Cesare Beccaria applied the an Enlightenment analysis to crime
and punishment, and to the ugliness of the traditional legal and
penal system.
If we look into history we shall find that laws, which are, or
ought to be, conventions between men in a state of freedom, have
been, for the most part the work of the passions of a few, or
the consequences of a fortuitous or temporary necessity; not dictated
by a cool examiner of human nature, who knew how to collect in
one point the actions of a multitude, and had this only end in
view, the greatest happiness of the greatest number. Observe that by justice I understand nothing more than
that bond which is necessary to keep the interest of individuals
united, without which men would return to their original state
of barbarity. All punishments which exceed the necessity of preserving
this bond are in their nature unjust.
The end of punishment, therefore, is no other than to prevent
the criminal from doing further injury to society, and to prevent
others from committing the like offence. Such punishments, therefore,
and such a mode of inflicting them, ought to be chosen, as will
make the strongest and most lasting impressions on the minds of
others, with the least torment to the body of the criminal.
The torture of a criminal during the course of his trial is a
cruelty consecrated by custom in most nations. It is used with
an intent either to make him confess his crime, or to explain
some contradiction into which he had been led during his examination,
or discover his accomplices, or for some kind of metaphysical
and incomprehensible purgation of infamy, or, finally, in order
to discover other crimes of which he is not accused, but of which
he may be guilty.
No man can be judged a criminal until he be found guilty; nor
can society take from him the public protection until it have
been proved that he has violated the conditions on which it was
granted. What right, then, but that of power, can authorise the
punishment of a citizen so long as there remains any doubt of
his guilt? This dilemma is frequent. Either he is guilty, or not
guilty. If guilty, he should only suffer the punishment ordained
by the laws, and torture becomés useless, as his confession
is unnecessary. If he be not guilty, you torture the innocent;
for, in the eye of the law, every man is innocent whose crime
has not been proved
Crimes are more effectually prevented by the certainty than
the severity of punishment.
In proportion as punishments become more cruel, the minds of men,
as a fluid rises to the same height with that which surrounds
it, grow hardened and insensible; and the force of the passions
still continuingg in the space of an hundred years the wheel terrifies no more than formerly the prison. That a
punishment may produce the effect required, it is sufficient that
the evil it occasions should exceed the good expected from
the crime, including in the calculation the certainty of the punishment,
and the privation of the expected advantage. All severity beyond
this is superfluous, and therefore tyrannical.
The punishment of death is pernicious to society, from the example
of barbarity it affords. If the passions, or the necessity of
war, have taught men to shed the blood of their fellow creatures,
the laws, which are intended to moderate the ferocity of mankind,
should not increase it by examples of barbarity, the more horrible
as this punishment is usually attended with formal pageantry.
Is it not absurd, that the laws, which detest and punish homicide,
should, in order to prevent murder, publicly commit murder themselves?
It is better to prevent crimes than to punish them. This is the
fundamental principle of good legislation, which is the art of
conducting men to the maximum of happiness, and to the minimum of misery, if we may apply this mathematical expression
to the good and evil of life....
Would you prevent crimes? Let the laws be clear and simple, let
the entire force of the nation be united in their defence, let
them be intended rather to favour every individual than any particular
classes of men; let the laws be feared, and the laws only. The
fear of the laws is salutary, but the fear of men is a fruitful
and fatal source of crimes.
Source: Erom Cesare Beccaria, An Essay on Crimes and Punishments, E.
D. Ingraham, trans. (Philadelphia: H. Nicklin, 1819),pp.xii,1819,47,5960,9394,104-105,148149.
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(c)Paul Halsall Aug 1997
