,
by facilitating comparisons between objects and multiplying
men’s points of view, brings many different
notions into contrast, causing them to modify one
another, all the more easily as the same views and
the same difficulties are observed in others. In the
face of a widely diffused national enlightenment the
calumnies of ignorance are silent, and authority, disarmed
of pretexts for its manifestation, trembles;
whilst the rigorous force of the laws remains unshaken,
no one of education having any dislike to the
clear and useful public compacts which secure the
common safety, when he compares the trifling and
useless liberty sacrificed by himself with the sum-total
of all the liberties sacrificed by others, who
without the laws might have been hostile to himself.
Whoever has a sensitive soul, when he contemplates
a code of well-made laws, and finds that he has only
lost the pernicious liberty of injuring others, will feel
himself constrained to bless the throne and the
monarch that sits upon it.
It is not true that the sciences have always been
injurious to mankind; when they were so, it was an
inevitable evil. The multiplication of the human
race over the face of the earth introduced war, the
ruder arts, and the first laws, mere temporary agreements
which perished with the necessity that gave
rise to them. This was mankind’s primitive philosophy,
the few elements of which were just, because
the indolence and slight wisdom of their framers preserved
them from error. But with the multiplication
of men there went ever a multiplication of their
wants. Stronger and more lasting impressions were,
therefore, needed, in order to turn them back from
repeated lapses to that primitive state of disunion
which each return to it rendered worse. Those primitive
delusions, therefore, which peopled the earth with
false divinities and created an invisible universe that
governed our own, conferred a great benefit—I mean
a great political benefit—upon humanity. Those
men were benefactors of their kind, who dared to
deceive them and drag them, docile and ignorant, to
worship at the altars. By presenting to them objects
that lay beyond the scope of sense and fled from
their grasp the nearer they seemed to approach them—never
despised, because never well understood—they
concentrated their divided passions upon a single object
of supreme interest to them. These were the
first steps of all the nations that formed themselves
out of savage tribes; this was the epoch when larger
communities were formed, and such was their necessary
and perhaps their only bond. I say nothing of that
chosen people of God, for whom the most extraordinary
miracles and the most signal favours were a
substitute for human policy. But as it is the quality
of error to fall into infinite subdivisions, so the sciences
that grew out of it made of mankind a blind fanatical
multitude, which, shut up within a close labyrinth,
collides together in such confusion, that some sensitive
and philosophical minds have regretted to this
day the ancient savage state. That is the first epoch
in which the sciences or rather opinions are injurious.
The second epoch of history consists in the hard
and terrible transition from errors to truth, from the
darkness of ignorance to the light. The great clash
between the errors which are serviceable to a few
men of power and the truths which are serviceable
to the weak and the many, and the contact and fermentation
of the passions at such a period aroused,
are a source of infinite evils to unhappy humanity.
Whoever ponders on the different histories of the
world, which after certain intervals of time are so
much alike in their principal episodes, will therein
frequently observe the sacrifice of a whole generation
to the welfare of succeeding ones, in the painful but
necessary transition from the darkness of ignorance
to the light of philosophy, and from despotism to
freedom, which result from the sacrifice. But when
truth, whose progress at first is slow and afterwards
rapid (after men’s minds have calmed down and the
fire is quenched that purged a nation of the evils it
suffered), sits as the companion of kings upon the
throne, and is reverenced and worshipped in the
parliaments of free governments, who will ever dare
assert that the light which enlightens the people is
more injurious than darkness, and that acknowledging
the true and simple relations of things is pernicious
to mankind?
If blind ignorance is less pernicious than confused
half-knowledge, since the latter adds to the evils of
ignorance those of error, which is unavoidable in a
narrow view of the limits of truth, the most precious
gift that a sovereign can make to himself or to his
people is an enlightened man as the trustee and
guardian of the sacred laws. Accustomed to see the
truth and not to fear it; independent for the most
part of the demands of reputation, which are never
completely satisfied and put most men’s virtue to a
trial; used to consider humanity from higher points
of view; such a man regards his own nation as a
family of men and of brothers, and the distance between
the nobles and the people seems to him so
much the less as he has before his mind the larger
total of the whole human species. Philosophers acquire
wants and interests unknown to the generality
of men, but that one above all others, of not belying
in public the principles they have taught in obscurity,
and they gain the habit of loving the truth for its own
sake. A selection of such men makes the happiness
of a people, but a happiness which is only transitory,
unless good laws so increase their number as
to lessen the probability, always considerable, of an
unfortunate choice.
Another way of preventing crimes is to interest the
magistrates who carry out the laws in seeking rather
to preserve than to corrupt them. The greater the
number of men who compose the magistracy, the
less danger will there be of their exercising any
undue power over the laws; for venality is more
difficult among men who are under the close observation
of one another, and their inducement to
increase their individual authority diminishes in proportion
to the smallness of the share of it that can
fall to each of them, especially when they compare
it with the risk of the attempt. If the sovereign
accustoms his subjects, by formalities and pomp, by
severe edicts, and by refusal to hear the grievances,
whether just or unjust, of the man who thinks himself
oppressed, to fear rather the magistrates than the
laws, it will be more to the profit of the magistrates
than to the gain of private and public security.
Another way to prevent crimes is to reward
virtue. On this head I notice a general silence in
the laws of all nations to this day. If prizes offered
by academies to the discoverers of useful truths have
caused the multiplication of knowledge and of good
books, why should not virtuous actions also be multiplied,
by prizes distributed from the munificence of
the sovereign? The money of honour ever remains
unexhausted and fruitful in the hands of the legislator
who wisely distributes it.
Lastly, the surest but most difficult means of preventing
crimes is to improve education—a subject
too vast for present discussion, and lying beyond the
limits of my treatise; a subject, I will also say, too
intimately connected with the nature of government
for it ever to be aught but a barren field, only cultivated
here and there by a few philosophers, down to the
remotest ages of public prosperity. A great man,
who enlightens the humanity that persecutes him,
has shown in detail the chief educational maxims of
real utility to mankind; namely, that it consists less
in a barren multiplicity of subjects than in their
choice selection; in substituting originals for copies
in the moral as in the physical phenomena presented
by chance or intention to the fresh minds of youth;
in inclining them to virtue by the easy path of feeling;
and in deterring them from evil by the sure
path of necessity and disadvantage, not by the uncertain
method of command, which never obtains
more than a simulated and transitory obedience.
From all that has gone before a general theorem
may be deduced, of great utility, though little comformable
to custom, that common lawgiver of nations.
The theorem is this: ‘In order that every punishment
may not be an act of violence, committed by one
man or by many against a single individual, it ought
to be above all things public, speedy, necessary, the
least possible in the given circumstances, proportioned
to its crime, dictated by the laws.’
LONDON: PRINTED BY
SPOTTISWOODE AND CO., NEW-STREET SQUARE
AND PARLIAMENT STREET
