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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[193] 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.
THREE: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[136] nature as exclude the possibility of a mans 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[137] laws are not a science! It is a most useful law that everyone shall be judged by his equals, because where a citizens 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 ones 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 opinionwhich is, perhaps, the only bond of society there ismay 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[138] require similar regulations. I should have said nothing at all, had it been necessary for me to say everything.

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THREE: 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.

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THREE:To combine the maximum of perspicuity with the maximum of fidelity to the original has been the cardinal principle observed in the translation. But it would, of course, have been no less impossible than contrary to the spirit of the original to have attempted to render perfectly comprehensible what the author purposely wrapped in obscurity. A translation can but follow the lights and shades of the surface it reflects, rendering clear what is clear in the original, and opaque what is opaque.

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FORE:Lastly, the surest but most difficult means of preventing crimes is to improve educationa 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;[251] 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.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 mens 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[249] 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.

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FORE: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[155] 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.

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FORE:[19]

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THREE:It was this system that Beccarias little work[3] destroyed, and had that been its only result, it would still deserve to live in mens memories for its historical interest alone. For upon the legislation of that time, and especially upon that of Italy, this pamphlet on criminal law broke like a ray of sunlight on a dungeon floor, making even blacker that which was black before by the very brilliancy which it shed upon it. To Beccaria primarily, though not of course solely, belongs the glory of having expelled the use of torture from every legal tribunal throughout Christendom.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[224] 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.

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THREE:One thing that might be done, which would also serve at the same time to keep a prisoners family from want, the main source of crime, would be the formation of a Prisoners Fund, for his and their benefit. For this there is a precedent in a quite recent Act. For the Act, which abolished the forfeiture of a felons property, enabled the Crown to appoint an administrator of it, for the benefit of the persons injured by the crime and the felons family, the property itself and its income reverting ultimately to the convict or to his representatives. There could, however, be no objection in justice to the forfeiture of a proportionate part of every felons property, such forfeiture to be dedicated to the formation of a fund, out of which assistance should be given, both to the families of prisoners during their custody and to the prisoners themselves on their discharge.[62] Such a fund might be still further increased by the substitution of a lien on a mans wages or income for many minor offences now punished, but not prevented, by imprisonment.
TWO: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? 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,[145] 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.
TWO:In such a zigzag path has our penal legislation been feeling, and is still feeling, its way, with evident misgiving of that principle of repression, as false as it is old, that an increase of crime can only be met by an increase of punishment.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[191] 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.
THREE:

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Banishment, it would seem, should be employed[181] 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.For the same reason it is of little avail to call in question, as Beccaria does, the right of society to inflict death as a punishment. There may be a distinction between the right of society and its might, but it is one of little comfort to the man who incurs its resentment. A man in a dungeon does better to amuse himself with spiders and cobwebs than with reflections on the encroachment of the law upon his liberty, or with theories about the rights of government. Whenever society has ceased to exercise any of its powers against individuals, it has not been from the acceptance of any new doctrine as to its rights, but from more enlightened views as to its real interests, and a cultivated dislike of cruelty and oppression. I lead a tranquil and solitary life, if a select company of friends in which the heart and mind are in continual movement can be called solitude. This is my consolation, and prevents me feeling in my own country as if I were in exile.

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