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论犯罪与刑罚
Of Crimes and Punishments
Cesare Bonesana, Marchese Beccaria, 1738-1794
Originally published in Italian in 1764
Dei delitti e delle pene. English: An essay on crimes and punishments.
Written by the Marquis Beccaria, of Milan. With a commentary attributed to Monsieur de Voltaire. Philadelphia: Printed and sold by R. Bell, next door to St. Paul's Church, in Third-Street. MDCCLXXVIII. [1778]
Translated from the French by Edward D. Ingraham. Second American edition. Philadelphia (No. 175, Chesnut St.): Published by Philip H. Nicklin: A. Walker, printer, 24, Arch St., 1819.
Table of Contents
Introduction.
Chapter 01 Of the Origin of Punishments. Chapter 02 Of the right to punish.
Chapter 03 Consequences of the foregoing Principles. Chapter 04 Of the Interpretation of Laws. Chapter 05 Of the Obscurity of Laws.
Chapter 06 Of the Proportion between Crimes and Punishments.
Chapter 07 Of estimating the Degree of Crimes. Chapter 08 Of the Division of Crimes. Chapter 09 Of Honour. Chapter 10 Of Duelling.
Chapter 11 Of crimes which disturb the Public Tranquillity. Chapter 12 Of the Intent of Punishments. Chapter 13 Of the Credibility of Witnesses.
Chapter 14 Of Evidence and the Proofs of a Crime, and of the Form of Judgment.
Chapter 15 Of secret Accusations. Chapter 16 Of Torture.
Chapter 17 Of pecuniary Punishments. Chapter 18 Of Oaths.
Chapter 19 Of the Advantage of immediate Punishment. Chapter 20 Of Acts of violence.
Chapter 21 Of the Punishment of the Nobles. Chapter 22 Of Robbery.
Chapter 23 Of Infamy considered as a Punishment. Chapter 24 Of Idleness.
Chapter 25 Of Banishment and Confiscation. Chapter 26 Of the Spirit of Family in States. Chapter 27 Of the Mildness of Punishments. Chapter 28 Of the Punishment of Death. Chapter 29 Of imprisonment.
Chapter 30 Of Prosecution and Prescription. Chapter 31 Of Crimes of difficult Proof. Chapter 32 Of Suicide. Chapter 33 Of Smuggling. Chapter 34 Of bankrupts Chapter 35 Of Sanctuaries.
Chapter 36 Of Rewards for apprehending or killing Criminals. Chapter 37 Of Attempts, Accomplices, and Pardon.
Chapter 38 Of suggestive Interrogations. Chapter 39 Of a particular Kind of Crimes. Chapter 40 Of false Ideas of Utility.
Chapter 41 Of the Means of preventing Crimes. Chapter 42 Of the Sciences. Chapter 43 Of Magistrates. Chapter 44 Of rewards. Chapter 45 Of Education. Chapter 46 Of Pardons. Chapter 47 Conclusion.
Introduction.
In every human society, there is an effort continually tending to confer on one part the height of power and happiness, and to reduce the other to the extreme of weakness and misery. The intent of good laws is to oppose this effort, and to diffuse their influence universally and equally. But men generally abandoned the care of their most important concerns to the uncertain prudence and discretion of those whose interest it is to reject the best and wisest institutions; and it is not till they have been led into a thousand mistakes in matters the most essential to their lives and
liberties, and are weary of suffering, that they can be induced to apply a remedy to the evils with which they are oppressed. It is then they begin to conceive and acknowledge the most palpable truths which, from their very simplicity, commonly escape vulgar minds, incapable of analysing objects, accustomed to receive impressions, without distinction, and to be determined rather by the opinions of others than by the result of their own examination.
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. Happy are those few nations who have not waited till the slow succession of human vicissitudes should, from the extremity of evil, produce a transition to good; but by prudent laws have facilitated the progress from one to the other! And how great are the obligations due from mankind to that philosopher, who, from the obscurity of his closet, had the courage to scatter among the multitude the seeds of useful truths, so long unfruitful!
The art of printing has diffused the knowledge of those philosophical
truths, by which the relations between sovereigns and their subjects, and
between nations are discovered. By this knowledge commerce is animated, and there has sprung up a spirit of emulation and industry, worthy of rational beings. These are the produce of this enlightened age; but the cruelty of punishments, and the irregularity of proceedings in criminal cases, so principal a part of the legislation, and so much neglected throughout Europe, has hardly ever been called in question. Efforts, accumulated
through many centuries, have never yet been exposed by ascending to general principles; nor has the force of acknowledged truths been ever opposed to the unbounded licentiousness of ill-directed power, which has continually produced so many authorised examples of the most unfeeling barbarity. Surely, the groans of the weak, sacrificed to the cruel ignorance and
indolence of the powerful, the barbarous torments lavished, and multiplied with useless severity, for crimes either not proved, or in their nature
impossible, the filth and horrors of a prison, increased by the most cruel tormentor of the miserable, uncertainty, ought to have roused the attention of those whose business is to direct the opinions of mankind.
The immortal Montesquieu has but slightly touched on this subject. Truth, which is eternally the same, has obliged me to follow the steps of that great man; but the studious part of mankind, for whom I write, will easily distinguish the superstructure from the foundation. I shall be happy if, with him, I can obtain the secret thanks of the obscure and peaceful
disciples of reason and philosophy, and excite that tender emotion in which sensible minds sympathise with him who pleads the cause of humanity.
Of the Origin of Punishments.
Laws are the conditions under which men, naturally independent, united themselves in society. Weary of living in a continual state of war, and of enjoying a liberty which became of little value, from the uncertainty of its duration, they sacrificed one part of it, to enjoy the rest in peace and security. The sum of all these portions of the liberty of each individual constituted the sovereignty of a nation and was deposited in the hands of the sovereign, as the lawful administrator. But it was not sufficient only to establish this deposit; it was also necessary to defend it from the
usurpation of each individual, who will always endeavour to take away from the mass, not only his own portion, but to encroach on that of others. Some motives therefore, that strike the senses were necessary to prevent the despotism of each individual from plunging society into its former chaos. Such motives are the punishments established, against the infractors of the laws. I say that motives of this kind are necessary; because experience shows, that the multitude adopt no established principle of conduct; and because society is prevented from approaching to that dissolution, (to which, as well as all other parts of the physical and moral world, it
naturally tends,) only by motives that are the immediate objects of sense, and which being continually presented to the mind, are sufficient to
counterbalance the effects of the passions of the individual which oppose the general good. Neither the power of eloquence nor the sublimest truths are sufficient to restrain, for any length of time, those passions which are excited by the lively impressions of present objects.
Of the right to punish.
Every punishment which does not arise from absolute necessity, says the great Montesquieu, is tyrannical. A proposition which may be made more general thus: every act of authority of one man over another, for which there is not an absolute necessity, is tyrannical. It is upon this then that the sovereign's right to punish crimes is founded; that is, upon the
necessity of defending the public liberty, entrusted to his care, from the usurpation of individuals; and punishments are just in proportion, as the liberty, preserved by the sovereign, is sacred and valuable.
Let us consult the human heart, and there we shall find the foundation of the sovereign's right to punish; for no advantage in moral policy can be lasting which is not founded on the indelible sentiments of the heart of man. Whatever law deviates from this principle will always meet with a resistance which will destroy it in the end; for the smallest force
continually applied will overcome the most violent motion communicated to bodies.
No man ever gave up his liberty merely for the good of the public. Such a chimera exists only in romances. Every individual wishes, if possible, to be exempt from the compacts that bind the rest of mankind.
The multiplication of mankind, though slow, being too great, for the means which the earth, in its natural state, offered to satisfy necessities which
every day became more numerous, obliged men to separate again, and form new societies. These naturally opposed the first, and a state of war was transferred from individuals to nations.
Thus it was necessity that forced men to give up apart of their liberty. It is certain, then, that every individual would choose to put into the public stock the smallest portion possible, as much only as was sufficient to engage others to defend it. The aggregate of these, the smallest portions possible, forms the right of punishing; all that extends beyond this, is abuse, not justice.
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. We should be cautious how we associate with the word justice an idea of any thing real, such as a physical power, or a being that actually exists. I do not, by any means, speak of the justice of God, which is of another kind, and refers immediately to rewards and punishments in a life to come.
Consequences of the foregoing Principles.
The laws only can determine the punishment of crimes; and the authority of making penal laws can only reside with the legislator, who represents the whole society united by the social compact. No magistrate then, (as he is one of the society,) can, with justice, inflict on any other member of the same society punishment that is not ordained by the laws. But as a punishment, increased beyond the degree fixed by the law, is the just
punishment with the addition of another, it follows that no magistrate, even under a pretence of zeal, or the public good, should increase the punishment already determined by the laws.
If every individual be bound to society, society is equally bound to him, by a contract which from its nature equally binds both parties. This
obligation, which descends from the throne to the cottage, and equally binds the highest and lowest of mankind, signifies nothing more than that it is the interest of all, that conventions, which are useful to the greatest
number, should be punctually observed. The violation of this compact by any individual is an introduction to anarchy.
The sovereign, who represents the society itself, can only make general laws to bind the members; but it belongs not to him to judge whether any
individual has violated the social compact, or incurred the punishment in consequence. For in this case there are two parties, one represented by the sovereign, who insists upon the violation of the contract, and the other is the person accused who denies it. It is necessary then that there should be a third person to decide this contest; that is to say, a judge, or
magistrate, from whose determination there should be no appeal; and this determination should consist of a simple affirmation or negation of fact.