Cesare Beccaria’s On Crimes and Punishments is a short treatise on criminal law, written in Milan in the middle of the eighteenth century and circulated first among a circle of learned friends before being printed. Its form is that of an argument: a sequence of brief chapters, each taking up one piece of the penal system—punishments, evidence, witnesses, torture, oaths, imprisonment, the death penalty—and measuring it against reason and against the good of society. The book moves from first principles about why men submit to laws at all to concrete proposals for reform, and it closes with a body of commentary, attributed by the reading public to Voltaire, that illustrates the main text with historical cases.
“It is not furprifing, then,, that this little book hath engaged the at- tention of all ranks of people in every part of Europe.”
At the center of the book lies a single claim from which everything else follows: punishment is justified only by necessity. Beccaria builds this out of a compact theory of society. Men, weary of war and of a liberty that was never secure, surrendered a portion of their freedom to live in peace; the sum of those smallest portions is the sovereign’s authority, and the right to punish is nothing more than the right to defend that deposit against private usurpation. Every act of authority for which there is no absolute necessity is, in his blunt phrase, tyrannical. Punishments that exceed what is needed to preserve the social bond are unjust in their very nature, and the true end of punishment is not to torment a sensitive being or to undo a crime already committed but to deter others from committing the like.
How the Case Against Cruelty Builds
The Translator’s Case for the Book
The Edinburgh edition opens with a translator’s preface that makes a blunt argument: penal laws matter more than almost any other branch of legislation, because the happiness, peace, and security of society depend on them, yet in every nation they remain imperfect and loaded with needless cruelty. Bringing them back to the standard of reason, the translator says, is a cause that should interest all mankind. The reception of the book bears him out. Within about eighteen months of its first appearance it had run through six editions in the original language, the third printed within six months; it was translated into French and reprinted several times, and perhaps no book was ever received with more eagerness or more universal applause. The author is the Marquis Beccaria of Milan, and the reasons for concealing his name, given the religion and government under which he lives, are obvious enough. The whole work was read at different times to a society of learned men in that city and published at their desire.
The translator defends his own method. He has kept the original order, restoring only a paragraph or two to the chapters where they evidently belong, and he attacks the French translator for transposing every chapter and paragraph—a liberty no translator possesses, since an author has as undoubted a right to the arrangement of his ideas as to the ideas themselves. The Commentary appended to the work is attributed to Voltaire on the voice of the public, which the translator calls the only authority for most of that writer’s works. To the objection that such a treatise is useless in England, he answers with the confinement of debtors, the filth and horror of prisons, the cruelty of jailors, the extortion of petty officers of justice, and the claim that more criminals are put to death in England than in any other part of Europe. Rescuing a single victim from tyranny or ignorance, he says with his author, would console him for the contempt of all mankind.
The Introduction: Laws as Conventions Between Free Men
Beccaria’s introduction sets out the problem. In every human society an effort continually tends to concentrate the height of power and happiness in one part and reduce the other to weakness and misery; good laws are meant to oppose that effort and spread their influence universally and equally. Yet men generally abandon their most important concerns to the uncertain prudence of those whose interest it is to reject the best institutions, and only after a thousand mistakes and the weariness of suffering do they apply a remedy. History shows that laws, which are or ought to be conventions between men in freedom, have mostly been the work of the passions of a few or of fortuitous necessity, not dictated by a cool examiner of human nature aiming at the greatest happiness of the greatest number. Printing has spread philosophical truths and revealed the relations between sovereigns and subjects and between nations, animating commerce and a spirit of emulation and industry; but the cruelty of punishments and the irregularity of criminal proceedings have hardly ever been called in question. Errors accumulated through centuries have never been exposed by ascending to general principles, nor has the force of acknowledged truths been opposed to ill-directed power. The immortal Montesquieu touched on the subject only lightly, and truth obliged the author to follow that great man’s steps.
The Origin of Punishments and the Right to Punish
The first chapter grounds punishment in a compact. Laws are the conditions under which naturally independent men united in society; weary of war and of uncertain liberty, they sacrificed part of it to enjoy the rest in peace and security. The sum of these portions constituted the sovereignty of a nation, deposited in the sovereign as lawful administrator, and it was necessary to defend that deposit from the usurpation of each individual, who always tries to take away not only his own portion but that of others. Some motives striking the senses were needed to prevent the despotism of each individual from plunging society back into its former chaos: such motives are punishments established against infractors of the laws. They are necessary because experience shows the multitude adopt no established principle of conduct, and society is kept from dissolution only by motives that are immediate objects of sense; neither eloquence nor the sublimest truths suffice to restrain passions excited by lively impressions of present objects.
The second chapter asks by what right the sovereign punishes. Every punishment which does not arise from absolute necessity, says Montesquieu, is tyrannical—and Beccaria generalizes the proposition: every act of authority of one man over another for which there is not absolute necessity is tyrannical. The sovereign’s right to punish rests on the necessity of defending the public liberty entrusted to his care from the usurpation of individuals; punishments are just in proportion as the liberty preserved is sacred and valuable. The foundation of this right lies in the human heart, and no advantage in moral policy can last unless founded on the indelible sentiments of the heart of man; whatever law deviates from this principle will always meet a resistance which will destroy it in the end. No man ever gave up his liberty merely for the good of the public—such a chimera exists only in romances—and every individual wishes, if possible, to be exempt from the compacts that bind the rest of mankind. The multiplication of mankind obliged men to separate and form new societies, which naturally opposed the first, transferring a state of war from individuals to nations. Necessity forced men to give up a part of their liberty, and each would choose to put into the public stock the smallest portion possible, only as much as was sufficient to engage others to defend it. The aggregate of these smallest portions forms the right of punishing; all that extends beyond is abuse, not justice. By justice is understood nothing more than that bond necessary to keep the interest of individuals united, without which men would return to their original state of barbarity; all punishments exceeding the necessity of preserving this bond are in their nature unjust. We should be cautious about associating with the word justice any idea of something real, such as a physical power or an actually existing being; the author does not speak of the justice of God, which is of another kind and refers immediately to rewards and punishments.
Obscurity of Laws and the Proportion Between Crimes and Punishments
A brief remark prefaces the next stretch: the principles laid out will displease those who transmit to inferiors the tyranny they suffer from superiors. The author says he would fear everything if tyrants read his book—but tyrants rarely read.
Obscurity of laws follows from the power of interpreting them, and the evil grows when laws are written in a language unknown to the people, who then depend on a few interpreters, so that laws meant to be public and general become private and particular—the established custom, Beccaria notes, of most of polished and enlightened Europe. Crimes will be less frequent as the code is more universally read and understood, since the eloquence of the passions is greatly assisted by ignorance and uncertainty of punishment. Without written laws no society acquires a fixed form of government in which power is vested in the whole, laws altered only by the will of the whole and not corrupted by private interest. The probability of human traditions diminishes with distance from their sources, so laws need a lasting monument of the social compact—hence printing, which makes the public, not a few individuals, the guardians of the laws, dissipating cabal and intrigue and making the atrocious crimes of ancestors, alternately slaves and tyrants, less frequent. From luxury and effeminacy have sprung humanity, benevolence, and toleration of human errors; the author contrasts this with an ancient simplicity and good faith under which humanity groaned beneath implacable superstition, avarice and ambition gained thrones with human blood, secret treasons and public massacres abounded, every noble was a tyrant, and ministers of the gospel bathed their hands in blood in the name of the God of mercy. Happily, he says, we see no such horrid examples now.
The proportion between crimes and punishments rests on common interest: not only that crimes not be committed, but that crimes of every kind be less frequent in proportion to the evil they produce. The legislature’s means of prevention should be more powerful as crimes are more destructive of public safety and as inducements to commit them are stronger; there ought, therefore, to be a fixed proportion between crimes and punishments.
The Politically Idle
Beccaria turns to idleness as a species of social harm, though he is careful to distinguish it from leisure. A government devoted to labour and industry should not tolerate what he calls political idleness—the condition of those who contribute to society neither by their work nor by their wealth, who accumulate continually and never spend. The vulgar look on such people with stupid admiration; the wise regard them with contempt. Deprived of any incitement to activity, they pour their vigour into the strongest of the passions, the passions of opinion. By contrast, the man who enjoys the fruits of his ancestors’ virtues or vices and, in exchange for his pleasures, supports the industrious poor is not idle at all. What species of idleness deserves punishment is a question for the laws to settle, not for the narrow virtue of austere moralists.
Banishment, Confiscation, and the Limits of Punishment
Whoever disturbs public tranquillity, disobeys the laws, or violates the conditions on which men mutually support and defend one another ought to be excluded from society—that is, banished. Banishment suits those accused of an atrocious crime who are probably, though not certainly, guilty; the law ordaining it should be as precise and as little arbitrary as possible, condemning only those who have reduced the community to the fatal choice of fearing them or unjustly punishing them, while leaving them the sacred right to prove their innocence. Stronger reasons are needed to banish a citizen than a stranger, and to banish on a first accusation than on one long repeated.
Whether the person excluded forever should also lose his property is a separate question. Confiscation added to banishment is a greater punishment than banishment alone, so there ought to be cases where all, part, or none of the fortune is forfeited. The whole should be forfeited when the law declares every connection between society and the criminal annihilated—here the citizen dies while the man remains, and the effects should pass to lawful heirs. Beccaria disapproves of confiscations on principle: though punishments may produce good, they are not therefore more just, since to be just they must be necessary. Even a useful injustice can never be allowed by a legislator guarding against watchful tyranny, which under the pretext of momentary advantage would establish permanent principles of destruction and, for the ease of a few in high station, draw tears from thousands of the poor. A law of confiscation sets a price on the subject’s head, punishes the innocent with the guilty, and by reducing a family to indigence and despair tempts its members to become criminal—a melancholy spectacle of a whole household overwhelmed with infamy and misery for the crime of its chief, which the laws themselves, by exacting submission, restrained them from preventing.
The State as a Society of Men, Not Families
Many fatal acts of injustice, Beccaria observes, have been authorized by the wisest men in the freest republics because they considered the state a society of families rather than of men. A nation of a hundred thousand men divided into twenty thousand families of five persons each contains, as an association of families, twenty thousand men and eighty thousand slaves; as an association of men, it contains a hundred thousand citizens and no slaves. In the first case there is a republic and twenty thousand little monarchies whose heads are sovereigns; in the second, the spirit of liberty breathes in public places, in assemblies, and in private houses. If society is an association of heads of families, the spirit of monarchy creeps gradually into the republic, restrained only by opposing interests and never by a universal spirit of liberty and equality. Private family spirit is narrow; public spirit deduces general rules of utility to the greatest number.
In a republic of families, children remain under the father’s authority as long as he lives, waiting until his death for an existence dependent on the laws alone; accustomed to kneel and tremble in their tender years, how should they resist vice in the decline of age? Where every man is a citizen, family subordination is the effect of contract rather than compulsion, and sons become free members of society while remaining subject to the head of the family for their own advantage. In a republic of families, the young—the most numerous and useful part of the nation—are at their fathers’ discretion; in a republic of men they are attached to their parents only by mutual assistance and gratitude, a sentiment destroyed not so much by wickedness as by mistaken legal subjection. These contradictions between family laws and fundamental laws breed conflicts between public and private morality: domestic morality inspires submission and fear, the other courage and liberty; the one confines beneficence to a small number not of one’s choosing, the other extends it to all mankind; the one commands sacrifice to a vain idol called the good of the family, the other teaches regard for one’s own advantage without offending the laws, or sacrifice for one’s country. Hence men neglect virtue, hardly distinguishing it amid the confusion, and are astonished to find themselves dishonest. As society grows, each member becomes a smaller part of the whole, and the republican spirit diminishes if the laws neglect it. Political societies, like the human body, have limits they cannot exceed without disturbing their economy; the greatness of a state ought to be inversely as the sensibility and activity of individuals. An overgrown republic can be saved from despotism only by subdividing into confederate republics—practicable only by a despot with the courage of Sylla and as much genius for building up as that Roman had for pulling down.
The Case Against the Death Penalty
The argument against capital punishment resumes with religion: presented to a lawless villain, it promises near-certainty of eternal happiness on the easy terms of repentance, which lessens the horror of the final scene. By contrast, one who foresees passing many years—even his whole life—in pain and slavery, a slave to the laws that protected him, before fellow citizens with whom he once lived in freedom, makes a useful comparison between those evils, the uncertainty of success, and the brief time he would enjoy the fruits of transgression. The example of wretches continually before his eyes impresses him more than a punishment which, instead of correcting, makes him more obdurate.
Death is pernicious to society from the example of barbarity it affords. If passions or the necessity of war have taught men to shed blood, laws meant to moderate mankind’s ferocity should not increase it by examples of barbarity, more horrible as the punishment is attended with formal pageantry. It is absurd that laws which detest and punish homicide should, to prevent murder, publicly commit murder themselves. True and useful laws are those whose compass and conditions all would propose and observe when private interest is silenced or combined with the public. The natural sentiment concerning death is read in the contempt and indignation with which everyone looks on the executioner—nevertheless an innocent executor of the public will, a good citizen contributing to general security within, as good soldiers do without. The origin of this contradiction lies in a secret corner of the mind where nature’s original impressions are preserved, where men discover a sentiment telling them their lives are not lawfully in the power of any one but of necessity only, which with its iron sceptre rules the universe.
Men who see wise magistrates indifferently dragging a criminal to death—while the wretch trembles awaiting the fatal stroke, the judge who condemned him, with coldest insensibility and perhaps gratification from his authority, quits his tribunal to enjoy life’s comforts—will say that those cruel formalities of justice cloak tyranny, a secret language and solemn veil concealing the sword by which they are sacrificed to the insatiable idol of despotism. Murder, represented as horrible, they see practised by them without repugnance; let us follow their example. A violent death seemed terrible in their descriptions but is the affair of a moment, still less terrible to him who, not expecting it, escapes almost all the pain. Such is the fatal though absurd reasoning of men disposed to crimes, on whom the abuse of religion has more influence than religion itself.
The Case Against Killing the Unwed Mother
The commentary appended to the edition opens mid-argument on infanticide, and its reasoning is blunt: because the child is already dead, there is no absolute necessity to kill the mother. She did not kill the child. She may have hoped some passerby would pity the innocent babe, or even meant to return and provide for it—a sentiment so natural in a mother’s breast that it ought to be presumed. The law in the country under discussion stands positively against her, but the commentator asks whether it is not unjust, inhuman, and pernicious all at once. Unjust, because it draws no distinction between the woman who murders and the woman who abandons her infant; inhuman, because it punishes with death a too-great desire to conceal a weakness; pernicious, because it deprives the state of a fruitful subject in a country that wants inhabitants. Charity has not yet established houses of reception for exposed infants there, and where charity is wanting, the law is always cruel. Better to prevent than only to punish these frequent misfortunes; jurisprudence should hinder crimes rather than condemn to death a weak woman whose transgression carried no malice and who has already been punished by the pangs of her own heart. Insure, as far as possible, a resource to those tempted to do evil, and there will be less to punish.
Punishments That Exceed the Crime
The second chapter of the commentary states that this misfortune and hard law prompted the author to fix his eyes on the criminal code of nations; the humane author of the Essay had too much cause to complain that punishments frequently exceed crimes and are sometimes detrimental to the state they were meant to serve. Ingenious punishments endeavouring to render death horrible seem inventions of tyranny rather than justice. The wheel was first introduced in Germany in times of anarchy, when usurpers resolved to terrify with unheard-of torments those who should dispute their authority. In England they ripped open the belly of a man guilty of high-treason, tore out his heart, dashed it in his face, and threw it into the fire—high-treason frequently consisting in having been, during a civil war, faithful to an unfortunate king, or in having spoken freely on the doubtful right of the conqueror. Manners softened; they continued to tear out the heart, but not till after death.
The Blood of Heretics at Treves
Denunciation of death for differing in certain dogmas is called peculiarly the act of tyranny. No Christian emperor before the tyrant Maximus thought of condemning a man merely for points of controversy; two Spanish bishops pursued the Priscillianists to death under Maximus, who wished to gratify the reigning party with the blood of heretics. Barbarity and justice were to him indifferent; jealous of Theodosius, a Spaniard like himself, he endeavoured to deprive him of the empire of the East as he had obtained that of the West. Theodosius was hated for cruelties but had gained the heads of the church; Maximus wished to display the same zeal and attach the Spanish bishops to his faction, flattering both old and new religion—as treacherous as inhuman, as were all who then pretended to or obtained empire. That vast part of the world was governed like Algiers; emperors were created and dethroned by military power, often chosen from nations reputed barbarous. Theodosius opposed barbarians from Scythia, filled the army with Goths, and surprised Alaric the conqueror of Rome.
Maximus, having caused the Emperor Gratian, colleague of Theodosius, to be assassinated at Lyons, meditated the destruction of Valentinian the second, named successor to Gratian during his infancy. He assembled at Treves a powerful army of Gauls and Germans and levied troops in Spain, when two Spanish bishops, Idacio and Ithacus, men of credit, demanded the blood of Priscillian and all his adherents, who held that souls were emanations from God, that the Trinity did not contain three hypostases, and who carried sacrilege so far as to fast on Sundays. Maximus, half Pagan and half Christian, perceived the enormity of these crimes. The holy bishops obtained leave to torture Priscillian and his accomplices before death; both were present that things might be done according to order, and returned blessing God and numbering Maximus, defender of the faith, among the saints. But Maximus, afterward defeated by Theodosius and assassinated at the feet of his conqueror, had not the good fortune to be canonized. Saint Martin, bishop of Tours, really a good man, solicited Priscillian’s pardon, but being accused of heresy by the bishops, returned to Tours for fear of the torture at Treves. Priscillian had the consolation, after being hanged, of being honoured by his sect as a martyr; his feast was celebrated and would be still, if any Priscillianists remained.
The example made the entire church tremble, but was soon imitated and surpassed. Priscillianists had been put to death by the sword, the halter, and lapidation; a young lady of quality suspected of fasting on a Sunday was at Bourdeaux only stoned to death. These punishments appeared too mild; it was proved God required heretics to be roasted alive—the peremptory argument being that God punishes them so in the next world, and every prince or his representative, down to a petty constable, is the image of God in this sublunary world. On this principle all over Europe they burnt witches and sorcerers, manifestly under the devil’s empire, and also heterodox Christians, deemed still more criminal and dangerous. It is not certainly known what was the crime of those priests burnt at Orleans before king Robert and his wife Constantia.
Anthony the Preacher, Burnt at Geneva
The case of Anthony follows: unsafe among papists and protestants, he went to Venice and turned Jew, convinced to his last moments that Judaism was the only true religion—if once true, always so. The Jews did not circumcise him for fear of offending the state, but he was internally a Jew. He went to Geneva, concealed his faith, became a preacher, president of the college, and finally a minister. The perpetual combat between the Calvinist religion he had to preach and that of Moses he believed produced a long illness; he became melancholy and finally mad, crying aloud that he was a Jew. Ministers visited him; he answered that he adored none but the God of Israel, that God cannot change, and could never have given a law inscribed with his own hand intending it to be abolished. He spoke against Christianity, then retracted everything and even wrote his confession of faith to escape punishment, but his heart’s persuasion would not let him sign it. The council of the city assembled the clergy; the minority urged compassion and curing his disease rather than punishing him; the majority determined he be burnt, and he was burnt, in the year 1632. A hundred years of reason and virtue are scarce sufficient to expiate such a deed.
Simon Morin and His Informer
Simon Morin was burnt at Paris in 1663, amid a brilliant court’s feasting and gallantry. Imagining he had seen visions, he believed he was sent from God and incorporated with Jesus Christ. Parliament wisely condemned him to a mad-house, where another fool calling himself God the Father so struck him with his own folly that he acknowledged it, repented, and unfortunately obtained liberty. He relapsed and began to dogmatize; his destiny brought him to St. Sorlin Desmarets, his friend for some months, who from jealousy became his cruelest persecutor. Desmarets was no less a visionary: he printed the Tragi-Comedies of Erigone and Mirame, a translation of the Psalms, the Romance of Ariane, the Poem of Clovis, and the office of the holy Virgin in verse, plus dithyrambic poems with invectives against Homer and Virgil.
The Measure of Crimes and the Machinery of Proof
Running through the whole treatise is a demand for proportion. Crimes, Beccaria insists, are to be measured by the injury done to society, not by the intention of the offender or the dignity of the offended party, and punishments should form a scale corresponding to that injury—the gravest offenses against the commonwealth at one end, the smallest injustice to a private citizen at the other. Where the scale is broken, where two unequal crimes carry equal penalties, the law itself pushes the criminal toward the greater offense, since it offers the larger advantage at the same price. He is candid that exactness is impossible: in what he calls political arithmetic one substitutes a calculation of probabilities for mathematical precision, and the wise legislator marks the principal divisions without pretending to a perfect table.
The same insistence on reason governs his treatment of evidence. Moral certainty, he argues, is only a high probability, the kind of assurance on which men act in their most important affairs; proofs are perfect when they exclude the possibility of innocence and imperfect when they do not, and a single perfect proof suffices for conviction. From this he draws conclusions that were radical for his day: that the judge’s office, where laws are clear, is merely to ascertain the fact; that an ignorant man judging by feeling may err less than a learned one judging by system; that trials should be public so that opinion, the best or only cement of society, can restrain both the powerful and the magistrate. His treatment of witnesses follows the same logic—credibility rises and falls with a person’s interest in the truth, which is why it is frivolous to bar women or the infamous from testifying and why, in atrocious crimes, the very improbability of the act should make testimony count for less rather than more.
The Practices He Refuses to Accept
Certain institutions draw the full force of his anger. Torture he attacks from every angle: it is a criterion of truth that acquits the strong and condemns the weak, it makes the innocent man’s case worse than the guilty man’s, it demands that a person accuse himself in defiance of the self-love nature planted in him, and it is a contradiction for a law to forbid suggestive questions while authorizing a procedure that suggests an answer more powerfully than any interrogation. Oaths put to a criminal are, in his view, a palpable contradiction between law and natural sentiment, since interest speaks louder than religion whenever the two collide. Secret accusations, pecuniary punishments that turn the judge into a collector for the treasury, confiscations that punish a whole family for the crime of its head—each is examined and found wanting. The death penalty receives his longest argument: it is pernicious because of the example of barbarity it sets, absurd because a law that detests homicide commits murder to prevent it, and unnecessary because a lifetime of labor and slavery impresses the mind more than a single stroke that is, to the one who suffers it, over in a moment.
The State as a Society of Men
Behind the technical chapters sits a broader vision of what a commonwealth is for. Beccaria warns against false ideas of utility—laws that destroy a thing to prevent its abuse, that command men’s sentiments instead of exciting them, that sacrifice a thousand real advantages to the fear of a trifling inconvenience. He argues that it is better to prevent crimes than to punish them, and that prevention lies in clear and simple laws, in knowledge spread among the people, in making the laws feared and the laws only. His chapter on the spirit of family in states makes the point sharply: a nation that thinks of itself as a society of families rather than of men breeds twenty thousand little monarchies and eighty thousand slaves, while a nation of citizens breathes liberty in its assemblies and its homes. Political bodies, like the human body, have limits they cannot exceed without disturbing their economy, and an overgrown republic can be saved from despotism only by dividing into confederate republics.
A Small Book with a Long Shadow
The treatise traveled far beyond Milan. The translator’s preface records that within about eighteen months of its first appearance it passed through six editions in the original language and was translated into French and reprinted several times, and that perhaps no book was ever received with more avidity. Its arguments about torture, secret proceedings, and capital punishment fed directly into the reform movements of the following generations, and the appended commentary—attributed on the voice of the public to Voltaire—extends the case with a grim catalogue of judicial murders: the burning of heretics, the execution of the mad, the witch trials that filled European tribunals for centuries. Beccaria’s own hope was modest and stated without embarrassment: that by supporting the rights of mankind he might help save even one victim of tyranny or ignorance from the agonies of death, and that this would console him for the contempt of all mankind.
