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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[229] 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[230] side, to which our mind most naturally inclines, than to the painful side, which it places at a distance.

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[153]In methods of trial the use of torture is contrary to sound reason. Humanity cries out against the practice and insists on its abolition.CHAPTER II. THE GENERAL INFLUENCE OF BECCARIA ON LEGISLATION.
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THREE:CHAPTER VIII. WITNESSES.
THREE:
ONE: 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:
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BY: ADMIN | 05.01.2013

TWO:

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BY: ADMIN | 05.01.2013

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THREE: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 sonsthat is, the largest and most useful part of a nationare 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.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.

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THREE: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[161] 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.

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THREE: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.[153]

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THREE:

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FORE:CHAPTER XXXVIII. FALSE IDEAS OF UTILITY.Capital punishment being less general in the world now than torture was when Beccaria wrote, it seems to be a fair logical inference that it is already far advanced towards its total disappearance. For the same argument which Voltaire applied in the case of torture cannot fail sooner or later to be applied to capital punishment. If, he says, there were but one nation in the world which had abolished the use of torture; and if in that nation crimes were no more frequent than in others, its example would be surely sufficient for the rest of the world. England alone might instruct all other nations in this particular; but England is not the only nation. Torture has been abolished in other countries, and with success; the question, therefore, is decided. If in this argument we read capital punishment instead of torture, murders instead of crimes, and Portugal instead of England, we shall best appreciate that which is after all the strongest argument against capital punishment, namely, that it has been proved unnecessary for its professed object in so many countries that it might safely be relinquished in all.
FORE:The treatise Dei Delitti, instead of throwing any light on the subject of crimes, or on the manner in which they should be punished, tends to establish a system of the most dangerous and novel ideas, which, if adopted, would go so far as to overturn laws received hitherto by the greater part of all civilised nations.To examine and distinguish all the different sorts[120] 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.
FORE:
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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[232] 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.
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