Cesare Beccaria, On Crimes and Punishments (1764)
Although French philosophes transformed Paris into the intellectual capital of the Enlightenment, they were not alone in their faith in the power of human reason to understand and reshape the world around them. Like-minded thinkers across Europe embraced the Enlightenment spirit in their own pursuit of knowledge and progress for humanity. For Cesare Beccaria (1738–1794), this pursuit centered on a critical study of existing criminal law. An Italian aristocrat and doctor of laws, Beccaria joined a circle of intellectuals in Milan committed to a broad program of reform, including the creation of a rational and centralized system of equal justice for all. One of the circle’s founders was an official in a local prison with firsthand knowledge of the physical and legal plight of prisoners. In his book On Crimes and Punishments, Beccaria takes up their cause by systematically examining the traditional legal and penal system. As he argues, many criminal justice practices not only are arbitrary, cruel, and ineffective, but also do not serve the greatest public good. Such practices include the use of torture to secure confessions (discussed in the excerpt that follows), the indiscriminate power of judges, and the use of capital punishment. Beccaria analyzes these and other outmoded forms of justice, calling for change. His book had a broad influence on European law, and was translated into French and English, serving as a model for legal reform.
From Cesare Beccaria, On Crimes and Punishments and Other Writings, ed. Richard Bellamy (Cambridge: Cambridge University Press, 1995), 7–8, 39–44.
For the most part, men leave the care of the most important regulations either to common sense or to the discretion of individuals whose interests are opposed to those most foresighted laws which distribute benefits to all and resist the pressures to concentrate those benefits in the hands of a few, raising those few to the heights of power and happiness, and sinking everyone else in feebleness and poverty. It is, therefore, only after they have experienced thousands of miscarriages in matters essential to life and liberty, and have grown weary of suffering the most extreme ills, that men set themselves to right the evils that beset them and to grasp the most palpable truths which, by virtue of their simplicity, escape the minds of the common run of men who are not used to analyzing things, but instead passively take on a whole set of second-hand impressions of them derived more from tradition than from enquiry.
If we open our history books we shall see that the laws, for all that they are or should be contracts amongst free men, have rarely been anything but the tools of the passions of a few men or the offspring of a fleeting and haphazard necessity. They have not been dictated by a cool observer of human nature, who has brought the actions of many men under a single gaze and has evaluated them from the point of view of whether or not they conduce to the greatest happiness shared among the greater number. Blessed are those very few nations which have not waited for the slow succession of coincidence and contingencies to bring about some tentative movement towards the good from out of the extremities of evil, but which have sped with good laws through the intervening stages. And that philosopher who had the courage to scatter out among the multitudes from his humble, despised study the first seeds of those beneficial truths that would be so long in bearing fruit, deserves the gratitude of all humanity.
We have discovered the true relations between sovereign and subjects and between nation and nation. Commerce has been stimulated by philosophic truths disseminated by the press, and there is waged among nations a silent war by trade, which is the most humane sort of war and more worthy of reasonable men. Such is the progress we owe to the present enlightened century. But there are very few who have scrutinized and fought against the savagery and the disorderliness of the procedures of criminal justice, a part of legislation which is so prominent and so neglected in almost the whole of Europe. How few have ascended to general principles to expose and root out the errors that have built up over the centuries, so curbing, as far as it is within the power of disseminated truths to do, the all too free rein that has been given to misdirected force, which has, up to now, provided an entrenched and legitimized example of cold-blooded atrocity. And yet, the groans of the weak, sacrificed to cruel indifference and to wealthy idleness, the barbarous tortures that have been elaborated with prodigal and useless severity, to punish crimes unproven or illusory, the horrors of prison, compounded by that cruelest tormentor of the wretched, uncertainty, ought to have shaken into action that rank of magistrates who guide the opinions and minds of men.
Of Torture
The torture of a criminal while his trial is being put together is a cruelty accepted by most nations, whether to compel him to confess a crime, to exploit the contradictions he runs into, to uncover his accomplices, to carry out some mysterious and incomprehensible metaphysical purging of his infamy, [or, lastly, to expose other crimes of which he is guilty but with which he has not been charged].
No man may be called guilty before the judge has reached his verdict; nor may society withdraw its protection from him until it has been determined that he has broken the terms of the compact by which that protection was extended to him. By what right, then, except that of force, does the judge have the authority to inflict punishment on a citizen while there is doubt about whether he is guilty or innocent? This dilemma is not a novelty: either the crime is certain or it is not; if it is certain, then no other punishment is called for than what is established by law and other torments are superfluous because the criminal’s confession is superfluous; if it is not certain, then an innocent man should not be made to suffer, because, in law, such a man’s crimes have not been proven. Furthermore, I believe it is a willful confusion of the proper procedure to require a man to be at once accuser and accused, in such a way that physical suffering comes to be the crucible in which truth is assayed, as if such a test could be carried out in the sufferer’s muscles and sinews. This is a sure route for the acquittal of robust ruffians and the conviction of weak innocents. Such are the evil consequences of adopting this spurious test of truth, but a test worthy of a cannibal, that the ancient Romans, for all their barbarity on many other counts, reserved only for their slaves, the victims of a fierce and overrated virtue.
What is the political purpose of punishment? The instilling of terror in other men. But how shall we judge the secret and secluded torture which the tyranny of custom visits on guilty and innocent alike? It is important that no established crime go unpunished; but it is superfluous to discover who committed a crime which is buried in shadows. A misdeed already committed, and for which there can be no redress, need be punished by a political society only when it influences other people by holding out the lure of impunity. If it is true that, from fear or from virtue, more men observe the laws than break them, the risk of torturing an innocent ought to be accounted all the greater, since it is more likely that any given man has observed the laws than that he has flouted them.
Another absurd ground for torture is the purging of infamy, that is, when a man who has been attainted by the law has to confirm his own testimony by the dislocation of his bones. This abuse should not be tolerated in the eighteenth century. It presupposes that pain, which is a sensation, can purge infamy, which is a mere moral relation. . . .
The third ground for torture concerns that inflicted on suspected criminals who fall into inconsistency while being investigated, as if both the innocent man who goes in fear and the criminal who wishes to cover himself would not be made to fall into contradiction by fear of punishment, the uncertainty of the verdict, the apparel and magnificence of the judge, and by their own ignorance, which is the common lot both of most knaves and of the innocent; as if the inconsistencies into which men normally fall even when they are calm would not burgeon in the agitation of a mind wholly concentrated on saving itself from a pressing danger.
. . . Every act of our will is always proportional to the force of the sensory impression which gives rise to it; and the sensibility of every man is limited. Therefore, the impression made by pain may grow to such an extent that, having filled the whole of the sensory field, it leaves the torture victim no freedom to do anything but choose the quickest route to relieving himself of the immediate pain. . . . And thus the sensitive but guiltless man will admit guilt if he believes that, in that way, he can make the pain stop. All distinctions between the guilty and the innocent disappear as a consequence of the use of the very means which was meant to discover them.
This truth is also felt, albeit indistinctly, by those very people who apparently deny it. No confession made under torture can be valid if it is not given sworn confirmation when it is over; but if the criminal does not confirm his crime, he is tortured afresh. Some learned men and some nations do not allow this vicious circle to be gone round more than three times; other nations and other learned men leave it to the choice of the judge, in such a way that, of two men equally innocent or equally guilty, the hardy and enduring will be acquitted and the feeble and timid will be convicted by virtue of the following strict line of reasoning: I, the judge, had to find you guilty of such and such a crime; you, hardy fellow, could put up with the pain, so I acquit you; you, feeble fellow, gave in, so I convict you. I know that the confession extorted from you in the midst of your agonies would carry no weight, but I shall torture you afresh if you do not confirm what you have confessed.
A strange consequence which necessarily follows from the use of torture is that the innocent are put in a worse position than the guilty. For, if both are tortured, the former has everything against him. Either he confesses to the crime and is convicted, or he is acquitted and has suffered an unwarranted punishment. The criminal, in contrast, finds himself in a favorable position, because if he staunchly withstands the torture he must be acquitted and so has commuted a heavier sentence into a lighter one. Therefore, the innocent man cannot but lose and the guilty man may gain.
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