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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.

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An error, not less common than it is contrary to the object of societythat is, to the consciousness of personal securityis 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[133] report, in a mans flight, in a non-judicial confession, or in the confession of an accomplice; in a mans 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.That these causes do to a great extent defeat the preventive effect of our penal laws, is proved by the tale of our criminal statistics, which reveal the fact that most of our crime is committed by those who[100] have once been punished, and that of general crime about 77 per cent. is committed with impunity. But if so large a proportion of crimes pass unpunished altogether, it is evident that society depends much less for its general security upon its punishments than is commonly supposed. Might it not, therefore, still further relax such punishments, which are really a severe tax on the great majority of honest people for the repression of the very small proportion who constitute the dishonest part of the community?[58]
TWO: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[169] thunderbolt for the destruction of a fierce lion that faces round at the shot of a gun. But in proportion as mens 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. 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 manthat is, every man with a certain connection between his ideas and with feelings like those of other menis 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.

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THREE: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.

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FORE:If we consult the human heart we shall therein discover the fundamental principles of the real right of the sovereign to punish crimes.

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FORE:It is remarkable that a book which has done more for law reform than any other before or since should have been written by a man who was not a lawyer by profession, who was totally unversed in legal practice, and who was only twenty-six when he attacked a system of law which had on its side all authority, living and dead. Hume was not twenty-seven when[4] he published his Treatise on Human Nature, nor was Berkeley more than twenty-six when he published his Principles of Human Knowledge. The similar precocity displayed by Beccaria is suggestive, therefore, of the inquiry, how far the greatest revolutions in the thoughts or customs of the world have been due to writers under thirty years of age.This fulmination reached Milan on January 15, 1765, and on the 21st the Risposta, or reply, was[17] ready for publication.[7] This defence was the work of his friends, the Verris, and was published, like the original, anonymously; as it was written in the first person throughout, it was generally at the time and even till lately ascribed to the same author as the original, but the fact is now established beyond doubt that the real authors were Pietro and his brother. The writers wisely refrained from the use of retaliatory language, confining themselves in their defence solely to charges of irreligion and sedition, responding to six which accused Beccaria of the latter, and to twenty-three which declared him guilty of the former.

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THREE: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.
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TWO: The cries of sages and philosophers are as the cries of the innocent man on the wheel, where they have never prevented, nor will ever prevent him from expiring, with his eyes upturned to heaven, which will perhaps some day stir up enthusiasm, or religious madness, or some other avenging folly, to accomplish all that their wisdom has failed to do. It is never the oration of the philosopher which disarms the powerful ruler; it is something else, which the combination of chance events brings about. Meanwhile we must not seek to force it from him, but must entreat humbly for such good as he can grant us, that is which he can grant us without injury to himself. THREE: Thefts without violence should be punished by fine. He who enriches himself at anothers 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[214] alone can be called just, namely, the temporary servitude of a mans 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. FORE:
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FORE:Since, therefore, there is more to fear from a punished than from an unpunished criminal, there is the less reason to regret the general impunity of crime. There is indeed a large class of crimes for the prevention of which more would be done, by leaving them to their natural consequences, and to the strong power against them which the general interests and moral feelings of mankind will always enforce, than by actual punishment. It is particularly crimes of dishonesty which are best punished by the mere fact of their discovery. By the Norwegian law if an offender holds any official place he is punished, not by fine or imprisonment, but by the loss of his office and all the privileges connected with it.[59] And if we imagine a country without any legal penalty at all for theft or dishonesty, thieves and their tribe would soon find their proper punishment, by that process of social shifting, which would drive them to the most deleterious or dangerous occupations of life even more effectually than it so drives them at present. The less dependence is placed on the penal sanctions of crime, the stronger do the moral restraints from it become.Laws should only be considered as a means of conducting mankind to the greatest happiness.
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FORE: Injuries that are personal and affect a mans honourthat is, the fair share of favour that he has a right to expect from othersshould be punished with disgrace.CHAPTER XX. CERTAINTY OF PUNISHMENTSPARDONS.
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FORE:The End 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.
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Some crimes are injuries to a mans person, others to his property, and the former should certainly be punished by corporal punishments.So signal a success in France was a sufficient guarantee of success elsewhere. A knowledge of the book must have speedily crossed the Channel, for Blackstone quoted it the very year after its publication. It was first translated into English in 1768, together with Voltaires commentary; but just as Morellets translation professed to have been published at Philadelphia, so the English translator kept his name a secret. The Economical Society of Berne, which was accustomed to bestow a gold medal on the writer of the best treatise on any given subject, violated its own rules in favour of the anonymous writer of the Delitti, inviting him to disclose his name, and to accept the gold medal as a sign of esteem due to a citizen who had dared to raise his voice in favour of humanity against the most deeply engrained prejudices.CHAPTER VIII. WITNESSES.The very success of Beccarias work has so accustomed us to its result that we are apt to regard it, as men regard a splendid cathedral in their native town, with very little recognition of its claims to admiration. The work is there, they see it, they live under its shadow; they are even ready to boast of it; but[30] what to them is the toil and risk of its builders, or the care and thought of its architects? It may be said that this indifference is the very consummation Beccaria would most have desired, as it is the most signal proof of the success of his labour. So signal, indeed, has been that success, that already the atrocities which men in those days accepted as among the unalterable conditions of their existence, or resigned themselves to as the necessary safeguards of society, have become so repulsive to the worlds memory, that men have agreed to hide them from their historical consciousness by seldom reading, writing, or speaking of their existence. And this is surely a fact to be remembered with hopefulness, when we hear an evil like war with all its attendant atrocities, defended nowadays by precisely the same arguments which little more than a hundred years ago were urged on behalf of torture, but which have proved nevertheless insufficient to keep it in existence.
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