On Crimes and Punishments and Other Writings 9781442688735

Long appreciated as a foundational text in criminology, Beccaria?s arguments have become central in debates over capital

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On Crimes and Punishments and Other Writings
 9781442688735

Table of contents :
Contents
Acknowledgments
Foreword
Preface
Introduction: Between Law and Politics – The Idea of Equality in On Crimes and Punishments
1. On Crimes and Punishments
2. Contemporary Reactions to On Crimes and Punishments
3. Revisiting the Death Penalty
Note on the Texts
Notes
Bibliography
Index

Citation preview

ON CRIMES AND PUNISHMENTS and Other Writings

THE LORENZO DA PONTE ITALIAN LIBRARY General Editors Luigi Ballerini and Massimo Ciavolella, University of California at Los Angeles Honorary Chairs †Professor

Vittore Branca Honorable Dino De Poli Ambassador Gianfranco Facco Bonetti Honorable Anthony J. Scirica Advisory Board Remo Bodei, Università di Pisa Lina Bolzoni, Scuola Normale Superiore di Pisa Francesco Bruni, Università di Venezia Giorgio Ficara, Università di Torino Michael Heim, University of California at Los Angeles †Amilcare A. Iannucci, University of Toronto Rachel Jacoff, Wellesley College Giuseppe Mazzotta, Yale University Gilberto Pizzamiglio, Università di Venezia Margaret Rosenthal, University of Southern California John Scott, University of Western Australia Elissa Weaver, University of Chicago

CESARE BECCARIA

ON CRIMES AND PUNISHMENTS and Other Writings Edited by Aaron Thomas Translated by Aaron Thomas and Jeremy Parzen

UNIVERSITY OF TORONTO PRESS Toronto Buffalo London

© University of Toronto Press 2008 www.utppublishing.com Toronto Buffalo London Printed in Canada isbn 978-0-8020-8990-8

Printed on acid-free paper The Lorenzo Da Ponte Italian Library

Library and Archives Canada Cataloguing in Publication Beccaria, Cesare, marchese di, 1738–1794 On crimes and punishments and other writings/Cesare Beccaria; edited by Aaron Thomas; translated by Aaron Thomas and Jeremy Parzen. (Lorenzo Da Ponte Italian library series) Translation of Dei delitti e delle pene, published 1764. Includes bibliographical references and index. ISBN 978-0-8020-8990-8 1. Crime – Philosophy – Early works to 1800. 2. Criminal justice, Administration of – Early works to 1800. 3. Punishment – Early works to 1800. 4. Capital punishment – Early works to 1800. 5. Criminal law – Philosophy – Early works to 1800. I. Thomas, Aaron II. Parzen, Jeremy III. Title. IV. Series. HV8661.B5 2007

364.01

C2007-905083-2

This volume is published under the aegis and with financial assistance of: Fondazione Cassamarca, Treviso; Ministero degli Affari Esteri, Direzione Generale per la Promozione e la Cooperazione Culturale; Ministero per i Beni e le Attività Culturali, Direzione Generale per i Beni Librari e gli Istituti Culturali, Servizio per la promozione del libro e della lettura. Publication of this volume is assisted by the Istituto Italiano di Cultura, Toronto. University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council. University of Toronto Press acknowledges the financial support for its publishing activities of the Government of Canada through the Book Publishing Industry Development Program (BPIDP).

Contents

Acknowledgments

vii

Foreword by Bryan Stevenson Preface by Aaron Thomas

ix xv

Introduction: Between Law and Politics – The Idea of Equality in On Crimes and Punishments by Alberto Burgio xxxiii PART I On Crimes and Punishments

1

PART II Contemporary Reactions to On Crimes and Punishments

87

Ferdinando Facchinei, from Notes and Observations on the Book Entitled ‘On Crimes and Punishments’ (1765) 89 Pietro and Alessandro Verri, from Response to a Writing Entitled ‘Notes and Observations on the Book “On Crimes and Punishments”’ (1765) 102 Voltaire, Commentary on the Book On Crimes and Punishments, by a Provincial Lawyer (1766) 113 PART III Revisiting the Death Penalty

oo

Opinion of the Undersigned Members of the Committee Charged with the Reform of the Criminal System in Austrian Lombardy for Matters Pertaining to Capital Punishment (1792) 153

C on t e n ts

Note on the Texts Notes

163

Bibliography Index

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161

181

185

Acknowledgments

I wish to thank Luigi Ballerini and Massimo Ciavolella for entrusting me with this project, for their guidance throughout, and for their patience in seeing it to fruition. If I have overindulged in the latter, it has not been in vain, for their unflagging efforts and generous advice have contributed in inestimable ways to the final product. Remo Bodei, Alberto Burgio, Domenico Felice, Gianni Francioni, and Filippo Sabetti all discussed various aspects of the texts presented here, helping to clarify some of the more challenging passages and references. To Professor Francioni in particular I owe a debt of gratitude for providing me, via the kind sponsorship of Mediobanca, the several volumes that comprise Beccaria’s collected works. Danise Kimball and Roberto Farneti contributed valuable and constructive criticism, as did two anonymous readers. Assistance with specific legal questions and terminology was kindly offered by Hon. Anthony Sirica, Michele Taruffo, and Riccardo GoriMontanelli. Thomas Casadei, Sam Gilbert, and Gianmaria Zamagni gave thoughtful advice on the translation of particular passages, as did Jennifer Nelson, reference librarian at the Robbins Collection of University of California at Berkeley, who also facilitated access to original texts by Beccaria and others. I am indebted to my mentors Carole Pateman, Eugene Victor Wolfenstein, and Kirstie McClure for their longstanding support and the invaluable contributions they have made to my intellectual development. I am grateful to Kate Baltais for her meticulous copyediting and to Ron Schoeffel at the University of Toronto Press for his unswerving and cheerful support. Special thanks are due to my parents for their warm encouragement. My father, Eugene Thomas, read much of the manuscript and proved to be an ideal reader in many ways. Aaron Thomas

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Foreword bryan stevenson

A punishment that penalizes without forestalling is indeed called revenge. It is a quasi-arithmetical reply made by society to whoever breaks its primordial law. That reply is as old as man; it is called the law of retaliation. Whoever has done me harm must suffer harm; whoever has put out my eye must lose an eye; and whoever has killed must die. This is an emotion, and a particularly violent one, not a principle. Retaliation is related to nature and instinct, not to law. Law, by definition, cannot obey the same rules as nature. If murder is in the nature of man, the law is not intended to imitate or reproduce that nature. It is intended to correct it. Now, retaliation does no more than ratify and confer the status of a law on a pure impulse of nature. Albert Camus1

Each of us is more than the worst thing that we’ve ever done. No one is just the crime she or he commits, the lie he tells, the mistake, accident, or misjudgment she makes. The modern human rights movement is rooted in the basic notion that every person must be afforded some measure of dignity and worth. When we fail to recognize the dignity of any human being, we risk the humanity of us all. The lowest of the low, the wretched, the despised and rejected, the condemned and reviled – none can be excluded from the ‘moral arc of the universe’ if it is to bend towards justice. The human condition requires that individuals be guided by laws that transcend the weakness of anger, fear, and

Foreword

other human emotions. Punishment must be rooted in a vision of justice that inspires, rehabilitates, and esteems humankind. Cesare Beccaria understood that the administration of criminal justice provides organized societies with the greatest opportunity to ennoble the human struggle, but also presents civilization with a tremendous risk of corruption through temporal passions and abuse of power. Beccaria’s On Crimes and Punishments remains one of the most influential works on crime and punishment written in the past three centuries. Yet his reasoning still eludes some of the twenty-first century’s most advanced societies. Policymakers in English-speaking countries around the world have much to gain by acquainting themselves with this timely and welcome translation of Beccaria’s classic text. These are perilous times. We are struggling to understand what justice requires when crime and reckless judgment create violence, tragedy, destruction, and fear. In the United States, crime control and punishment policy is incident-driven, fuelled by an unseemly enthusiasm for harsh and reactionary responses. A vast and overeager system of incarceration has created the most imprisoned society in the world. Unspeakable crimes have inspired unspeakable punishments in a hopeless cycle that defies almost everything that Beccaria regarded as sensible. Fourteen-year-old children are sentenced to life imprisonment without parole, while sixteen-year-olds are sentenced to death and executed. The bicycle thief is sent to prison for decades, sometimes with no opportunity for parole, to satisfy the demands of a catchy aphorism: ‘Three strikes, you’re out.’ The mentally ill are warehoused in penitentiaries, untreated, and largely forgotten. One out of three black men between the ages of eighteen and thirty is in jail, in prison, or under some other form of criminal justice system control; thus, America’s historic race problem has become inexorably entwined with its criminal justice problem. As the United States continues to open new prisons almost weekly, fear and anger have intensified in the wake of acts of terrorism. Tensions between the rich and the poor remain unabated, and enmity between the powerful and the powerless resides uneasily in large cities and small towns alike. All the while, incendiary racial and religious conflicts swirl about with explosive implications for every conflict, crime, and punishment.

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In the Caribbean, the legacy of colonialism has fractured justice systems with antiquated punishment schemes that burden and oppress full democracy. In Africa, genocide, ethnic conflict, and savage poverty have overwhelmed decision makers regulating crime and punishment, leaving governments frantic and reactionary. In the Middle East, Asia, and Europe, uncertainty and tension give rise to despair, criminality, and frustration. It is precisely in such times that Beccaria offers much to those who study his work carefully. His vision is a great aid to anyone who believes that the rule of law can advance human progress only when it is rational and transcends the beguiling passions of the moment. It’s possible that through reacquainting ourselves with Beccaria we might actually recognize that many of our current punishment strategies are devoid of the integrity that effective systems of justice require. Modern societies have too often been paralysed by ignorance and anger when it comes to crime policy. As a consequence, we’ve created punishments that are fearful, misguided reactions to our lawless instincts for revenge. We falsely posture about what irrational punishments can achieve, while crime and suffering flourish. Some of our punishments and responses to crime have become hopeless pronouncements disconnected from reason. Violence and abuse by despairing individuals who commit crimes have made us comfortable with punishments that are similarly violent and abusive. We’ve grown indifferent to the cost these punishments impose on our own humanity. We are too quick to ignore humankind’s abiding moral imperative that we overcome our destructive weaknesses rather than give in to them. What many so-called advanced societies are doing in the name of punishment can only be described as troubling. This is especially true of societies that still impose the death penalty. Beccaria’s indictment of capital punishment is what most antagonized many of his contemporaries, but the force of his reasoning is as powerful today as it was in the eighteenth century. In the United States politicians glory in their will to execute criminals. The machinery of death has been constructed with corrosive parts that are simultaneously grotesque and obscure. A legal culture has evolved that celebrates the state’s power to kill while shielding the

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public from the ugly details. Judicial proceedings in capital cases have been compromised by excessive proceduralism and inverted incentives that overproduce death. An alchemy of race, class, and politics generates death verdicts against the disfavoured and disadvantaged in wealth-dependent systems of criminal justice that are less and less scrutinized. All the while we forfeit reliability in criminal adjudications for speed and political expediency, with shocking consequences. For every eight people who have been executed in the United States during the modern era, one person on death row has been identified as innocent, exonerated, and released.2 This is a rate of error that shocks the conscience but not the criminal justice system or its caretakers, who seem bent on achieving executions at any cost. All is not lost, however. We have learned much from Beccaria since his work was published in 1764. His many admirers and students around the world have applied his theorem to the benefit of great societies, which have advanced even in the face of extraordinary conflict and controversy. Many of the punishments that Beccaria decried have been widely rejected as a responsible policy of government. Thoughtful citizens have come to recognize that we must measure the civility of a society by how it treats the imprisoned and reviled, not the rich and famous. These citizens have discerned that the character of punishment necessarily reflects not only the offender, but also those who are empowered to sentence, imprison, and rehabilitate. It is often said that justice is a constant struggle. Where too few struggle to achieve justice, injustice is sure to flourish. Regrettably, there is still abundant opportunity to give meaning to Beccaria’s great vision. In the name of punishment, there are imperilled death row prisoners in the United States who face asphyxiation, lethal injection, electrocution, and firing squads by state governments. Around the world prisoners are falling prey to torture, dismemberment, barbaric deprivations, and other cruelties that undermine the advance of humankind. Fortunately, across the globe there are also scholars, advocates, activists, lawyers, policymakers, students, clergy, teachers, and ordinary citizens who are preparing anew to confront these punishments and the despair that they create. Beccaria’s text is

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a great place to start in this struggle, for not only has it shaped much of what is right about modern punishments, it continues to indict what remains wrong. Bryan A. Stevenson Professor of Law, New York University Executive Director, Equal Justice Initiative

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Preface aaron thomas

Lauded as the ‘first evangelist of reason’ by Jeremy Bentham,1 and yet reviled by some of his contemporaries in the eighteenth century for the arguments advanced in his brief book On Crimes and Punishments, Cesare Beccaria was known by his admirers and detractors alike for his attack on the extant systems of criminal justice and the inequitable and unjust structures of aristocratic and clerical privilege that he believed thwarted human happiness and progress. At once celebrated in the salons of Paris, invited to court in Moscow, invoked and studied in the American colonies, criticized by the jurists of the ancien régime, and denounced from the cloisters in Venice, fame and notoriety came quickly for the taciturn twenty-six-year-old, who was singularly unprepared for the attention he would immediately receive. In the more than two centuries since the publication of On Crimes and Punishments, Beccaria’s name would become indissolubly linked with opposition to the death penalty and with efforts to create a more reasoned, effective, and humane approach to punishment. William Blackstone, who esteemed Beccaria ‘an ingenious writer, who seems to have well studied the springs of human action,’ drew from On Crimes and Punishments many of the theses he sustained in his Commentaries on the Laws of England, one of the most important jurisprudential texts of modern times.2 Echoes of Beccaria (and Blackstone himself) can be heard as well in James Burgh’s Political Disquisitions, in which he asserted ‘it is not the severity of punishments, but the certainty of not escaping, that restrains licentiousness.’3 Examples like these could be multiplied from a wide range of writers in many countries.

Preface

Even as jurists and reformers appealed to the towering moral authority of ‘the marquis Beccaria’ and endorsed in part or in full the criminological precepts he adumbrated, however, his legacy has been beset by a peculiar paradox. Writing in 1923, the legal scholar Coleman Phillipson declared with some satisfaction and a great deal of confidence that ‘the triumph of Beccaria’s teaching has been complete.’ Not only had Beccaria’s principles become ‘embodied in every criminal code in Christendom,’ they had ‘now penetrated into the distant Orient.’ Nonetheless, just as ‘the fame of a pioneer often becomes dimmer the more his efforts have been crowned with success,’ so too has Beccaria been largely forgotten among the latter day beneficiaries of his teachings.4 Extricating On Crimes and Punishments from this paradox is indeed a challenge for contemporary readers. Beccaria is claimed as a founding father by both the discipline of modern criminology and the abolitionist movement, but perfunctory invocations of his name in the constructions of these genealogies tend to close rather than open debate. Beccaria’s On Crimes and Punishments, although now nearly universally accepted as a ‘classic’ in penal reform, seems to be of little living interest. Part of the problem, I would suggest, has been its reception strictly as a work of jurisprudence. To be sure, Beccaria’s contributions to questions concerning law and punishment should not be underestimated. And it is only natural that jurists and criminologists would be drawn to a title like On Crimes and Punishments. But such attention, while understandable, has only served to reinforce the notion that Beccaria was first and foremost a legal theorist. To approach the text without this prejudice may allow the reader to appreciate more fully the wider range of political and social concerns that animate it. On Crimes and Punishments may be seen, thus, not merely as work of jurisprudence, but also one of political theory – a point that is argued more fully by professor Alberto Burgio in his introduction to the volume. My purpose here is to sketch the historical circumstances of the pamphlet’s production and some of the contemporary reactions to its publication. The eldest of four children, Beccaria was born in Milan, 15 March 1738, to a long-standing noble family from Pavia. At the age of eight he was sent to the Collegio Farnesiano in Parma, a Jesuit school where his

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‘sentiments of humanity’ were ‘stifled by eight years of fanatical and servile education,’ as he recalled many years later in a letter to his French translator André Morellet.5 Despite his displeasure with this institution, which was attended by other scions of the Lombard aristocracy, he demonstrated an early aptitude for mathematics (earning the nickname ‘little Newton’ from his classmates) and a talent for languages, French in particular. From 1754 he attended the University of Pavia, where he graduated with a degree in law in September 1758. Upon returning to Milan, and somewhat aimless, he joined the Accademia dei Trasformati (Academy of the Transformed) run by the wealthy Count Giuseppe Maria Imbonati. One of the many academies, reading societies, salons, and lodges that flourished in the 1700s, the Trasformati brought together some of the key figures of the Milanese Enlightenment, including the poet Giuseppe Parini and Beccaria’s mentor and friend, Pietro Verri. To gain entrance to the Trasformati, Beccaria is presumed to have written a few poems, including some rather unoriginal verses on the immensely destructive Lisbon earthquake of 1755, and a piece that lampooned a hypothetical book collector, who was interested solely in the prestige he would garner through his ownership of rare volumes of Newton, Descartes, Gassendi, Voltaire, or Racine, and who couldn’t be troubled to actually read the ‘many books piled on high / that arrived from strange faraway lands, / from Amsterdam, Paris and England.’6 Although Verri saw in Beccaria a ‘good poet,’ his verses were largely derivative of extant motifs, including Parini’s own satirical denunciations of aristocratic idleness, and demonstrated, in the opinion of at least one modern critic, ‘nothing other than how he was born for prose.’7 Fortunately for Beccaria, he also possessed – again in the estimation of Verri – an ‘energetic imagination alloyed to a deep understanding of the human heart,’ an ability to write with ‘clarity and precision,’ and an ‘intellect open to setting out upon new paths.’8 In 1761 Beccaria would embark upon such a new path when he left the Trasformati to join the Accademia dei Pugni (Academy of Fists), a circle newly formed by Pietro Verri, whose reformist goals failed to find space among the traditional literary concerns and temperate politics of the Trasformati. The Accademia dei Pugni derived its pugilistic

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moniker from the heated discussions reputed to erupt in it: ‘last summer a fable circulated widely that Beccaria and I exchanged some forceful blows to settle a debate,’ wrote an amused Verri in explanation of the origin of the group’s name.9 Unlike many other established literary societies, salons, and Masonic lodges, it had no formal statute, rigid internal structure, or secret rites. As Beccaria explained in a letter to Duke Ludwig Eugen of Württemberg, ‘we are not a society established according to a fixed and determinate plan, but a coterie’ that meets nearly every day to ‘encourage each other to carry out acts of beneficence, that is, of justice towards the unfortunate.’10 Comprised of a small group of close friends ‘brought together out of a love for study, virtue, and a similarity of condition,’ as Verri reported in 1762,11 the coterie included Pietro’s brother Alessandro, as well as Giambattista Biffi, Luigi Lambertenghi, Paolo Frisi, Alfonso Longo, Gian Rinaldo Carli, Giuseppe Visconti di Saliceto, and Pietro Secco-Comneno – most of them in their twenties and all, with the exception of Frisi (who would become active only a few years later), of noble extraction. The members drew from Roman antiquity nicknames reflecting the ambitions, character, and interests of each. Pietro Verri, for example, who seemed to be convinced that the only way to carry out reforms with any dispatch or efficacy lay in enlightened despotism, adopted Lucius Cornelius Sulla as his symbol, after the patrician general whose dictatorship introduced far-reaching reforms in the last century of the Roman Republic. Beccaria, for his part, saw in the Epicurean and cultured Titus Pomponius Atticus characteristics mirroring his own preference for solitary philosophical reflection and the quiet life of the mind.12 To the extent that the coterie had any organizing principle, it was a commitment to free debate and a common desire to contribute to the public good. Inspired by the example set by the French philosophes associated with the Encyclopédie, the group addressed many economic, agricultural, political, legal, literary, and scientific topics, with individual members producing monographs or articles intended for wider circulation, discussion, and influence. Beccaria’s first pamphlet, a study of currency problems in the Milanese state, published in July 1762, was explicit in this regard. Because ‘truth is never

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divorced from the interest of the nation,’ it was necessary ‘to tear the veil that shrouds it from the public’ and to distil the principles scattered about by other writers, drawing the fruits of the field of political economy out of the ‘silence of philosophers’ studies’ and placing them ‘into the hands of the people.’13 Such a utilitarian thrust would receive an even more explicit and broader theoretical statement in Pietro Verri’s anonymously published Meditations on Happiness (1763) – a book that has been viewed as something of a ‘manifesto’ for the group.14 The effort to foster public debate and influence policy was amplified through the group’s periodical, which was released every ten days, beginning in June 1764, a date roughly contemporaneous with the publication of On Crimes and Punishments. Named Il Caffè, it invoked the image of the coffeehouse as a vibrant public and cosmopolitan locus of enlightened discussion, where ‘anyone who wants to read can always find political newspapers,’ as well as those learned journals circulating in the wider republic of letters that ensure that ‘men who were originally Romans, Florentines, Genovese, or Lombards now will be all more or less Europeans.’15 As if to rejoin Montesquieu’s earlier sardonic swipe (voiced through the character Usbek in his Persian Letters, published in 1721) at the intellectuals of Parisian café society, who upon leaving the coffeehouses believed themselves to be ‘four times cleverer than when [they] went in,’ but who ‘do not make themselves useful to their country’ and instead ‘fritter away their talents on puerilities,’16 the inaugural issue of Il Caffè announced its intention to ‘accomplish what good we can for our country’ by disseminating ‘useful knowledge among our citizens, entertaining them, as Steele and Swift and Addisson [sic] and Pope and others have already done elsewhere.’17 Inspired by the lively essayistic style and publicly engaged English papers The Tatler and The Spectator, and with a view to encouraging the ‘spirit of reading’ and ‘appreciation for the sciences and fine arts,’ the articles published anonymously in Il Caffè were to be written on an array of topics and in an accessible style, such that ‘they could be read by the serious magistrate and vivacious damsel, by those with hardened and prejudiced minds, as well as by those more tender and

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fresh.’18 Both its format as a periodical and the vast diversity of topics addressed were considered vitally important components in a broader project to foster public discussion and promote reforms in the Milanese administration. As Beccaria himself argued in 1765, periodicals could distil, clarify, and sharpen the knowledge that one often finds ‘scattered, obscured, confused and, I would hazard to say, submerged in books swollen with an author’s self-love,’ but which produce only ‘boredom for the reader.’ If written with respect for the reader’s own intelligence and creativity, periodicals could serve as stimuli for further reflection and questioning. Rather than merely disseminating facts, they could contain the spread of the ‘thousands of errors and monstrous falsehoods’ that surround any ‘great or interesting truth.’ Even as periodicals ‘work more to destroy than to build,’ in the very act of dismantling ‘prejudices and received opinions’ they ‘edify imperceptibly.’ Moreover, since ‘agriculture, the arts, commerce, and politics’ are issues that any citizen not subject to manual labour ‘should least ignore,’ insofar as they foster new practices, ‘they can satisfy the curiosity of each individual and, as they are more universally cultivated, they will lead to the happiness of a state.’19 This was, after all, an auspicious moment for those concerned with the advancement of public happiness, for the Austrian leadership in Lombardy had shown itself to be particularly receptive to reformist ideas. The heavy financial strains caused by the War of the Austrian Succession (1740–48) and the Seven Years’ War (1756–63), combined with the ever-present threats of famine and food riots, prompted the Habsburg authorities and their ministers in Milan to search for ways to reduce the deficit, improve the economy, and rationalize the local administration. Although the impetus for social change came largely from the imperial capital, local officials were instrumental in crafting and executing reformist policies, for they had to advance Vienna’s legislative agenda and negotiate its implementation in the face of often recalcitrant opposition from the Lombard aristocracy and ecclesiastical authorities resistant to the curtailment of long-standing rights and privileges. The waves of reform initiated at the behest of empress Maria Theresa, led first by

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Count Gian Luca Pallavicini in the 1740s and later expanded upon by Count Carlo Firmian (after his appointment as minister plenipotentiary in 1759) addressed a variety of important matters, such as putting an end to the sale of public offices, an attenuation of feudal exemptions, the completion of a new cadastral survey, and the creation of a tax system at once marginally more equitable and significantly more liquid. It was at this time, and in this fertile milieu, that Beccaria traced what he called his ‘conversion to philosophy’ to a reading of Montesquieu’s Persian Letters, just one of ‘so many excellent’ French books that helped him develop those ‘sentiments of humanity’ earlier suffocated during his childhood education. Beccaria credited Helvétius’s De l’esprit with having ‘produced a revolution in my mind’ and for furnishing him with many of his ideas.20 He would study Buffon, Diderot, Hume, d’Alembert, Condillac, and Rousseau, whose Julie, or the New Heloise (1761) moved him sufficiently to name his own daughter, Giulia (born in 1762), after the novel’s heroine. Beccaria read Rousseau’s The Social Contract promptly after its publication and discussed it with Pietro Verri, as the latter reported with enthusiasm in a letter to Biffi: ‘Atticus [Beccaria] read to me some of Rousseau’s Social Contract and I was enchanted. I believe that he is the first who has dealt with the true source of the principles of the duties one man owes to another. The book cannot fail to be proscribed by Rome and to pass on to posterity.’21 Although Beccaria counted himself among the ‘true disciples’22 of the French philosophes in Milan, a number of English and Scottish writers proved influential as well, such as Hobbes, Locke, Hutcheson, and Bacon. The latter, in particular, seemed to captivate his interest. ‘I am entirely absorbed in copying some works of Bacon of Verulam, who not only ranks among the most sublime geniuses, but may also be considered the legislator of the intellect,’ he wrote enthusiastically to Biffi in the summer of 1762.23 But Beccaria did more than merely transcribe passages of interest. He put Bacon’s words to work in On Crimes and Punishments, reminding readers, with a citation placed in the opening epigraph, of the long time required for the germination of useful truths, and thus of the arduous road to real reform. This, moreover, was an idea that

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readers of On Crimes and Punishments did not fail to appreciate and comment upon in turn. Concurring with Beccaria’s realism, a reviewer of On Crimes in the Gazette littéraire de l’Europe said of the then-anonymous author: ‘This eloquent philosophe knows the human spirit altogether too well, and even more so the spirit of his century, the forces of prejudice that attack him and the inadequacy of the weapons that he employs, for him to be flattered that his book will produce in the criminal jurisprudence of Europe the reform he desires; he knows altogether too well that new truths germinate slowly, that time and circumstance alone can bring them to maturity and hasten their development.’24 Beccaria began writing On Crimes and Punishments in March 1763. The topic was suggested to him by Pietro Verri, who that same year had penned and recited to the members of the Accademia dei Pugni his own thickly ironic and acerbic attack on the defects of traditional jurisprudence.25 Beccaria benefited from the encouragement of the members of the academy, who followed and discussed his work-inprogress. Indeed, while Beccaria had obtained a degree in law, he had no particular expertise in everyday criminological practices and availed himself of the experience of Verri’s brother, Alessandro, who as a prison inspector had gained firsthand knowledge of the miserable conditions and treatment endured by the incarcerated. And Pietro himself lent his own considerable editorial hand to the project, who Beccaria had charged with producing a clean, legible manuscript from the completed draft he gave to him in January 1764. Yet, as Luigi Firpo notes, Verri’s role was not merely that of a faithful ‘copyist,’ for he reorganized the text, introduced numbered paragraphs, transposed or substituted words or sections, made stylistic amendments, and added passages – and all this presumably with the consent, tacit or otherwise, of Beccaria himself.26 In April 1764, Verri sent the manuscript to Giuseppe Aubert in Livorno, the publisher who had seen Verri’s own Meditations on Happiness into print towards the end of 1763, albeit under the cover of anonymity. In early July 1764 the first edition of On Crimes and Punishments began to be circulated, first in Tuscany, then in Lombardy. Also published anonymously, and carrying no typographical informa-

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tion other than the date mdcclxiv, the work immediately aroused speculation as to the author’s identity, even among Beccaria’s and Verri’s close associates in Milan. Many believed the work to belong to the same author as the Meditations on Happiness; and even those who knew the Meditations to be Verri’s sometimes assumed On Crimes to be his as well, a confusion doubtless aggravated by Verri’s own nebulous role in the book’s composition. Neither Verri nor Beccaria sought initially to address publicly such speculation, in part because they did not want to compromise anonymity and risk running into trouble with state or ecclesiastical censors. At most, Verri tried to satisfy the curiosity of their close friends who knew something of the book’s genesis within the Accademia dei Pugni but lacked precise information regarding its method of composition. In a letter in early November 1765 Verri stated, although in a somewhat ambiguous manner: The book is by the Marquis Beccaria. I gave him the topic, and the bulk of the ideas it contains are the result of daily conversations between Beccaria, Alessandro, Lambertenghi, and myself … Beccaria began to write some ideas down on some loose sheets of paper, and we encouraged him with enthusiasm and prodded him such that he wrote a great mass of ideas. After meals we would take walks and discuss the errors of criminal jurisprudence, we would debate and argue, and that evening he would write. But writing for him is so laborious, and costs him such effort, that after an hour he cannot take it any longer and has to stop. Piled up high as the material was, I wrote it down, some order was given to it, and a book was made.27

For those far beyond this immediate circle, however, knowledge of the author’s identity remained elusive and indeed the subject of wild speculation – and not only in Italy. Reaction to the pamphlet was swift and widespread. The Venetian Inquisition blocked the importation of On Crimes and Punishments into Venetian territory on 27 August 1764. In January 1765 the monk Ferdinando Facchinei published (anonymously) in Venice a lengthy and virulent rebuttal. In his Notes and Observations on the Book Entitled ‘On Crimes and Punishments,’ excerpts of which are included in this

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volume, Facchinei accused the still-anonymous author of harbouring pretensions to be considered the ‘Rousseau of the Italians.’ Facchinei was quick to see the potentially radical implications of On Crimes, which by uniting utilitarian criteria with a contractualist framework of political legitimation based upon the consent of free and equal men could threaten to undercut the very bases of the ancien régime, not to mention the towering position of the Roman Catholic Church as arbiter of justice and morality. For these putatively mistaken postulates, Beccaria earned the epithet ‘socialist’ from the friar – perhaps the first time that this term was ever used in the Italian language – who considered preposterous the notion that society was formed through a contract between free and equal men.28 Despite Facchinei’s characterization of Beccaria as the ‘Rousseau of the Italians,’ On Crimes and Punishments departs in significant ways from The Social Contract even as it draws inspiration from its theoretical premises. Thus, although Beccaria invokes the notion of a ‘general will,’ as the section on the death penalty makes clear, he understands this as the ‘aggregate of particular wills’ – something that Rousseau had referred to instead as the ‘will of all’ (volonté de tous) in contradistinction to the ‘general will’ (volonté générale). Viewing the two to be often considerably different – insofar as the former was concerned with ‘private interest’ while the latter ‘looks only to the common interest’29 – Rousseau reached conclusions about the limits of sovereign power quite opposite to those of Beccaria. Importantly, Rousseau had accepted the legitimacy of the death penalty, for in committing murder and attacking ‘social right,’ a malefactor ‘becomes a rebel and a traitor to the fatherland by his crimes,’ and ‘by violating its laws he ceases to be a member of it, and even enters into war with it.’30 By contrast, the individualistic inflection of Beccaria’s understanding of the social contract led to a considerably different conclusion: barring exceptional circumstances, in which the criminal constituted a threat to the very survival of the body politic, the death penalty was not to be considered a right or prerogative of the sovereign, but rather ‘the war of a nation against a citizen’ (see § XXVIII below).31 The proximity of Beccaria’s text to Rousseau’s Social Contract did not escape the attention of a reviewer in the Gazette littéraire de

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l’Europe. But while his reception of Beccaria’s book was certainly not angry, like Facchinei’s, his rather dismissive assessment that On Crimes and Punishments was nothing but ‘a collection of maxims drawn from the Social Contract’ would seem, in light of the foregoing observations and textual comparisons, to be a prejudicial and misleading assertion.32 Pointing out these subtle theoretical differences, however, seemed less vital than the defence required immediately by the rapidity and virulence of Facchinei’s critique, which was as much an ad hominem attack as it was anything else. For it threatened to open the floodgates to a broader reactionary response, involving not only ecclesiastical authorities and the Inquisition, but sovereigns who may have felt threatened by any sort of Copernican revolution in the way that political legitimacy was conceived.33 The answer to Facchinei would come, however, not from Beccaria himself, but from the Verri brothers, who quickly dispatched a lengthy rebuttal to a printer in Switzerland. ‘A monk in Venice vomited libelous accusations of heresy, sedition, impiety, and so on,’ wrote Pietro to Gian Rinaldo Carli in January 1765, and ‘a defence that will triumphantly show His Reverence to be nothing but a slanderer is currently at the presses in Lugano.’34 By the beginning of February 1765, the Verri brothers’ anonymously published response began to circulate. Adopting the voice of the still-unknown author of On Crimes, their Response to a Writing Entitled ‘Notes and Observations on the Book “On Crimes and Punishments,”’ protested with wit and irony against his accuser’s uncharitable reading, affirmed his Christian faith, and most importantly, argued – some might say in an ingratiating way – that the vision of reform advocated by Beccaria was entirely compatible with the practices of enlightened despotism then in vogue and did not therefore constitute a threat to reigning sovereigns. The need to minimize controversy, lest it rain down difficulties on Beccaria and the Verri brothers alike, was certainly a concern. In a letter to his French translator, who was challenged with a few obscure passages in On Crimes and Punishments, Beccaria confessed to some trepidation during its composition. ‘While writing my book,’ he explained, ‘I had before my eyes the examples of Galileo, Machiavelli, and Giannone,’ all of whom endured various degrees of persecution,

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torture, and imprisonment for having written things deemed contrary either to Church or state. Having ‘heard the clanging chains of superstition and the howls of fanaticism suffocating the faint moans of truth,’ Beccaria felt ‘compelled to be obscure and to envelop the light of truth in a pious mist,’ for he merely ‘wanted to be a defender of humanity without being its martyr.’35 If Facchinei’s immediate assault lent credence to his earlier preoccupations, still more reason to worry would come on 3 February 1766, when the Roman Inquisition placed On Crimes and Punishments on the Index of Prohibited Books, a development that prompted Beccaria to request Aubert to remove his name and any other possible identifying information from the cover of the new edition that was about to be released. Aubert conceded, with some reluctance, and in March 1766 the fifth edition was printed without Beccaria’s name and with a falsified place of publication.36 But even if the banning of books presented some measure of risk to any given author, such prohibitions would not necessarily deter readers or compromise favourable judgment. For just as intellectuals conversed in that extensive republic of letters that spanned Europe, so too the idea of an independent public with its own opinion was beginning to take shape. Indeed, for the publisher Aubert it mattered little whether a book was condemned by the Roman Inquisition. ‘It would not be the worst thing in the world,’ he remarked, for ‘in Rome they prohibit everything that is not Bellarmine and the likes.’ More importantly, Aubert added, ‘it is not Rome that decides on the merits of a book with its prohibitions; it is the public that decides.’37 Nonetheless, even among Beccaria’s friends favourable opinion did not condense immediately around all of his arguments. Thus, even as Gian Rinaldo Carli admired the ‘power, talent, and courage of its brilliant author,’ and celebrated On Crimes and Punishments as the ‘first book that has been written in Italy with verve and independence on behalf of humanity,’ he protested that ‘it is a great mistake to believe that all men are equal in disposition, instinct, and will, and equally capable of virtue, moderation, and reasonableness, when in appearance, facial features, voice, and body there is so much variety and difference.’38

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In Tuscany, while reaction to On Crimes and Punishments was generally favourable, there was nonetheless some confusion. Writing to Beccaria in April 1766, the lawyer Cosimo Amidei reported that criminal lawyers in Tuscany had become interested in On Crimes and Punishments based on knowledge of the title alone. Hoping to find in it a ‘criminal system that responded to their aims,’ they found rather a ‘political system’ and were deceived in much the same way as they were when they looked to Montesquieu’s The Spirit of the Laws, convinced that they would find ‘unique doctrines useful to their legal cases.’ Whether or not On Crimes and Punishments was ‘beyond their comprehension,’ as he remarked with a note of condescension, the reaction in Tuscany was of little concern for Amidei. Rather, it was the spectre of Facchinei’s Notes and Observations that exercised him. ‘It deserves to be punished with infamy, just as it has already been punished in the tribunal of reason,’39 Amidei asserted, referring elliptically to the Verri brothers’ recently and anonymously published defence. However slow, quick, or confused Italian public opinion at large may have been in its reception of On Crimes and Punishments, the reaction beyond the Alps was decidedly impressive. If the initial review of Beccaria’s book in the Gazette littéraire de l’Europe was restrained, it was only a matter of months before no less a luminary than Jean d’Alembert took up his pen to praise On Crimes and Punishments in a letter to Paolo Frisi. Thanking Frisi for having sent him a copy of Beccaria’s book, d’Alembert effused that upon reading it he passed the book around to ‘several good philosophes here and they all returned the same judgment as I,’ namely, that despite the volume’s small size, ‘it was enough to assure its author an immortal reputation.’40 Indeed, the towering figure of Voltaire, who had become interested in matters of crime and justice in the wake of some infamous cases in the French courts, would take up On Crimes and Punishments with some enthusiasm, writing in 1766 a lengthy commentary on the book. This essay, which is included in the present volume, was often printed together with On Crimes and helped to bring Beccaria’s book an even wider readership. Towards the end of 1765 a French translation was completed, carried out by André Morellet, a writer associated with the Parisian philosophes and contributor to the Encyclopédie. Morellet, however, took

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the liberty to radically reorganize the book, transposing entire paragraphs or particular sentences within paragraphs. The aim was to turn On Crimes and Punishments, which in the original Italian possessed the immediacy of a political pamphlet, into a systematic juridical treatise, as the very title of the French edition suggests. Now a Traité des délits et des peines, Morellet’s version seemed to respond more fittingly to the particular exigencies of the political milieu within which Parisian philosophes found themselves. While Diderot and Melchior Grimm strongly dissented from Morellet’s transfiguration of the text, Beccaria himself seemed to accept it as an improvement over his own, suggesting moreover that his work had ‘lost none of its power in French translation, except for those discrepancies that necessarily arise between one language and another.’41 Beccaria’s praise, however, was probably as much a professional courtesy as anything else. For despite his promise that he would have adopted Morellet’s ordering in subsequent Italian editions, Beccaria would never in fact do so. Beccaria would soon be invited to Paris, where he went with great reticence and anxiety, accompanied by Alessandro Verri. Once in Paris, in October 1766, the Italian duo met with the leading lights of the philosophical scene, including Diderot, d’Alembert, d’Holbach, and Morellet himself. But at the moment of what should have been his coronation as the sort of cosmopolitan intellectual he had so admired from afar, Beccaria bolted. Overwhelmed with anxiety and with nostalgia for his wife and home, he cut his sojourn short, returned to Milan, and withdrew from the limelight in favour of a quieter existence. Disgusted by his infantile performance in Paris, and doubtless still jealous of the European fame he nonetheless continued to enjoy, the Verris broke with Beccaria, who was content to set out upon his own path, at once more humble and pragmatic. Accepting an appointment first as a professor of political economy, then as a functionary in the Habsburg administration, Beccaria would remain anchored in Milan from this point forward, despite appeals from abroad for his services. Catherine II, the empress of Russia, had summoned him as early as 1766 to assist in the reform of the Russian penal code, a position both d’Alembert

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and Morellet dissuaded him from taking. Even if little was accomplished legislatively according to Catherine’s ‘Instruction’ (1767) to the commission charged with drafting legal reforms, in this document there are nonetheless clear echoes of Beccaria’s discussions of the death penalty, torture, and the need for proportion between crimes and punishments. Even as Beccaria attempted to evade the attention lavished upon him, others would continue to take an interest in him and his famous pamphlet. Translations, often based upon Morellet’s reorganized French version, would appear apace in German, Swedish, Russian, Spanish, and English. If jurists of the French ancien régime such as Muyart de Vouglans and Jousse, subjected On Crimes and Punishments to vociferous critique, warning of the risks Beccaria’s thought presented to established political and religious practices, the reaction in the North American colonies was decidedly more favourable, where he was read and quoted with enthusiasm by John Adams, Thomas Jefferson, and Benjamin Rush, among others. In Italy itself, the Duke of Tuscany, Leopold II, would abolish the death penalty in 1786 with legislation manifestly inspired by Beccaria’s theses.42 By this time, however, Beccaria was firmly ensconced in the machinery of the Milanese state. Although he never wrote another masterpiece, as many expected or hoped he would, he nonetheless trained his intellect on a variety of practical problems of administrative and economic reform, producing a considerable quantity of government reports and policy recommendations. While this production generally had very little to do with the themes he so boldly confronted when he was filled with the ‘iconoclastic fury of youth,’ as Alessandro Passerin d’Entrèves would later put it, the seriousness of this work should not be discounted.43 For even in this overly formal prose, laden with bureaucratic jargon and genuflections, one finds an occasional glimmer of Beccaria’s former brilliance. The piece that concludes this volume serves as a case in point. Taking up the issue of capital punishment once again, this time at the behest of his employer, Beccaria would not retreat from his former opposition to this form of cruel and useless punishment. To the contrary, he added yet another arrow to the abolitionist quiver: the idea of irrevocability.

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The invitation to revisit Beccaria today would seem to require little justification either in academic or practical terms; whether one chooses to read On Crimes and Punishments for its intrinsic interest or with a view towards extracting arguments for political programs, there is something to be gained. Nonetheless, some justification may seem necessary with regard to this specific volume itself – the translation offered and the ancillary texts supplied. The popularity of Morellet’s French translation, and subsequent counterfeit Italian editions based upon it, had one notable effect, beyond the considerable work these volumes did in gaining a wide audience for arguments that may on their face seem arcane: it established this reordered version as the canonical Beccaria text in many countries, Italy included, despite the early opposition of some. Indeed, besides Diderot and Melchior Grimm, the first (unnamed) English translator complained that Morellet had ‘assumed a right that belongs not to any translator, and which cannot be justified.’ Although Morellet’s ‘disposition may appear more systematical,’ he continued, ‘certainly the author hath as undoubted right to the arrangement of his own ideas, as to the ideas themselves.’44 And yet even this translator admitted to permitting ‘a paragraph or two’ to stand where Morellet left them. Fidelity to Beccaria’s original text could not therefore be automatically assumed, and English translations have often been based upon some version of Morellet’s ordering.45 It was only in 1958, with Franco Venturi’s advocacy of the so-called Italian fifth edition of 1766, that some measure of fidelity was restored, for it was, Venturi argued, the ‘last edition for which there exists explicit evidence of the author’s participation in the revision of the text.’46 Venturi’s choice was subsequently adopted by Gianni Francioni in his authoritative edition – and it is upon this edition that the present translation is based.47 Although two English translations based upon the authoritative Italian edition already exist, ours differs from them in important if subtle ways.48 For example, we have chosen not to standardize certain of Beccaria’s terms – most notably, his shifting use of contractualist terminology, such as ‘social contract’ and ‘social pact’ – preferring

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instead to leave these lexical discrepancies as traces of the philosophical influences that inform the text. Readers interested in the provenance of Beccaria’s arguments, thus, may be better able to trace these echoes back to earlier discourses elaborated by figures such as Hobbes, Locke, Rousseau, and so on. Moreover, we have tried to domesticate Beccaria’s prose as little as possible; while breaking his sometimes-overwrought paragraphs into shorter, crisper sentences was an ever-present temptation, we have resisted it as much as possible. In doing so we believe that we have preserved something not only of the style and rhythm of his prose, but what may have been deliberate forms of subterfuge as Beccaria attempted to ‘envelop the light of truth in a pious mist.’ But our concern here moves beyond ecdotic and stylistic questions; we seek more broadly to offer a volume that addresses issues that have been underappreciated in what few studies there have been of Beccaria in the English-speaking context. When Beccaria’s text has not been caught in the thicket of interminable questions concerning authorial authenticity, it has often been viewed rather narrowly as merely a work in criminology that sought to establish certain procedural criteria for the accused and to establish punishments that fit the crimes committed, with the death penalty being virtually excluded from consideration for its ineffectiveness as a deterrent. Indeed, Beccaria’s worldwide fame is largely owed to his position as the first writer to submit a sustained and influential argument against capital punishment – an argument that had profound practical consequences in his own day for the abolitionist cause. To be sure, this is no small achievement, and contemporary readers’ efforts would be repaid well by revisiting these arguments and others, such as Beccaria’s incisive case against the use of torture. But the focus on capital punishment and penology has overshadowed the irreducibly political nature of his text. As Professor Alberto Burgio argues in the Introduction to this volume, Beccaria’s pamphlet was not merely a work in criminal jurisprudence, but a piece of combative political philosophy situated in the reformist battles of his day. To recall Cosimo Amidei’s felicitous formulation quoted above, Beccaria’s book contains a ‘political system.’ To better appreciate this

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dimension of On Crimes and Punishments we have included a number of ancillary texts that provide a glimpse into the controversies of the period – not just debates over the rights of the accused, then, but pitched polemics over the separation between positive and ecclesiastical laws, between sociological facts and religious norms, and the role that temporal powers do or ought to play in the regulation of human affairs. These issues emerge forcefully in the exchange between the Dominican monk Ferdinando Facchinei, who swiftly attacked Beccaria’s book, and Pietro and Alessandro Verri, who in turn defended the young philosophe. They can be read too, finally, in Voltaire’s commentary, which may be seen as more than simply a eulogy to the criminological components of Beccaria’s book, even as he may have read it in its more geometrical form as a juridical ‘treatise.’ For Voltaire’s reflections are inscribed unambiguously in his broader and unyielding campaign against fanaticism, a ‘disease’ he believed to be ‘almost incurable’ once it has ‘cankered the brain’ and for which ‘there is no other remedy’ than the ‘spirit of free thought, which spreading little by little, finally softens men’s customs.’49 It is in this light that we may read Voltaire’s praise of Beccaria. ‘You work on behalf of reason and humanity,’ he wrote, ‘two sisters’ long knocked down and knocked about. But in Beccaria’s work, they have ‘finally begun to walk and talk,’ even as ‘fanaticism howls.’ Amid the din of the latter, then, let us turn to On Crimes and Punishments in an effort to discern the voices of the former, for as Voltaire appreciated ‘we fear being human, as much as we ought to fear being cruel.’50

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Introduction: Between Law and Politics – The Idea of Equality in On Crimes and Punishments alberto burgio

The Realm of Politics in On Crimes and Punishments The history of critical interpretation of Beccaria’s masterpiece has been marked by no small amount of irony – at least until 1958, when Franco Venturi’s critical edition of the text prompted a change in direction in Beccaria studies – for it has been read primarily, if not exclusively, as a classic text of garantismo in criminal law, a theory that attributes great importance to the legal and civil guarantees of individuals.1 This perspective seemed plausible, given the principal polemical targets of On Crimes and Punishments (in particular, the practice of torture, the death penalty, and the arbitrariness of the courts2) and some of the fundamental goals of the work (the secularization, rationalization, and codification of the law, the tendency towards decriminalization, and the abolition of privileged courts of law). Beccaria’s struggle seemed to dovetail neatly with the Enlightenment currents of legal reform,3 and certainly constitutes, as Jacques Godechot notes,4 the principal reason for his success in the France of the Calas, the Sirven, and the La Barre. And yet, in this reading the true nature of the text – its essence – remained in the shadows. On Crimes and Punishments is, above all, a book of political struggle and, on a strictly theoretical level, a work of political philosophy. The political nature of the text can be appreciated not only through the mediation of legal discourse, but directly and unfiltered. To begin with, we might recall the polemic against ‘political idleness’ (§ XXIV), in which echoes can be heard of the attack that Alfonso Longo had launched a short time prior in the

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pages of Il Caffè against a form of hereditary transmission that was seen as the cause of economic stagnation, decadence, and iniquity.5 Or we might recall Beccaria’s section on honour and the celebration of the ‘despotism of the laws’ (§ IX). Beccaria’s garantismo – his commitment to defending legal guarantees for citizen and ‘criminal’ alike – is never separated from a broader discourse on society, from a critique of the existing social structures, or from a concerted effort to construct a better political order. It is in light of these considerations that we must read Beccaria’s definition of himself as a philosopher – a definition shared by his contemporaries and upon which he insisted repeatedly. One of the possible meanings of this term certainly has something to do with the logic of Beccaria’s discourse: it confronts the specific question of criminal legislation (in particular, the relationship between crimes and punishments) by developing the preliminary outline of a comprehensive theoretical framework. Such a framework would enable the conceptualization of the philosophical problem of politics as critics of his century had understood it: that is, as a problem of legitimacy. At play here is an imperative of Beccaria’s time, and it is seen in the deprecation of the old and the repudiation of a purely technical form of knowledge. An analysis of society must begin with a philosophical anthropology; it must start from the study of ‘human nature’ and the constraints it imposes – in this case, the impetus to happiness and the repugnance for suffering. Locke and Condillac, mediated by Helvétius and Rousseau, are decisive in the development of a ‘practical philosophy’ with certain Stoic undertones. This philosophy, insofar as it adds something original to the legacy it comes from, accords pain a central role as an essential cause of volition and action.6 It is upon these premises that the central theme of the political philosophy in On Crimes and Punishments is developed: its specific utilitarian dimension. The natural condition of ‘sentient beings’ influenced by pleasurable or painful impressions is seen in the primacy of happiness as an essential goal of human action: a happiness that – by enabling the development of a rational science of government, a politics ordine mathematico demonstrata – is translated, in turn, into the greatest objectively measurable utility. A number of consequences derive from this. On a moral level, virtue and vice are defined in relationship

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to the utility or the harmfulness of given actions. On a political level, the implicit imperative that derives from this – working to maximize the surplus of utility for individuals and society – gives rise to the conception of laws as ‘useful pacts’ (§ III) and of what is ‘just or unjust’ politically as ‘useful and … harmful to society’ (To the Reader). On a legal level, the result is a definition of crimes as ‘harm’ (§ VII) and punishment as a means to prevent further harm (see § XII). And lastly, on the level of argumentative style, the esprit mathématique of Beccaria’s text manifests the search for a rigorous conceptualization of the political problem in terms that can be employed in a discourse comparable to a scientific theory. Utility between the Greatest Number and Universality Behind the philosophical anthropology, politics is what guides Beccaria’s discourse. Certainly, utilitarianism is made to carry the weight of the philosophical framework of On Crimes and Punishments, and it does so in a way that, despite abstract theoretical schemes, is not incompatible with the repeated references in the text to contractualist themes; the bond of utility does not prevent the pact but, as with Rousseau, permeates its terms and gives them a structure that is consistent with the assumption of the rational egoism of individuals.7 Nevertheless, we are led immediately to a serious theoretical problem, one that has important implications at the level of politics. To determine the legitimacy of political authority we must look only to the happiness – that is, liberty and security – that its actions were able to produce. ‘All good legislation,’ Beccaria asserts, ‘is the art of guiding men to the greatest happiness, or to the least unhappiness possible’ (§ XLI). And to attain this, individuals renounce part of their original liberty and promise to obey the sovereign and its laws. But how should this principle be understood concretely? The injunction to maximize the sum of the algebraic equation between good and harm does not contain in itself any indication of the criteria of allocation of the good produced, which could quite easily be awarded to a single member of society and still be consonant with the principle of utility. The problem of the distribution of goods can be resolved only

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on the basis of a deontological moral principle, and thus of a principle that is essentially different from the principle of utility. In Beccaria’s case, we are immediately able to exclude a monopolistic or oligopolistic interpretation of the principle of utility. The Introduction to On Crimes and Punishments asserts clearly that the ‘dispassionate student of human nature’ must distil ‘the actions of a multitude of men’ in order to promote the ‘greatest happiness shared among the greatest number.’ This should be of no surprise, given that the principle that would become the cornerstone of classical utilitarianism made its way into Beccaria’s thinking passing from Hutcheson’s Inquiry through Helvétius’s De l’esprit.8 And for Helvétius there can be no doubts as to the way to proceed in a situation in which the ‘class of peasants, which alone constitutes two-thirds of the nation, is at the point of starvation’9: ‘justice consists in the implementation of actions useful to the greatest number.’10 The same can be said of Beccaria, who adopts a ‘democratic’ criterion of distribution of social utility. Nonetheless, this quick answer does not do full justice to Beccaria’s intentions. A perhaps even more complicated problem remains: what does he mean by the ‘greatest number’? We must clarify whether, as some are often naturally inclined to believe, Beccaria is alluding statically to the simple majority of the population, embracing in this way the majoritarian logic generally accepted in matters of procedural decisions, or whether he is referring rather to a dynamic understanding of the principle that looks to the greatest number possible according to circumstances, generating an obligation on the part of the political authority to promote an increasingly general equalization of the actual conditions of the members of the collectivity. There are many clues that lead us to deem improbable the notion that Beccaria’s idea of the greatest number corresponds to the static understanding that refers to the majority of the population. Rather, it seems more plausible that Beccaria’s objective is indeed the greatest happiness of each individual. It seems, in other words, that the ‘principle of the greatest happiness,’ conceived in a dynamic way in On Crimes and Punishments, refers to the greatest number possible, and therefore that the ultimate objective is equality, however it may be conceived. There are two sets of issues that lead us in this direction.

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To begin with, if we consider a few external clues with regard to On Crimes (assuming that such clues are admissible), the positions of other writers contributing to Il Caffè, and the entire production of the coterie gathered around the Accademia dei Pugni, we may discern a certain textual unity – a sort of hypertext. The writers of Il Caffè, with whom Beccaria maintained close relationships of intellectual collaboration, were unanimous in giving the basic premise of utilitarianism a universalistic inflection. ‘Just,’ Alessandro Verri declares, are those laws ‘that seek the widest utility of the nation.’11 For Alfonso Longo, the ‘public good’ consists in the ‘greatest happiness possible achieved by means of the greatest equality possible.’12 Pietro Verri echoes these thoughts shortly thereafter: ‘public happiness means the greatest possible happiness shared by the greatest number possible.’13 Indeed, Verri had already clarified this idea in his Meditazioni sulla felicità (1763): ‘The goal of the social pact is the well-being of each individual which comes together to form a society, and this amounts to public happiness or rather the greatest happiness possible achieved by means of the greatest equality possible.’14 It is clear that Beccaria, for his part, has similar ideas in mind. If in Beccaria’s ‘Frammento sugli odori’ the ‘public good’ consists in nothing other than ‘the greatest sum of pleasures shared equally by the greatest number of men,’15 his Elementi di economia pubblica defines the sovereign as the ‘just and equitable distributor of public happiness,’ where the latter is understood as the ‘happiness of all those individuals who are its subjects.’16 Beccaria’s On Crimes and Punishments, is fully consistent with these principles, presenting a universalistic framework that – as we will see – offers elements of social criticism of great interest. ‘False’ is the ‘idea of utility’ that ‘separates the public good from the good of each individual’ (§ XL) because – as he had already stated in the first paragraph and in the Introduction – the ends of the social contract are the ‘good of each individual’ and ‘prudent laws’ that make the benefits of associated life ‘universal.’ In § III the reciprocity of political obligation is then recognized as the reason that it is in the ‘interest of all that the pacts useful to the greatest number be observed’ – an assertion that would be clearly contradictory if greatest number were understood as a simple majority of the population

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(which we referred to above as the static interpretation of the principle of utility). But it is above all in § XXVI that the question seems answered in a universalistic way with the most clarity, for here the difference between ‘domestic morality’ and ‘public’ morality is that the former ‘teaches that beneficence should be limited to a small number of persons’ while the latter seeks to extend it ‘to every class of men.’ Social Criticism and the Critique of Law and Equality Having clarified the particular meaning of the basic principle of Beccaria’s utilitarianism, it is worthwhile to go a step further and inquire into the consequences for social criticism of the universalistic inflection of the principle of utility found in his pamphlet. As Franco Venturi’s important Italian edition of On Crimes and Punishments suggests,17 and the subsequent publication of Beccaria’s letters amply documents, the depiction of Beccaria as a ‘defender of humanity’ is a recurrent theme in the accounts of his contemporaries and in the discussions that accompanied his pamphlet’s growing fame. It would be wrong, however, to dilute this appraisal by viewing it as a generic form of humanitarianism. Running through On Crimes and Punishments is a perception of the seriousness of the social question. And it does not seem inaccurate to suggest that the fundamental claims pertaining to the battle to abolish torture and the death penalty spring from this perception even more so than from the inspiration to safeguard individual legal and civil rights that undoubtedly animates Beccaria’s text. In other words, Beccaria is not Voltaire, much less Diderot. With them he shares fully an aversion to the ‘tyranny of arbitrariness,’ an acute sensibility for the organic ties that bind the judiciary to the dominant reasons and interests in the institutions of the ancien régime. But he goes beyond this. Beccaria’s objections are always motivated by the need for social justice, which far from obstructing the development of notions pertaining to legal guarantees, suffuse the latter with a particular tone. The urgent need for social justice is what gave rise to that passion that immediately struck readers of On Crimes and Punishments – and that may have rankled the rigorous and methodical mentality of the philosophes, or at least of the influential d’Alembert, whose support of

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the Abbé Morellet helped to steer the transformation of Beccaria’s text into a more systematic treatise. Apart from the particular aspects of the theory, it is precisely the acute sensibility for the social question, however, that constitutes the most conspicuous legacy that unites Beccaria with Rousseau. Take, for example, two crucial moments in Beccaria’s argumentation that are both different and apparently unrelated: the recurring allusion to the social causes of crime (an aspect of extraordinary modernity that seems to have been too rarely appreciated by readers of Beccaria) and the emphasis on the generality of law. The claim for social causes of delinquency leads even to a defence of theft (a crime born of poverty and desperation among those for whom the right to property has left them with nothing but the barest existence)18 and an aggressive call for social controls on property. As Beccaria argues in Elementi di economia pubblica, respect for the right to property is subject to two conditions: ‘One is that everyone is equal in property, that is, that there is no property that is more or less subject to the laws, and thus that the laws that limit such property be universal, either against or in favour of everyone; the other is that the established laws do not impede or degrade the use of such property, which has been bestowed to each individual for the benefit of each.’19 With regard to the call for general laws, we see opposition to the ‘spirit of exception’ that animates the most vivid Enlightenment polemics against privileges and iniquities. But in Beccaria there is more – and his argument is sustained by something else. There is awareness that the establishment of general laws inevitably brings with it a universalization of the ‘benefits’ of social life, which from the very Introduction of On Crimes and Punishments are seen as the essential goal of ‘provident laws.’ In this way, we return to the idea of a progressive equalization of the material conditions that was implicitly evoked by the basic principle of Beccaria’s utilitarianism, and that we may now take as the keystone of a truly general program of political and social reform. The Question of Merit and the Role of the Enlightened Despot It would clearly be excessive to claim that On Crimes and Punishments contains a fully developed model of society. It is nonetheless true that

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the critiques of law and the administration of justice advanced in the text are situated (and can only be understood) within a framework of principles of justice that seriously call into question Beccaria’s (and Pietro Verri’s) relationship to the liberal tradition. We shall limit ourselves here to one of the crucial questions of the eighteenth-century debate – the argument concerning merit. There are several assertions in On Crimes and Punishments with regard to the value of economic initiative and of the right to enjoy the fruits of such initiative without undue interference by the public administration. We may recall, for example, the important section on ‘idlers,’ which contains a bitter polemic against those who do not ‘contribute to society either through labour or wealth.’ On the contrary, it is necessary to assist the development of ‘labour and industriousness’ and the silent ‘war of industry,’ waged with skills, will, and the spirit of initiative (§ XXIV). It is on this basis that Beccaria participates in the Verris brothers’ struggle to root the ‘spirit of commerce’ in the Lombard aristocracy. This entails the suspension of noble status (far dormire la nobiltà), as Alessandro Verri writes in Riflessioni sull’opinione che il commercio deroghi alla nobilità, which is one of the most unrelenting anti-aristocratic texts of the coterie of the Accademia dei Pugni. The new society must be informed by other values, most importantly the real merit of each individual. The exercise of one’s capacities is the premise for the development of a nation’s wealth and the effective pursuit of the general interest. From this standpoint, On Crimes and Punishments is in full accord with the beliefs of the most dynamic economic segments of the Third Estate, who were confident in their entrepreneurial skills, intent on defending the achievements of commerce and the exploitation of landed properties and financial activities, and wished to erect a sturdy political power upon these bases. The Milanese philosophes appear thus as classical representatives of that part of the enlightened and progressive aristocracy that accepted the challenge of transition (and the not-so-exalted origins of some of them may have been significant: Beccaria’s familiy, in particular, was conferred noble status – thanks to a falsified genealogical tree – only in 1759, when the twenty-something Cesare had already graduated with a degree in jurisprudence

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from the University of Pavia). The ancien régime was nearing its demise. The future belonged to industry and to accumulation arising from new forms of production; concrete attitudes were required, and expectations based solely on the inheritance of wealth and privileges were no longer acceptable. It is undeniable that Beccaria – and with him Longo, the Verri brothers, and others from Il Caffè – yearns for the establishment of a dynamic and productive class, that in calling for liberty he means, above all, freedom of enterprise, and that he looks with disdain and indignation both at the restrictions imposed by archaic privileges and the laws that protected them. In this respect, Beccaria seems to be aligning himself with an ‘anti-Rousseauian’ notion of social change largely consistent with the views held by many in the philosophical ‘party,’ from Diderot in the Observations and Mémoirs written for Catherine II, to d’Holbach, an advocate of a nouvelle noblesse of talents. It would be incorrect (and his subsequent evolution is certainly testimony of this) to attribute to Beccaria different intentions – to read in his text a plebeian radicalism that is not and could not be there. And yet the denunciation of iniquity and of violence that one finds throughout On Crimes and Punishments entails much more: it contains a theoretical surplus that it would be a mistake to overlook. We have already mentioned the dynamic character and the universalistic imprint of Beccaria’s utilitarianism. These elements are developed in a general framework that is surprisingly radical. Let’s take one example from § XXI, which constitutes one of the harshest antiaristocratic polemics. Here Beccaria considers the question of legitimate inequality: I will not examine here whether this hereditary distinction between nobles and commoners is useful in government, or necessary in a monarchy, whether it really constitutes an intermediary power that limits the excesses of the two extremes, or whether it does not rather create a class that is a slave to itself and to others, and restricts the circulation of credit and hope to a very tight circle, similar to those fertile and pleasant little islands that stand out in the vast and sandy deserts of Arabia. Nor shall I examine whether, supposing it to be true that inequality is

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inevitable or useful to society, it is equally true that this inequality should obtain between classes rather than individuals, whether it should be limited to one group rather than distributed throughout the body politic, or whether it is self-perpetuating rather than continually renewed and destroyed.

These are extraordinarily bold assertions. The only inequality allowable is that between individuals, not between classes. This clearly means envisioning a society that is individualistic, competitive, and atomistic (recall the attack launched in § XXVI against the ‘spirit of the family’ and his conclusion that the ‘republican spirit’ ought to invade even the ‘domestic walls,’ a claim that transforms the family itself into a society premised on convention). But it means also to theorize – at least implicitly – the possibility of surmounting the social division into classes. Today, it is of course easy to note the naivety and the fundamental incongruence of such a position. The critical analysis of the economic logic of modern society was to show shortly thereafter (in a certain sense already with Hegel) the inconsistency of a hypothesis that anticipated the demise of the division into social classes while at the same time maintaining or even developing the capitalist character of the productive system. But, although it may be weak from a theoretical standpoint, the prospect evoked in On Crimes and Punishments retains entirely its significance and symbolic value, and appears as the clear reflection of a critical radicalism that is difficult to overestimate. But if this is the objective, how are we to proceed concretely? What political instrument does Beccaria see as capable of pursuing this end? Even if somewhat schematically, we may note that between the seventeenth and eighteenth centuries there were two main approaches to addressing social contradictions – approaches that even today are considered distinct. On the one hand, there are those who discern an essential harmony that is ensured by mysterious mechanisms; on the other, there are those who deem decisive intervention by the sovereign to be indispensable. Beccaria belongs to the latter group. The political program advanced in On Crimes and Punishments takes shape on the basis of these premises. The corruption of

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the times requires extreme measures, on a par with the evils that are present. If the future is to see the ‘republican spirit’ – liberty and equality – govern the community,20 and if the authority of the laws is to be sovereign in every place in society and follow the citizen in his every movement ‘like a shadow follows a body’ (§ XXXV), then entrusting oneself to the ‘despotism of a single individual’ appears to be the only route to salvation – the only antidote against the ‘despotism of the many’ that thrives inexorably in the shadow of every polyarchic system. In this regard, we might consider another revealing passage: When a fixed code of laws, which must be observed to the letter, leaves the judge no other task than to examine the actions of citizens and to judge whether or not they comply with the law as written, and when the norm defining the just or the unjust, which must guide the actions of the ignorant citizen as well as those of the philosopher citizen, is a matter not of controversy, but of fact, then subjects are no longer exposed to the petty tyrannies of many men, that are more cruel the smaller the distance between the individual who suffers and the individual who inflicts. They are by far more fatal than the tyrannies of a single person because the despotism of many can only be curbed by the despotism of a single individual, and the cruelty of a single despot is proportional not to his power, but to the obstacles he faces. (§ IV)

It is worth noting, however, that Beccaria is not alone in advancing these arguments. In reiterating the inadequacy of an assembly-based administration of political power when confronting the demands imposed in times of crisis, On Crimes and Punishments speaks again in the name of an entire intellectual ‘party.’ Pietro Verri, in particular, does not tire in repeating this idea, to the point of making that axiom the very fulcrum of his political thought. ‘No one has ever seen,’ he writes in Economia politica, ‘any class of many men assembled collegially that has been able either to pursue or attempt any reform.’21 The fact is, he adds in Discorso sulla felicità, that ‘the works of a man who acts alone can be complete, and often prodigious and sublime; the works planned by many men in concert, who have joined

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together with equal powers, are always defective and inconsistent.’22 Already, in February 1769, in a letter to his brother Alessandro, he writes: ‘The only thing I know for sure is that the gatherings of many men are not, nor will they ever be, a means to devise a reasoned and praiseworthy reform.’ As often happens when he is entertaining similar lines of reasoning, the name of Machiavelli pops into Pietro’s mind: ‘I do recall, in fact, that Mr Niccolò says in the third book of the Storie [fiorentine] that “most men are better suited to preserve a good order than to discover it for themselves.”’ And again, ‘the same thing applies when it comes to reforms that one might wish to make through councils’; whether one likes it or not, ‘a dictator is required to carry out reforms, not senators.’23 Montesquieu is farther away than ever – his celebration of the nobility and the intermediary bodies summarily rejected. In an article in Il Caffè, which is necessary to keep in mind when reading On Crimes and Punishments, this approach attains its clearest formulation. To lead a nation back to its principles, the intervention of a despot is necessary – the assertion of ‘absolute will, independent of anyone.’ Provided that it is ‘temporary,’ despotism ‘properly understood’ is ‘useful’ to promote the goal of a government of laws.24 Pietro employs the same surprising expression from On Crimes and Punishments – ‘despotism of the laws.’ These may be taken as the first instances in which the term ‘despotism’ is seen in a favourable light. Coming to Terms with Montesquieu At this point it is obvious that Beccaria must come to terms with Montesquieu, the highest authority in philosophical discussions on laws and rights, and the greatest advocate of a moderate conception of politics in which the prejudicial rejection of change gives rise to an apology for the feudal order and the polyarchic structure of the Estates. This confrontation runs through the entire scheme of On Crimes and Punishments, involving one by one the conception of a legitimate social order, the political method suitable for promoting and maintaining it, specific themes in penal law, and individual legal guarantees.25

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‘Nothing could be more dangerous,’ we read again in the critical fourth paragraph, ‘than following the popular maxim whereby it is the spirit of the law that must be consulted. This is an embankment that, once broken, gives way to a torrent of opinions’ (§ IV). It is true that this statement appears in the context of an argument against judicial discretion in support of the theory of legal syllogism, and that it seems to echo a passage in the The Spirit of the Laws that recognizes the power of a judge to ‘seek the spirit’ of the law only when the law is not ‘precise.’26 Montesquieu does not seem to be called into question here, nor does On Crimes and Punishments spare praising him in this regard. Does not the immense work of the président provide an inescapable lesson – the very source of any reflection on jurisprudence, the law, and justice? ‘The immortal President de Montesquieu has dealt cursorily with this subject,’ Beccaria writes in the Introduction, and ‘indivisible truth has compelled me to follow the shining footsteps of this great man.’ This is not simply a ritual homage to an undisputed authority, for whom not even the most hostile critic could fail to show respect. After all, Beccaria is indebted to Montesquieu for the most important principle regarding penal law expressed in On Crimes and Punishments, namely, the idea that ‘every punishment that does not derive from absolute necessity is tyrannical.’27 Doesn’t The Spirit of the Laws already contain a discussion, echoed in Beccaria’s text, of the greater efficacy of preventive intervention rather than a subsequent exercise of jurisdiction – hence, the particular attention the ‘good legislator’ must devote to the construction of moeurs?28 And wasn’t it Beccaria himself who claimed that he was ‘converted’ to philosophy in 1761 after reading Montesquieu’s Persian Letters?29 The fact remains, however, that despite the various shared principles, many things separate Beccaria (and the Verri brothers) from Montesquieu, such as the conception of the legitimate social order, the conception of the political forms and methods suitable to achieve and maintain it, and the position staked with regard to specific problems in penal law and the defence of individual legal protections. Let’s take up this last question, for a number of commonplaces have taken hold that are not supported by textual evidence. It is true that eighteenth-century Europe was inclined to read Beccaria’s small mas-

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terpiece as a logical development of positions that were expressed in Montesquieu’s The Spirit of the Laws with regard to the subject of legal and civil guarantees in criminal proceedings. And, doubtless, Montesquieu’s great work does contain elements of such a theory of criminal guarantees. We might recall, for example, the criticism of excessive severity in punishments – characteristic of despotic states – and the call for mildness in criminal codes,30 as well as a ‘just proportion’ between crimes and punishments.31 With these premises Montesquieu arrived at a conclusion that seemed to anticipate Beccaria’s idea concerning the minimum punishment necessary: ‘Every penalty that does not derive from necessity is tyrannical.’32 Consistent with these premises was Montesquieu’s argument against torture and the Inquisition.33 And even though Montesquieu could not be taken as an implacable foe of the death penalty (The Spirit of the Laws allows capital punishment in cases of homicide and even of theft34), the chapters dedicated to penal law could be viewed as inspired by some of the fundamental principles of modern legal culture. The same is true of the principle regarding the personal (non-hereditary) nature of penal responsibility,35 of the call for multiple and convergent witness testimonies,36 of the distinction between laws and police regulations, relevant only in cases of venial violations,37 and above all of the denial that penal law has any jurisdiction in matters of thought and opinion38 – hence, Montesquieu’s great caution with regard to the ‘crimes’ of heresy, magic,39 and, most importantly, lese-majesty.40 From these premises, The Spirit of the Laws manifested an intransigent aversion to judicial discretion that seemed to anticipate Beccaria’s theory of the legal syllogism. In the crucial chapter 6 of Book XI – further limiting the capacity of the judge to act as an interpreter of the ‘spirit of the law’ – Montesquieu called for the fixity of judgments, such that ‘judgments’ be nothing other than the ‘precise text of the law.’41 In turn, at least in cases involving the simple presumption of guilt, the law was to constitute the ‘fixed rule’ of the judge presiding over a trial.42 Like Beccaria, then, Montesquieu seems to have sought to eliminate any subjective interference in the administration of justice. The administration of justice thus would be more rigorous and impartial where little room was left to elements beyond

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pure objectivity, a notion that The Spirit of the Laws celebrated by insisting on the idea that punishment should flow – without any subjective or discretional influence – from the very nature of the crime itself: ‘It is the triumph of liberty when criminal laws draw each penalty from the particular nature of the crime. All arbitrariness ends; the penalty does not ensue from the legislator’s capriciousness but from the nature of the thing.’43 But when properly studied, this claim to objectivity in The Spirit of the Laws was immediately and surprisingly reversed in the extreme assertion of the rights of the subject. True, the objective nature of theft would require a pecuniary punishment, but how would the poor be dealt with, who by definition are more inclined to make an attempt on the property of others but are unable to pay a punishment of this sort? In The Spirit of the Laws there was no doubt about what to do in such instances: these criminals were to be subject to corporal punishments. As Montesquieu argues, ‘as those who have no goods more readily attack the goods of others, the corporal penalty has had to replace the pecuniary penalty.’44 Moreover, this distinction called forth another more general distinction that was not tied to the specific typology of the crime, but explicitly connected to distinctions of class. The good legislator, Montesquieu writes in Book VI, chapter 18, knows how to distinguish when it is worthwhile to seek pecuniary punishments rather than corporal punishments.45 But far from deriving from the nature of the crime, the criteria of such a distinction appealed precisely to personal qualities (that is, the social position) of the accused: when punishing a crime, ‘the noble loses his honour and his voice at court while the villein, who has no honour, is punished corporally.’46 After all, aren’t the ‘old French laws’ – the custodians of the ‘spirit of monarchy’ – what impose this diverse treatment?47 Didn’t ‘our fathers, the Germans’ teach us that these men, ‘who were both warriors and free,’ could not be subject to ‘pecuniary penalties’?48 Following these indications, an intransigent defence of peculiarity, distinctions, and privileges was developed in The Spirit of the Laws, the very existence of which reflects the ‘nature’ and ‘principle’ of moderate governments. The discourse here finally arrived at proclaiming privileged courts of law, that is, jurisdictions that were distinguished

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on the basis of the different classes. ‘Judges,’ writes Montesquieu, ‘must be of the same condition as the accused, or his peers, so that he does not suppose that he has fallen into the hands of people inclined to do him violence.’49 And the apparent care taken to neutralize the alibi of the fumus persecutionis quickly gave way to the real concern to keep at bay the threat represented by the envy of the plebeians. As Montesquieu suggests, ‘important men are always exposed to envy; and if they were judged by the people, they could be endangered.’ For this reason, he argues for the right of the noble to be ‘judged by his peers’ – an inalienable privilege of a citizen of any free state worthy of its name.50 Nobles were to be judged by nobles, roturiers by roturiers. Law was to take into consideration (that is, to reflect without interfering with) essential and insuperable inequalities. At this point it would be unproductive to pursue this further, for it would distract us from our task (and might involve a discussion, for example, of the ‘racist’ implications of this political anthropology).51 It would be better to let the texts speak for themselves – to listen simply to what Beccaria had to say about these matters. Here we may quote a few passages that have no need for long commentaries. Take, for example, § XX on ‘violent crimes’: Some crimes are assaults against the person; others are offences against property. The former should always be punished with corporal punishments: the rich and the powerful should not be able to make amends for assaults against the weak and the poor by naming a price; otherwise, wealth, which is the reward of industry under the tutelage of the laws, becomes fodder for tyranny. There is no liberty whenever the laws permit a man in some cases to cease to be a person and to become a thing : then you will see the efforts of the powerful dedicated entirely to eliciting from the mass of civil relations those in which the law is to his advantage. This discovery is the magic secret that transforms citizens into beasts of burden and that, in the hands of the strong, is the chain that fetters the actions of the incautious and the weak. This is why in some governments that have every appearance of liberty, tyranny lies hidden or insinuates itself unseen into some corner neglected by the legislator, where imperceptibly it gathers strength and grows.

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Here is the final jab, which rings all the more sharply given the echo of the fluvial metaphor so dear to Montesquieu: ‘Generally, men set up the most solid embankments against open tyranny, but they do not see the tiny insect that gnaws away at them and opens a path for the river’s flood, a path that is all the more certain to develop the more hidden it is.’ From § XXI on the ‘punishment of nobles’ we read: I shall confine myself entirely to the punishments befitting the nobility, arguing that punishments should be the same for the highest as they are for the lowest of citizens. To be legitimate, every distinction, whether it be in honour or wealth, presupposes an anterior equality founded on the laws, which treat all subjects as equally subordinate to them … To those who argue that the same punishment dealt to a nobleman and a commoner is not really the same because of the difference in their upbringing, as well as the disgrace smeared upon an illustrious family, I would reply that punishment is measured not by the sensitivity of the guilty man but by the injury done to society, which is all the greater when committed by the more privileged.

How far any of this is from Montesquieu’s particular tribunals and codes! And even when Beccaria discusses the problem of privileged courts of law, and seems at first sight inclined to approve of them, he moves rather – through an examination of mixed courts, with half of the jurors drawn from the class of the accused and the other half from the class of the plaintiff 52 – to a rejection of Montesquieu’s position and the assertion of the full equality of all citizens before the law. The keyword is generality, that is, equality – at least in principle. And this means reform in the direction of a greater rationality of norms (general validity). The battle for legal equality and codification – a battle waged with a unity of intent by the entire coterie of the Pugni – has this objective above and beyond any other. Hence, the polemic against the ‘venerated rust’ of the centuries,53 dear to the champions of the past, to the advocates of customs and traditions, and to the defenders of Roman law. If this were not enough, the invective against the constituted bodies and their particularist logic pervades the general political project

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of On Crimes and Punishments (and the entire Milanese philosophical ‘party’). There are no ideas against which the pamphlet hurls itself with greater severity than that of privilege (‘a tribute of all paid to the comfort of the few’),54 of distinction, and even of honour. Beccaria’s text is brimming with an implacable polemic against the intermediate powers (‘cruel filters’ of the demands the people make of their sovereign), against arrogance of a nobility seen as a class that is the ‘slave to itself and to others,’55 and against the exceptions and the special jurisdictions that The Spirit of the Laws had seen as the guarantee of ‘security’ and ‘liberty.’ And here the attack reaches its highest target in the criticism of that form of government that the président had depicted as an embodiment of moderate government (and, in the final analysis, as the only system of power in modern Europe capable of combining order and legitimacy) and that Beccaria, by establishing a precise equivalence between the ‘monarchical spirit’ and the particularistic spirit of political faction and ‘of details,’ lucidly traces to the feudal classes’ worries over the fate of their own endangered rule. The Silence of the Slaves What is most important is that the effort to reconcile individual liberty and social justice does not correspond to a simple wish, much less to pure whim. For Beccaria, rather, the problem has to do with how to respond to historical evolution, to the force of things. The course of history is a fact that imposes upon politics unavoidable tasks – a fact that defines, together with the ‘nature’ of men (egoists, interested in their own good), the unavoidable framework of politics. ‘Everything in Europe,’ Beccaria observes in Il Caffè in terms that de Tocqueville would echo many decades later, ‘is getting closer and becoming more similar,’ and ‘there is a stronger impulse towards equality that did not obtain in the past.’56 In the meantime, laws must promote the progress of equality insofar as such progress constitutes a concrete reality and the very meaning of the historical processes at work. And so the task of the law is to buttress (or even to accelerate) the actual evolution of things: ‘the changes that occur in a country’s

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circumstances’ are, when it comes down to it, ‘always consistent with the common interest.’57 Only that which responds to the needs of the collectivity becomes objectively real. We must ask now what Beccaria believed – at the time of writing On Crimes and Punishments – would happen if the political program he described were to go unrealized. Consistent with a determinism of this sort, tempered by the recognition of the important role of the will and reason, one thing is clear: that ‘not limited by time and continuously operative,’ ‘the immutable nature of things … disrupts and overturns all limited regulations that stray from it’ and that ‘politics itself – at least, any true and lasting politics – falls under this general maxim, for it is nothing other than the art of how best to guide and render harmonious the immutable sentiments of mankind.’58 What does this mean? As Beccaria himself explains: ‘no lasting advantage can be expected from political morality, unless that morality is founded upon the indelible sentiments of mankind’; and again, ‘any law that deviates from these sentiments will always encounter a contrary resistance that will prevail in the end, just as any force, however small, if continuously exerted will prevail over any violent jolt transmitted to a body.’59 In other words, political power is limited by the very nature of things. Beccaria here says ‘nature,’ but elsewhere – as we’ve seen – he speaks of the historical process and its progressive logic. In any case, we are dealing with embankments against arbitrariness – against the ‘self-interested and capricious opinions’60 of the rulers. And so the severe conclusion of his discourse should be of no surprise. The ‘courageousness’ of the ‘people,’ their feeling of freedom, ‘is worth as much as a tax to a sovereign who knows his own true interests.’61 But conflict and revolt – ‘a momentary return to the state of nature and … a reminder for the ruler of the ancient equality of men’ – will be inevitable if the authority allows its power to degenerate into tyranny.62 Beccaria’s influences – Rousseau and Helvétius (not to mention Hobbes) – again make their voices heard. The former, an opponent of agitation yet convinced of the intrinsic fragility of every unjust order, spoke in Emile of impending and inevitable revolutions, and prophetically concluded by describing the near future as a ‘century of revolu-

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tions.’63 The latter had warned about deluding oneself into thinking that it would be advantageous to ignore the ‘terrible’ ‘silence of the slaves.’64 Beccaria spoke in different, but equivalent terms. Two years earlier, he had already noted the path to his argument in On Crimes and Punishments. ‘Make a law that is consistent with truth and the disobedience of the people will cease,’ he wrote in Del disordine e de’ rimedi delle monete, adding immediately (perhaps aware that he was reiterating themes of Helvétius and Rousseau) that ‘the unruliness of men is almost always an effect of a defect in legislation.’65 Beccaria’s greatest work moves entirely within the tracks of this original intuition. The civil state is a fragile convention and requires the reasonableness of everyone (above all of the powerful). If it is confined within embankments that are too narrow, the ‘indelible’ sentiments of men (the need for liberty and justice) will not be long in reasserting their rights. In a certain sense, we could even read the title of Beccaria’s masterpiece in this way: among all of the ‘crimes,’ the gravest is precisely the offence against ‘nature’ – the unjust administration of society. And following from this is the most severe punishment, although it is not mentioned in any code: the rupture of the social pact and the return to the state of nature, that is the premise upon which a new social order can be sought – one that is more respectful of the needs and the legitimate aspirations of every individual.

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PART ONE On Crimes and Punishments

This frontispiece depicts Justice shunning an executioner who holds a cluster of bloody severed heads in one hand and his axe and dagger in the other. Her gaze is fixed instead upon the scales of justice and a pile of worker’s tools and prisoner’s shackles. These instruments symbolize hard labour, which Beccaria believed to be a more humane form of justice and of greater social utility than capital punishment. Based on a sketch provided by Beccaria, the copperplate engraving was rendered by Giovanni Lapi for the third edition of Dei delitti e delle pene, published in March 1765. It was copied, often with great attention to detail, in counterfeit editions of the book. The version above appeared in an unauthorized edition in 1766.

On Crimes and Punishments

In rebus quibuscumque difficiloribus non expectandum, ut quis simul, et serat, et metat, sed praeparatione opus est, ut per gradus maturescant. Francis Bacon, Sermones fideles, XLV1 In all negociations of difficulty, a man may not look to sow and reap at once, but must prepare business, and so ripen it by degrees. Francis Bacon, Essays, 47

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O n C r im e s a n d P u n i s h m e n t s

TO T H E R E A D E R Some remnants of the laws of an ancient conquering people, compiled on the orders of a prince ruling in Constantinople twelve centuries ago,2 later mixed with Langobardic customs and bound together in the sprawling volumes of private and obscure interpreters – this is what forms the tradition of opinions that in a large part of Europe goes under the rubric of law. It is as deplorable as it is common that an opinion of Carpzov,3 an ancient practice mentioned by Claro,4 or a torture suggested with wrathful righteousness by Farinacci5 should constitute today the laws so confidently applied by those who ought to be humbled by the task of governing the lives and fortunes of men. These laws, which are the dregs of the most barbarous ages, are examined in this book insofar as they pertain to the system of criminal justice. An attempt has been made herein to expose their flaws to those in charge of the public welfare and to do so with a style intended to ward off the unenlightened and impatient masses. The sincere search for truth and the independence from vulgar opinion with which this work has been written is the product of the mild and enlightened government under which the author lives.6 The great monarchs, the benefactors of humanity who rule us, cherish the truths that are expounded with nonfanatical vigour by the humble philosopher, who is despised only by those who, repelled by reason, resort to force or cunning. Those who carefully examine the circumstances surrounding our current confusions will see that they constitute a reproach and make a mockery of past ages, certainly not of this century and its legislators. Whoever might wish to honour me with his criticisms should, therefore, begin by clearly understanding the purpose of this work, a purpose that, far from diminishing legitimate authority, should serve to strengthen it, that is, if opinion in men is more powerful than force, and if kindness and humanity can justify that authority in the eyes of everyone. The mistaken criticisms published against this book are founded on confused notions and oblige me to interrupt my reasoned discussion with enlightened readers to foreclose once and for all any access to the errors that arise either from timid zeal or the calumnies of malicious envy.7

5

Part I

The moral and political principles that govern men are derived from three sources: revelation, natural law, and the artificial conventions of society. With regard to its main purpose, there is no comparison between the first and the others; but all three are alike in that they all lead towards happiness in this mortal life. To consider the issues pertaining to the latter is not to exclude those pertaining to the first two. Quite the opposite: since the first two, although divine and immutable, have been altered in a thousand ways in the depraved minds of men by false religions and arbitrary notions of vice and virtue, it seems necessary to examine, independent of any other consideration, that which arises from simple human conventions, whether expressly formulated or merely assumed out of common necessity and utility – an idea upon which every sect and every moral system must necessarily agree. It will always be considered a praiseworthy undertaking to urge the most obstinate and incredulous to abide by the principles that impel men to live in society. There are, therefore, three distinct classes of vice and virtue: the religious, the natural, and the political. These three classes should never be in contradiction with one another. But not all the consequences and duties that follow from one class follow from the others. Not everything that revelation requires is required by natural law, nor is everything that natural law requires also required by purely social law. But it is of utmost importance to consider separately what obtains from this latter convention, that is, from the expressed or tacit pacts between men, because it marks the limit of the force that can be exercised legitimately by one man over another without a special mandate from the Supreme Being. The idea of political virtue, therefore, can plausibly be called variable; the idea of natural virtue would ever remain clear and manifest were it not obscured by the stupidity and passions of men; the idea of religious virtue is always one and invariable, because it has been revealed directly by God and is maintained by Him. It would be an error, therefore, to charge someone speaking of social conventions and their consequences of holding principles that are contrary either to natural law or revelation, for he is not speaking

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about these matters. It would be an error for someone speaking of a state of war prior to the establishment of society to understand it in a Hobbesian sense, that is, as entailing no duties or obligations prior to the establishment of society, rather than understanding the state of war as the outcome of the corruption of human nature and the lack of any express sanction. It would be an error to criticize a writer who is studying the effects of the social pact for not admitting that such effects existed prior to the formation of the pact itself. Divine justice and natural justice are essentially immutable and constant, because the relationship between two self-same objects is always the same. But human justice or political justice, being no more than a relation between an action and the variable condition of society, can vary to the degree that such an action becomes necessary or useful to society. Nor can this be easily appreciated unless one analyses the complex and ever-changing relations of civil association. As soon as these essentially distinct principles become confused, there can be no hope of sound reasoning in public affairs. It is up to theologians to establish the boundaries between what is just and unjust with regard to the intrinsic wickedness or goodness of an action; by the same token, it is the task of the scholar of public law to determine what is just and unjust in a political sense, that is, what is useful and harmful to society. Neither task can ever prejudice the other, for everyone can see how purely political virtue must yield to the immutable virtue emanating from God. Anyone, I repeat, who wishes to honour me with his criticisms should not begin, therefore, by assuming that I hold principles destructive either to virtue or to religion, for I have shown that such principles are not my own. Instead of making me out to be either an unbeliever or a rebel, he should try to prove me a poor logician or a careless political thinker. He should not shudder at every statement that upholds the interests of humanity. Rather, he should convince me of the uselessness of my principles or of the political harm that might arise from them, and he should show me the advantages of the established practices. I have given public affirmation of my religion and of my obedience to my sovereign in the reply to the Notes and

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Observations8 and to do so again in response to other similar writings would be superfluous. But whoever writes with the decency befitting honest men and with sufficient enlightenment to exonerate me from the need to prove first principles, of whatever kind they may be, will find in me not so much a man seeking to respond as a peaceable lover of truth.*



* All passages contained within this sign | are the first additions and all passages contained within this sign || are the second additions.

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Introduction For the most part, men neglect the most important regulations, leaving them either to common sense or to the discretion of those whose interest it is to oppose the most provident laws, which by their very nature promote the universal distribution of benefits and resist the tendency of such benefits to concentrate in the hands of the few, whereby the greatest power and happiness accrue to the few while the rest are beset with weakness and misery. It is only after they have been subjected to a thousand errors in the most essential matters of life and liberty, and have grown tired of suffering the most extreme misfortunes, that men are driven to remedy the ills that oppress them and to recognize the most tangible truths that, precisely because of their simplicity, escape the minds of common men who are not accustomed to analysing things, but rather to receiving a whole set of impressions from tradition rather than through examination. If we open our history books we will see that laws, which are or should be pacts between free men, have been for the most part the instrument of the passions of the few or have arisen from a fortuitous and transient necessity. They have not been dictated by a calm student of human nature who has distilled the actions of a multitude of men and considered them from this point of view: the greatest happiness shared among the greatest number. Happy are those few nations that did not wait for the slow succession of contingencies and human vicissitudes to plunge them into a state of abject misery in order for them to set out towards achieving the good, but that accelerated the intermediary stages with good laws. And man owes a debt of gratitude to that philosopher who, from his obscure and disdained study, had the courage to sow among the multitude the first and long-fruitless seeds of useful truths. We are now aware of the true relations that obtain between sovereigns and their subjects and among different nations; commerce has become dynamic thanks to the philosophical truths made widely available by the printing press, and a quiet war of industry has broken out among nations, the most humane sort of war and the most worthy of reasonable men. These are the fruits that we owe to this

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enlightened century. But very few have studied and fought against the cruelty of punishments and the irregularities of criminal procedures, an area of legislation so fundamental yet so neglected almost everywhere in Europe. Very few have returned to general principles to destroy errors that have accumulated over many centuries or at least to curb, with the unique force that recognized truths possess, the unbridled advance of ill-directed power, which to this day has set a long and sanctioned example of cold-blooded atrocity. And yet, the groans of the weak, sacrificed to cruel ignorance and wealthy indolence; the barbarous tortures multiplied with lavish and useless severity for crimes either unproved or imaginary; the squalor and the horrors of prison, intensified by uncertainty, the cruellest tormentor of the wretched – all of these should have roused those magistrates who guide human opinion. The immortal President de Montesquieu has dealt cursorily with this subject. Indivisible truth has compelled me to follow the shining footsteps of this great man, but the thinking men for whom I write will know how to distinguish my steps from his. I shall consider myself fortunate if, like him, I can earn the secret gratitude of humble and peaceful followers of reason, and if I can inspire that sweet shiver with which sensitive souls respond to whoever upholds the interests of humanity! I The Origin of Punishments Laws are the terms by which independent and isolated men united to form a society, once they tired of living in a perpetual state of war where the enjoyment of liberty was rendered useless by the uncertainty of its preservation. They sacrificed a portion of this liberty so that they could enjoy the remainder in security and peace. The sum of all these portions of liberty sacrificed for each individual’s benefit constitutes the sovereignty of a nation, and the sovereign is the legitimate keeper and administrator of those portions. But it was not enough to create this depository; it had to be defended from the private usurpations of each particular individual, since everyone always tries to withdraw not only his own share but also to usurp that belonging to others. Tangible measures were needed, therefore, to prevent the despotic

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spirit of every individual from plunging the laws of society back into primeval chaos. These tangible measures are the punishments established against lawbreakers. I say tangible measures because experience has shown that the multitude do not adopt fixed principles of conduct; nor do they distance themselves from the universal principle of dissolution that can be observed in both the physical and moral realms, unless those measures have a direct impact on the senses and present themselves continually to the mind in such a way as to counterbalance the strong impressions made by the particular passions that oppose the universal good. Neither eloquence, nor rhetoric, nor even the profoundest truths have succeeded in curbing for any length of time the passions excited by the vivid impact of actual objects. II The Right to Punish As the great Montesquieu says, every punishment that does not derive from absolute necessity is tyrannical. This proposition can be stated more generally in the following manner: every act of authority of one man over another that does not derive from absolute necessity is tyrannical. This is the foundation, therefore, upon which the sovereign’s right to punish crimes is based: the necessity to defend the depository of the public welfare from individual usurpations; and the more just the punishments, the more sacred and inviolable the security and the greater the liberty the sovereign preserves for his subjects. Let us consult the human heart, and in it we will find the fundamental principles of the sovereign’s true right to punish crimes, for no lasting advantage can be expected from political morality, unless that morality is founded upon the indelible sentiments of mankind. Any law that deviates from these sentiments will always encounter a contrary resistance that will prevail in the end, just as any force, however small, if continuously exerted will prevail over any violent jolt transmitted to a body. No man ever freely surrendered a portion of his own liberty for the sake of the public good; such a chimera appears only in fiction. If it were possible, we would each prefer that the pacts binding others did not bind us; every man sees himself as the centre of all the world’s affairs.

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| The reproduction of the human species, however gradual, exceedingly outstripped the means that sterile and uncultivated nature could offer to satisfy their increasingly intertwined needs, and brought together the earliest savages. The first unions necessarily brought about the formation of others to oppose the former, and thus the state of war was transferred from individuals to nations. | It was thus necessity that compelled men to give up part of their personal liberty; and so it is that each is willing to place in the public depository only the least possible portion, no more than what it takes to induce others to defend it. The aggregate of these smallest possible portions constitutes the right to punish; everything that exceeds this is abuse, not justice; it is a matter of fact, not of right. Note that the word right is not in contradiction with the word force; rather, the former is a modification of the latter, that is, the modification most useful to the greatest number. And by justice I mean nothing but the bond required to hold particular interests together, without which they would dissolve into the old state of unsociability; all punishments that exceed what is necessary to preserve this bond are unjust by their very nature. Care must be taken not to attribute to the word justice the notion that it is some real thing, such as a physical force or a living being. It is simply a human way of conceiving things, a way that infinitely influences the happiness of everyone. Much less am I referring to that other kind of justice, which emanates from God and is directly concerned with the punishments and rewards of life in the hereafter. III Consequences The first consequence of these principles is that laws alone can decree punishments for crimes, and that this authority can rest only with the legislator, who represents all of society united by a social contract; no magistrate (who is a member of society) can justly impose punishments for another member of that same society. A punishment that exceeds the limit fixed by the laws is a just punishment to which another punishment has been added; a magistrate cannot, therefore, on any pretext, whether out of zeal or concern for the public good, increase the punishment established for a delinquent citizen.

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The second consequence is that if every particular member is bound to society, society is likewise bound to every particular member by a contract that by its nature places both parties under obligation. | This obligation, that descends from the throne to the hovel and equally binds the most elevated and the most wretched of men, means nothing other than that it is in the interest of all that the pacts useful to the greatest number be observed. The infringement of even one of them begins to legitimate anarchy.* | The sovereign, who represents society itself, can only fashion general laws that bind all members, but he cannot judge whether someone has violated the social contract, otherwise the nation would be divided into two parts – one represented by the sovereign, who asserts the violation of the contract, and the other by the accused, who denies it. It is, therefore, necessary that there be a third party to judge the veracity of the facts; hence, the need for a magistrate whose verdicts, which are simply affirmations or denials of particular facts, cannot be appealed. The third consequence is that if the extreme severity of the punishments were shown to be merely useless, even if not directly contrary to the public good and to the very goal of preventing crimes, such severity would even in this case be contrary not only to those beneficent virtues that are the outcome of an enlightened reason – that prefers to guide happy men rather than a herd of slaves constantly subjected to timid cruelty – but to justice and to the nature of the social contract itself. IV Interpretation of the Laws Fourth consequence: the authority to interpret penal laws cannot rest with criminal judges, for the simple reason that they are not legislators. Judges have not received laws from our ancient forefathers as if they were a family tradition or a will that leaves to posterity the sole

* | The word obligation is one of those that appear more frequently in ethics than in any other discipline, and that are abbreviated signs of a line of reasoning, rather than of a single idea. Try to find an idea underlying the word obligation and you will not find it; reason about it and you will both understand and be understood. |

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task of obedience; they receive them, rather, from living society or from the sovereign who represents it as the legitimate depositary of the current sum of the will of everyone. They receive the laws not as obligations of an ancient oath (that is both void, because it would bind the wills of those not yet born, and iniquitous, because it would reduce men from a state of society to the state of a herd) but as the result of a tacit or explicit oath that the combined wills of living subjects have sworn to their sovereign, as bonds necessary to restrain and regulate the internecine turmoil borne of particular interests. This is the tangible and real authority of the laws. Who, then, will be the legitimate interpreter of the laws? Is it the sovereign, who is the depositary of the current will of all, or is it the judge, whose sole office is that of examining whether or not a certain man has committed an action that is contrary to the laws? For every criminal case, the judge must construct a perfect syllogism: the major premise must be the general law; the minor premise, whether or not the action in question is in compliance with the law; and the conclusion, acquittal or punishment. When the judge is compelled or wishes to entertain even two syllogisms, the door to uncertainty is opened. Nothing could be more dangerous than following the popular maxim whereby it is the spirit of the law that must be consulted. This is an embankment that, once broken, gives way to a torrent of opinions. This truth, paradoxical as it may seem to the uneducated minds that are more impressed by a trivial disorder close at hand than by the dangerous but remote consequences that follow from a false principle rooted in a nation, seems evident to me. Our knowledge and all of our ideas are mutually connected; the more complicated they are, the more numerous must be the roads that lead to them and depart from them. Everyone has his own point of view, and everyone has a different one at different times. The spirit of the law would thus be the product of a judge’s good or bad logic, of his effortless or unhealthy digestion; it would depend upon the violence of his passions, upon the weaknesses he might suffer, on the judge’s relations with the plaintiff, and on all those minute factors that alter the appearance of an object in the fluctuating mind of man. Hence, we

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see how the fate of a citizen changes several times as he moves through the courts, and how the lives of poor wretches fall victim to false reasoning or to the momentary bad mood of a judge, who mistakes for a legitimate interpretation of the law the hazy product of that confused series of notions that influence his mind. Thus, we see the same crimes punished differently at different times by the same court, because it consulted the errant instability of interpretations rather than the constant and fixed voice of the law. Any confusion that arises from the strict observance of the letter of a penal law is not comparable to the confusions that arise from interpretation. Such a temporary inconvenience prompts us to make the easy and necessary correction in the words of the law, which is the cause of uncertainty, but it obstructs the fatal licence to argue, which gives rise to arbitrary and venal disputes. When a fixed code of laws, which must be observed to the letter, leaves the judge no other task than to examine the actions of citizens and to judge whether or not they are consistent with the law as written, and when the norm defining the just or the unjust, which must guide the actions of the ignorant citizen as well as those of the philosopher citizen, is a matter not of controversy but of fact, then subjects are no longer exposed to the petty tyrannies of many men, which are more cruel the smaller the distance between the individual who suffers and the individual who inflicts suffering. Such tyrannies are more fatal than the tyrannies of a single individual because the despotism of many can only be curbed by the despotism of a single individual, and the cruelty of a single despot is proportional not to his power, but to the obstacles he faces. In this way, citizens acquire that measure of personal security that is just, for this is why they united into society in the first place, and that is useful, for it enables them to calculate accurately the negative consequences of a misdeed. It is equally true that they will acquire a spirit of independence, but not the kind that shrugs off the laws and is defiant of the supreme magistrates, but rather that kind which resists those who dared to apply the sacred name of virtue to the weakness of succumbing to their self-interested and capricious opinions. These principles will displease those who have claimed for themselves a right to pass on to their inferiors the tyrannical blows that they have

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received from their superiors. I would have everything to fear if the spirit of tyranny went hand in hand with the spirit of reading. V The Obscurity of the Laws If the interpretation of laws is an evil, obscurity clearly is as well, for it makes such interpretation necessary. And the evil is greater still if the laws be written in a language foreign to the people that makes them dependent upon a few individuals, as they are unable to judge for themselves what will become of their liberty or that of their fellows, fettered as they are by a language that transforms a solemn and public book into one that is almost private and familial. What must we think of mankind when we consider that this is the inveterate custom of a large part of cultured and enlightened Europe! The greater number of those who have access to and can understand the sacred code of the laws, the fewer crimes there will be, for there is no doubt that ignorance and uncertainty regarding the punishments abet the persuasive power of the passions. One consequence of the foregoing reflections is that, without writing, a society will never achieve a fixed form of government in which power is a product of the whole rather than the parts, and in which laws – unalterable except by the general will – are not corrupted as they wade through the throng of private interests. Experience and reason have shown us that the probability and certainty of human traditions wane the further they get from their origin. If there is no stable monument to the social pact, how will the laws withstand the inevitable onslaught of time and passions? We see, therefore, how useful the printing press is, for it makes the public, not just a few individuals, the depositary of the sacred laws. And we see how efficacious it has been in dispelling that dark spirit of cabal and intrigue, which vanishes when confronted with the enlightenment and the sciences, apparently despised but in reality feared by the followers of that spirit. This is why we observe in Europe a reduction in the atrocity of the crimes that made our forefathers grieve, becoming tyrants and slaves in turn. Anyone acquainted with the history of the past two or three centuries, as well as our own, will

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appreciate how the most pleasing virtues have sprung from the lap of luxury and easy living: humanity, benevolence, and tolerance of human error. He will see the effects of what is mistakenly called ancient simplicity and good faith: humanity grieving under implacable superstition; avarice; the ambition of the few stains the coffers of gold and thrones of kings with human blood; secret betrayals and public massacres; every nobleman a tyrant over the common people; preachers of the evangelical truth soiling with blood the hands that daily touched the God of meekness – these are not the work of this enlightened century, which some call corrupt. VI Proportionality between Crimes and Punishments It is in the common interest not only that crimes not be committed, but that they be rarer in proportion to the harm that they do to society. Therefore, the obstacles that deter men from committing crimes must be more formidable the more those crimes are contrary to the public good and the greater are the incentives to commit them. Thus, there must be proportion between crimes and punishments. It is impossible to anticipate all of the misdeeds engendered by the universal conflict of human passions. They multiply at a compound rate with the growth in population and the interlacing of particular interests that cannot be directed with geometrical precision towards the public utility. In the arithmetic of politics, the calculus of probabilities must replace mathematical exactitude. || If we look at history we will see that disorder grows with the expansion of the boundaries of empires and, as patriotic sentiment wanes in proportion, the motives for crimes grow according to the advantage each individual seizes from the disorder itself: for this reason, the need to implement more severe punishments continually increases. || That force that, like gravity, pulls us towards our well-being can only be restrained to the extent that obstacles are set up against it. The effects of this force are the confused series of human actions. If these clash together and damage one another, then punishments, which I would call political obstacles, hinder their bad effects without doing away with their impelling cause, which is the very sensibility

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inherent in man. And the legislator plays the part of the skilful architect, whose task is to counteract the ruinous pull of gravity and to align those forces that contribute to the strength of the building. Given the necessity for men to come together, and given the pacts that necessarily arise out of the very clash of private interests, a scale of misdeeds can be identified, at the top of which are those that are immediately destructive of society and at the bottom those that cause the least possible injustice to its individual members. Between these extremes lie all those actions contrary to the public good, which are called crimes, and which are distributed across a scale that moves imperceptibly by diminishing degrees from the highest to the lowest. If geometry were applicable to the infinite and obscure combinations of human actions, there would be a corresponding scale of punishments, descending from the most severe to the mildest. But it is enough for the wise legislator to note the principal points along the scale without disturbing their order, such that punishments befitting the most severe crimes are not applied to crimes of the lowest degree. If there were an exact and universal scale of punishments and crimes, we would have a fairly reliable and shared instrument to measure the degree of tyranny and liberty, of the basic humanity or malice of the different nations. Any action that does not fall between the two limits mentioned above cannot be called a crime, nor can it be punished as such, except by those who stand to gain by such a definition. Uncertainty about these limits has given rise in nations to a morality that contradicts the laws, to conflicting legal enactments, and to a host of laws that expose the most prudent people to the harshest punishments, but that leave the terms vice and virtue vague and fluctuating, giving rise to an uncertainty about one’s own existence that produces an indolence and sluggishness that is fatal to the body politic. Anyone who reads the legal codes and the chronicles of nations with a philosophical eye will almost always find that the meanings of the terms vice and virtue, good citizen, and criminal change with the unfolding of time, not because of the changes that occur in a country’s circumstances, and thus always consistent with the common interest, but according to the passions and errors that have gripped different legislators at different times. One will see often enough that the passions of one century

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form the foundation of the morality of future centuries, and that the strong passions, born of fanaticism and fervour, are weakened and gnawed, so to speak, by time (which brings all physical and moral phenomena into equilibrium) until they gradually become the conventional wisdom of the century and a useful tool in the hands of the strong and the shrewd. It is in this way that the very obscure notions of honour and virtue were born; these notions are so obscure because they change with the unfolding of time, which makes names outlive the things to which they refer; they change with the rivers and with the mountains, which very often form the borders not merely of physical but of moral geography. If pleasure and pain are the driving forces of sentient beings, and if the invisible legislator placed rewards and punishments among the motives that impel men to even the most sublime endeavours, then the incorrect distribution of punishments will give rise to that contradiction, as little noticed as it is common, that punishments punish the crimes that they have caused. If the same punishment is prescribed for two crimes that injure society in different degrees, then men will face no stronger deterrent from committing the greater crime if they find it in their advantage to do so. VII Errors in the Measurement of Punishments The foregoing reflections give me the right to assert that the only true measurement of crimes is the harm done to a nation and, therefore, that those who believe that the intention of the perpetrator is the true measurement are in error. Intention depends upon the impression objects make at any given time and upon the preceding disposition of the mind; these vary between men and in the same man with the rapid succession of ideas, passions, and circumstances. It would be necessary, therefore, to fashion not only a particular legal code for each citizen, but a new law for every crime. Sometimes men with the best intentions do the greatest harm to society; and at other times they do it the greatest good with the most malevolent will. Others assess the gravity of crimes more according to the social status of the injured than their significance with regard to the public

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good. If this were the true measure of crimes, irreverence towards the Supreme Being ought to be more severely punished than the assassination of a monarch, as the natural superiority of the former counts infinitely more than the difference in the offence. Finally, some have thought that the severity of the sin ought to be taken into account in the measurement of crimes. The fallaciousness of this opinion will be immediately clear to anyone who impartially examines the true relations among men and between men and God. The former relationships are based on equality. Out of the clash of passions and the opposition of interests, necessity alone gave rise to the idea of common utility, which is the foundation of human justice. The latter involves a relationship of dependence on a perfect Being and Creator, who has reserved to Himself alone the right to be lawgiver and judge at once, for only He can be both without any difficulty. If He has established eternal punishments for anyone who disobeys His omnipotence, what kind of insect will dare to supplement divine justice, or will wish to avenge the Being Who is sufficient unto Himself, upon Whom objects make no impression of pleasure or pain, and Who, alone among all beings, acts without being acted upon? The gravity of sins depends upon the inscrutable malice of the human heart, which finite beings cannot know except through revelation. How then can a norm for punishing crimes be drawn from this? In such a case, men might punish when God forgives and forgive when God punishes. If men can run counter to the Almighty by offending Him, they can also do so when they administer punishments. VIII Classification of Crimes We have seen what the true measure of crimes is, namely, the injury caused to society. This is but one of those palpable truths that require neither quadrants nor telescopes to be discovered, for they lie well within the grasp of even the most mediocre intellect. Yet for an extraordinary set of circumstances, they have been firmly recognized by only a few thinkers in every nation and in every century. But Asiatic notions, and the passions that have been cloaked in authority and power, have dispelled, most often through a series of almost

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imperceptible stages but sometimes through violent impressions left upon the timid and credulous minds of men, those very simple ideas that may have shaped the early philosophy of nascent societies and to which the enlightenment of our own age seems to be leading us back, with that greater conviction afforded by a mathematically rigorous analysis, a multitude of dismal experiences, and the obstacles themselves. It might seem appropriate at this point to examine and distinguish all the various sorts of crimes and the way to punish them, were it not for the fact that assessing the variety of crimes and punishments in different times and places would entangle us in an immense morass of boring detail. It will be sufficient to focus on the more general principles and the more harmful and common errors in order to disabuse those who, from a misguided love of liberty, would wish to bring about anarchy, as well as those who would like to reduce men’s lives to a monastic regularity. Some crimes are directly destructive to society or to those who represent it; some are detrimental to the security of the citizen as they infringe upon his life, property, or honour; certain others are actions contrary to that which the laws oblige everyone to do or not do, in view of the public good. The first, which are the greatest because they are the most harmful, are called crimes of lese-majesty. Tyranny and ignorance alone, which confuse even the clearest of words and ideas, can apply such a label, and as a consequence assign the most severe punishment, to crimes of a different nature, thereby making men, in this as in so many other occasions, victims of a word. All crime, however private it may be, injures society, but not all crimes aim at its immediate destruction. Moral actions, like physical actions, have their own limited sphere of applicability and they are circumscribed differently, like all natural movements, according to time and space. Only an interpretation based upon specious arguments, which is usually the philosophy of slavery, can conflate things that eternal truth has distinguished by immutable relations. Next are those crimes that jeopardize the security of each individual. Given that this is the principal end of all legitimate association, the violation of the right to security acquired by each citizen must be assigned some of the most severe punishments provided for by the law.

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The notion that every citizen must have of being able to do anything that does not run contrary to the laws without fearing any other consequences except those that may result from the action itself – this is the political dogma that should be accepted by the people and proclaimed by the highest magistrates through their honest guardianship of the laws. This sacred dogma, without which no legitimate society can exist, is a fitting compensation for the sacrifice man made of that universal power to act upon things, which is common to all sentient beings and limited only by one’s own strength. This dogma shapes free and vigorous spirits and enlightened minds; it makes men virtuous, but according to that notion of virtue that withstands fear, not the one that encourages the accommodating prudence worthy only of those who can bear a precarious and uncertain existence. Attacks against the security and liberty of the citizens are thus among the greatest crimes. And in this category are included not merely murders and thefts perpetrated by the plebeians, but also those committed by nobles and magistrates, whose influence reaches farther and with greater force, destroying the subjects’ sense of justice and duty, and replacing it with the notion that might makes right – an idea that is equally dangerous to those who exercise it and to those who suffer it. IX On Honour There is a remarkable difference between the civil laws, which more than anything else are the jealous guardians of the person and property of each citizen, and the laws of what is called honour, which give preference to opinion. Honour is a term that has been the subject of many long and brilliant arguments, without any single fixed or stable idea being attached to it. What a miserable state for the human mind to be in, that the most remote and least important ideas about the revolutions of the heavenly bodies should be more clearly known than the immediate and extremely important moral notions, which are always fluctuating and confused, as they are driven by the winds of passions and picked up and carried along by ignorance! But this seeming paradox will disappear if one considers that just as objects

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too close to our eyes are blurred, so too the extreme nearness of moral ideas makes it easy that the many simple ideas that comprise them become muddled and for the distinctions necessary to the rigorous investigation of the phenomena of human sensibility to become confused. And it will seem less of a marvel to the impartial observer of human affairs, who will begin to suspect that perhaps there is no need for so great a moral apparatus or for so many restraints in order to make men happy and secure. Honour, therefore, is one of those complex ideas that are an aggregate not only of simple ideas but also of equally complicated ideas that, in the various ways that they appear to the mind, either admit or exclude some of the different elements that comprise them and retain only a few of the most common ideas, just as several complex algebraic quantities admit of one common divisor. To find this common divisor of the various ideas that men have formed of honour, it is necessary to glance briefly at the formation of society. The first laws and the first magistrates were born of the necessity to remedy the disorders produced by the physical despotism of each man; this was the end for which society was instituted and this primary end has always been preserved, in fact or in appearance, at the head of all legal codes, even the destructive ones. But the coming together of men and the progress of their knowledge gave rise to an infinite series of actions and mutual needs that always went beyond the provisions of the laws but fell short of the actual power of each individual to satisfy. The despotism of opinion, which was the only means to obtain from others those benefits and to avert those evils for which the laws did not sufficiently provide, can be dated to this epoch. And it is opinion that torments both the wise and the commoner, that placed a greater value on the appearance of virtue than in virtue itself, and that makes even a scoundrel turn into a missionary, for he finds this to be in his own interest. Hence, the esteem of men has become not only useful but also necessary to avoid falling below the common standard. Thus, if the ambitious man strives to win it because it is useful, and if the vain man goes begging for it as a testimony of his personal merit, the man of honour is seen demanding it as a necessity. This honour is a condition that many men place on their own existence. Since it arose

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after the formation of society, it could not be placed in the common depository; rather, it is an instantaneous return to the state of nature and a momentary withdrawal of one’s own person from the laws that, in this case, do not sufficiently protect a citizen. Hence, both in extreme political liberty and in extreme subordination, ideas of honour disappear or become altogether confused with others. In the former case, the despotism of the laws renders useless the quest for the esteem of others; in the latter case, the despotism of men, by destroying civil life, reduces everyone to a precarious and fleeting personality. Honour is thus one of the fundamental principles of monarchies, which are a sort of attenuated form of despotism, and it functions in them in the same way that revolutions do in despotic states: as a momentary return to the state of nature and as a reminder to the ruler of the ancient equality of men. X On Duels From this need for the esteem of others arose private duels, whose origin lay in the very anarchy of the laws. Duels are thought to have been unknown in antiquity, perhaps because the ancients did not assemble suspiciously armed in temples, in theatres, and with friends; perhaps because the duel was an ordinary and common spectacle that enslaved and debased gladiators presented for the people, and free men disdained to be considered and called gladiators because of their private battles. Edicts that have sought to extirpate this custom by threatening death to anyone who accepts a duel have been in vain, for it is founded on something that some men fear more than death. Deprived of the esteem of others, the man of honour sees himself in danger of becoming either a merely solitary being, which is an unbearable condition for a social man, or a target for insult and defamation, whose repeated effects outweigh the danger of punishment. Why is it that the common people do not usually duel as aristocrats do? It is not only because they are unarmed, but also because the need for the esteem of others is less common among the lower class than it is in those who, being of higher standing, look upon each other with greater suspicion and jealousy.

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It is not useless to repeat what others have written, namely, that the best method to prevent this crime is to punish the aggressor – that is, the man whose actions have prompted the duel – and to declare innocent the man who, through no fault of his own, has been compelled to defend what the existing laws do not assure to him, that is, the opinion that others hold of him, and who has had to show to his fellow citizens that he fears only the laws alone and not men. XI On Public Peace Finally, among the crimes of the third type are those that especially disturb the public peace and calm of the citizens, such as commotion and revelry in the public streets meant for the commerce and traffic of the inhabitants, or the fanatical sermons that excite the simple passions of the curious crowd, passions that gain strength from the great number of the audience and from obscure and mysterious enthusiasm more than from clear and calm reason, which never has any effect on a large mass of men. Lighting the streets at public expense; guards posted in the various quarters of the city; the plain and moral discourses of religion confined to the silence and sacred peace of temples protected by the public authority; public speeches in support of public and private interests delivered in the nation’s assemblies, in parliaments, or wherever the majesty of the sovereign resides – these are all effective means for preventing a dangerous clustering of popular passions. They comprise one of the main branches of magisterial vigilance that the French call police. But if the magistrate acts according to arbitrary laws that are not established by a code that circulates among all the citizens, then the door is open to tyranny, which always lies just beyond the boundaries of political liberty. I find no exception to this general axiom: that every citizen should know when he is guilty and when he is innocent. If censors or other arbitrary magistrates are necessary in some regimes, this is a result of the weakness of its constitution and not of the nature of a well-ordered government. Uncertainty regarding one’s own fate has sacrificed more victims to secret tyranny than has public and official cruelty; more than sickening men’s spirits, uncertainty angers them.

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The true tyrant always begins by controlling opinion, thereby forestalling the courage that can only shine in the clear light of truth, in the heat of passions, or in ignorance of danger. But what punishments will be suitable for these crimes? Is death really a useful or necessary punishment for the security or good order of society? Are torture and its instruments just and do they serve the purpose for which laws were made? What is the best way of preventing crimes? Are the same punishments equally useful at all times? What influence do they have on customs? These problems deserve to be solved with that geometrical precision that the fog of sophistry, seductive eloquence, and timid doubt are unable to withstand. If I could claim no other merit than to be the first to have presented to Italy with a bit more clarity what other nations have dared to write and are beginning to practice, I will consider myself fortunate; but if, in upholding the rights of men and the invincible truth, I were to contribute to saving some unfortunate victim of tyranny or ignorance, which is equally fatal, from the spasms and anguish of death, the blessings and tears of even one innocent man in the transports of joy would console me for the contempt of men. XII The Purpose of Punishment From simple consideration of the truths expounded so far, it is evident that the purpose of punishment is neither to torment and afflict a sentient being, nor to undo a crime already committed. How can a political body, which far from acting according to passion calmly moderates the particular passions, harbour this useless cruelty that is the instrument of fury and fanaticism or of weak tyrants? Can the cries of an unfortunate wretch rescue from time, which never reverses its course, deeds already perpetrated? The purpose of punishment, therefore, is none other than to prevent the criminal from doing fresh harm to fellow citizens and to deter others from doing the same. Therefore, punishments and the method of inflicting them must be chosen such that, in keeping with proportionality, they will make the most efficacious and lasting impression on the minds of men with the least torment to the body of the condemned.

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XIII On Witnesses It is a matter of considerable importance in all good legislation to assess accurately the credibility of witnesses and the evidence of the crime. Every reasonable man, that is, everyone whose ideas have some degree of coherence and whose sentiments are similar to those of other men, can be a witness. || The true measure of his credibility is nothing other than his interest in telling or in not telling the truth, and so it seems ridiculous to exclude the testimony of women on account of their weakness, puerile to treat those condemned as if they are dead in fact because they are dead in law, and meaningless to make much ado about the infamy of the infamous, when they have no interest in lying. || Therefore, credibility must diminish in proportion to the hatred, or friendship, or close relationship between the witness and the accused. More than one witness is necessary because, as long as one affirms and the other denies, nothing is certain and the right of every man to be presumed innocent prevails. The credibility of a witness diminishes considerably as the atrocity of the crime* or the improbability of the circumstances increase; witchcraft and gratuitously cruel acts are instances of this. It is more likely that several men would lie in the case of witchcraft, for it is more

* | Among criminal lawyers, the credibility of a witness increases with the atrocity of the crime. Here is the iron axiom, dictated by the cruelest imbecility: In atrocissimis leviores coniecturae sufficiunt, et licet iudici iura transgredi. Let us translate this axiom into ordinary language so that Europeans will see one out of the many equally reasonable dictates to which they are subjected almost without knowing it: ‘In the most atrocious crimes – that is, in the least likely – the slightest conjectures are enough, and the judge is allowed to exceed the limits of the law.’ Absurd legal practices are often the products of fear, which is the chief source of human contradictions. Fearful of convicting someone innocent, legislators (such are the jurisconsults whom chance has authorized to decide on all things and to become, after having been interested and venal writers, arbiters, and legislators of the fortunes of men) burden jurisprudence with the superfluous formalities and exceptions, strict observance of which would enable anarchy to sit with impunity upon the throne of justice. Frightened by some atrocious crimes that are difficult to prove, they imagined themselves obliged to disregard the very formalities they established, and in this way, whether through despotic impatience or effeminate trepidation, they transformed serious trials into a kind of game for which chance and deceit play the principal parts. |

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likely that several men be swayed either by illusion stemming from ignorance or by a persecuting hatred than that a man should exercise a power that God has either not given to, or has stripped from, every created being. The same is true of the case of gratuitous cruelty, because man is cruel only to the extent that it is proportionate with his self-interest, hatred, or imagined fear. Strictly speaking, there is no superfluous sentiment in man; sentiment is always proportional to the effects of the impressions made upon his senses. Likewise, the credibility of a witness may be sometimes diminished when he is a member of a private association whose customs and rules are either not well known or different from those of the public at large. Such a man is moved not only by his own passions, but by those of others as well. Lastly, when the crime is verbal, the credibility of a witness is almost nil, because the tone, the gestures, and everything that precedes and follows the different ideas that men attach to the same words alter and modify the utterances of a man such that it is almost impossible to repeat them exactly as they were said. Moreover, violent and extraordinary actions, which are the real crimes, leave traces of themselves in a multitude of circumstances and in the effects that flow from them; but words remain only in the listeners’ memory, which is generally unreliable and often led astray. A defamatory accusation regarding a man’s words is, therefore, far easier than one concerning his actions, for in the latter case, the greater the number of circumstances adduced as evidence, the more numerous will be the means available to the accused to exonerate himself. | XIV Evidence and Forms of Judgment There is a general theorem that is very useful in calculating the certainty of a fact, for example, the strength of the evidence for a crime. When the proofs of a fact depend upon one another, that is, when the pieces of evidence can only be tested in relation to each other, then the more proofs that are adduced, the less probable the fact, because anything that would impugn the antecedent proofs would impugn subsequent ones as well. || When all the pieces of evidence for a fact

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depend equally upon a single piece of evidence, the number of pieces neither increases nor lessens the probability of the fact, because their whole strength rests on the strength of that single piece upon which they all depend. || When the pieces of evidence are independent of each other, that is, when they can be tested with reference to something else, the more pieces of evidence that are adduced, the more likely a fact will be, because the falsity of one piece of evidence does not affect the validity of the others. I speak of probability with respect to crimes that require certainty if they are to be punished. But this paradox will vanish if one considers that, strictly speaking, moral certainty is nothing but a probability; but it is a probability such that it is considered certainty, because every man of good sense necessarily assents to it out of the force of habit born of the need to act and is prior to any speculation. The certainty required to establish that a man is guilty, therefore, is the same as that which guides every man in the most important endeavours of his life. || The pieces of evidence of a crime can be distinguished between perfect and imperfect. I call perfect those pieces that exclude this possibility that a given man is innocent, and I call imperfect those that do not exclude the possibility. Of the former, even a single piece is sufficient for a conviction; of the latter, as many are required as are needed to form a single perfect piece of evidence; that is, if for each piece of evidence considered on its own, it is possible that a man may be innocent, when taken together it is impossible that he could be innocent. It should be noted that imperfect evidence with which the accused can attempt to exonerate himself becomes perfect if he fails to do so in a satisfactory way. But this moral certainty of evidence is more easily felt than exactly defined. || For this reason, I find that law which provides the principal judge with assessors who are assigned by lot rather than selected to be optimal, for in this case, ignorance, which judges by feeling, is a safer guide than knowledge, which judges by opinion. Where laws are clear and precise, a judge’s duty is merely to ascertain the facts. If the search for evidence of a crime requires skill and dexterity, and if the presentation of the results of the investigation demands clarity and precision, then forming a judgment on the resulting evidence requires nothing more than simple commonsense, which is less prone

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to error than the erudition of a judge accustomed to the notion that guilty people must be found, and who reduces everything to an artificial system borrowed from his own studies. Happy would be that nation whose laws were not a science! The law whereby each man should be judged by his peers is a very useful one, for when a citizen’s liberty or wealth are at stake, those sentiments that inequality inspires should fall silent. Moreover, the sense of superiority with which the wealthy man looks down upon the wretched and the indignation with which the inferior views his superior should have no place in such judgments. But when a crime is an offence against a third party, half of the judges should be the peers of the defendant and half the peers of the plaintiff. In this way, by balancing every private interest that could, even involuntarily, alter the appearance of things, only the laws and the truth are heard. It is also consistent with justice that the accused be able to dismiss, up to a certain point, those whom he finds suspicious; and if he is allowed such dismissals for some time without any opposition, it will seem almost as if the accused is convicting himself. Verdicts and proofs of guilt should be public, so that opinion, which is perhaps the only cement holding society together, may impose a restraint on force and passions, and so that the people may say, ‘we are not slaves, and we are protected’ – a sentiment that inspires courage and is worth as much as a tax to a sovereign who knows his own true interests. I will not mention further details and precautions required by similar institutions. If it were necessary to say everything in order to say anything, I would have said nothing. | XV Secret Accusations Secret accusations are a clear but time-honoured abuse, and in many nations are made necessary by the weakness of the constitution.9 Such a custom makes men deceitful and dissembling. Whoever suspects another of being an informer sees him as an enemy. Men then grow accustomed to masking their feelings, and with the habit of hiding them from others, they end up hiding them from themselves. How unhappy are those men who have reached this point! Without any clear and fixed principles to guide them, they drift lost and aimless in the vast sea of opinions, always struggling to save themselves

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from the monsters that menace them; they live each moment constantly embittered by the uncertainty of the future. Deprived of the lasting pleasures of peace and security, only a few moments of happiness scattered here and there in their sad lives, and devoured in haste and with excess, offer them any consolation for having lived at all. Shall we make of such men the brave soldiers who are to defend the country or the throne? And shall we find among them the honest magistrates who, with free and patriotic eloquence, will sustain and advance the sovereign’s true interests and bring to the throne, along with taxes, the love and blessings of all classes of men, and who on the sovereign’s behalf will bestow upon the palaces and the hovel alike the peace, security, and hope and inventiveness to improve one’s lot, which is the useful leaven and very life of states? Who can defend himself against calumny when it is armed with tyranny’s strongest shield, secrecy? What kind of government is it whose ruler suspects every subject of being an enemy and can only maintain public peace by preventing every individual from enjoying it? | On what grounds are secret accusations and punishments justified? Is it the public welfare, security, and the preservation of the existing form of government? But what a strange state of affairs it must be when those who hold power and have total confidence in its effectiveness, fear every citizen! Is it the safety of the accuser? The laws, then, do not protect him adequately. And there will be subjects more powerful than the sovereign! Is it the infamy of the informer? Then slander in secret is permitted while slander in public is punished! Is it the nature of the crime? If innocuous actions, or even actions useful to the public, are called crimes, then accusations and trials are never secret enough. Can there be crimes, that is, offences against the public, for which it is not in everyone’s interest at the same time that a public example be made, and thus a public verdict? I respect every government and I am not speaking of any one in particular; sometimes the nature of circumstances is such that one might believe that the elimination of an evil inherent in the system would spell the complete ruin of the nation; but if it fell to me to lay down new laws in some abandoned corner of the universe, before authorizing such a practice my hand would tremble and I would have all of posterity before my eyes. |

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It has been said by Monsieur de Montesquieu that public accusations are more suited to a republic, where the public good ought to constitute the principal passion of citizens, than it is to a monarchy, where this feeling is extremely weak owing to the very nature of government, and where the best practice is to appoint commissioners who charge lawbreakers in the public’s name. But every government, republican and monarchic alike, should inflict upon the slanderer the very punishment that the accused would receive. XVI On Torture The torture of a criminal while his trial is being prepared is a cruelty condoned by custom in most nations, whether to compel him to confess a crime, to contradict himself, to discover his accomplices, or for some kind of metaphysical and incomprehensible purgation of infamy, | or, lastly, in order to discover other crimes of which he may be guilty but of which he is not accused. | No man can be considered guilty before the judge has reached a verdict, nor can society deprive him of public protection until it has been established that he has violated the pacts that granted him such protection. What right, then, other than that of force, can empower the judge to inflict punishment on a citizen while his guilt or innocence remains in doubt? This dilemma is not new: either the crime is certain or it is not; if certain, no punishment awaits him other than that which has been established by the laws, and torture is useless because the criminal’s confession is useless; if it is not certain, then one must not torture an innocent man, because in the eyes of the law he is a man whose crimes have not been proven. But I shall add something more: it is a wilful confusion of the relationships between cause and effect to require that a man be at once accuser and accused, and that pain should be made the crucible of truth, as if the criterion of truth lay in the muscles and fibres of a poor wretch. This is a sure way to acquit the robust criminals and to convict the innocent who are weak. These are the deadly disadvantages of this alleged criterion of truth – a criterion worthy of a cannibal – which the Romans, who were themselves barbarians on more than one count, reserved for the slaves alone, the victims of a ferocious and overly praised virtue.

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What is the political purpose of punishment? To instil fear in others. But what justification can we possibly give for the secret and private carnage that the tyranny of custom inflicts on the guilty and the innocent? It is important that no manifest crime go unpunished, but there is no point in discovering who committed a crime that lies buried in darkness. A wrong that has already been committed, and for which there is no remedy, cannot be punished by political society except when it entices others with false hopes of impunity. If it is true that more men, whether from fear or virtue, respect the laws than break them, the risk of torturing an innocent should be considered greater, since there is a greater likelihood that any given man has respected the laws than defied them. Another ridiculous rationale for torture is the purgation of infamy, that is, that a man judged infamous by the law must confirm his testimony with the dislocation of his bones. This abuse should not be tolerated in the eighteenth century. The belief is that pain, which is a sensation, purges infamy, which is a purely moral relationship. Is pain perhaps a crucible? And is infamy perhaps an impure, mixed substance? It is not difficult to retrace the origin of this ridiculous law, because the very absurdities that are adopted by an entire nation always have some relationship to other commonplaces respected by that very nation. This practice seems to have been drawn from religious and spiritual ideas, which exert a great influence on the thoughts of men, nations, and ages. An infallible dogma assures us that the blemishes arising from human frailty, which have not earned the eternal wrath of the Supreme Being, must be purged by an incomprehensible fire. Now, infamy is a civil stain, and since pain and fire eliminate spiritual and incorporeal stains, won’t the spasms of torture eliminate the civil stain of infamy? I believe that the confession of the accused, which in some tribunals is required for conviction, has a similar origin, for, in the mysterious tribunal of penance, the confession of sins is an essential part of the sacrament. This is how men misuse the most certain lights of revelation; and since these are the only lights that exist in times of ignorance, it is to these that docile humanity always runs, making of them the most absurd and far-fetched uses. But infamy is a sentiment that is subject neither to laws nor reason, but to common opinion. Torture itself causes real

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infamy to its victims. Thus, by this method, infamy is removed by inflicting infamy. The third rationale for torture concerns its use on suspected criminals when they contradict themselves during interrogation, as if the fear of punishment, the uncertainty of the sentence, the pomp and majesty of the judge, and the ignorance that is common to nearly all of the wicked and the innocent alike, were not enough to plunge into contradiction both the innocent who is afraid and the criminal who seeks to cover himself; as if contradictions, which are common enough when men are at ease, are not likely to be multiplied in the turbulence of a mind wholly absorbed in the thought of saving itself from imminent danger. This shameful crucible of truth is an enduring monument to the law of ancient and savage times, when ordeals by fire, by boiling water, and the uncertain fate of armed combat were called judgments of God, as if the links of the eternal chain that emanates from the bosom of the First Mover had to be uncoupled and thrown into disarray at every moment for the sake of frivolous human institutions. The only difference between torture and ordeals by fire or boiling water is that the outcome of the former seems to depend upon the will of the accused, while the outcome of the latter depends upon a purely physical and extrinsic fact; but this difference is only apparent, not real. Speaking the truth in the midst of spasms and agony is as little a free action as was in an earlier era the attempt to thwart the effects of fire and boiling water without recourse to trickery. Every act of our will is always proportional to the force of the sensory impression from which it springs; and the sensory capacity of every man is limited. Therefore, the impression of pain may increase to such a degree that, filling the entire sensory capacity, it leaves the torture victim no liberty but to choose the shortest route to relieve his pain momentarily. Under these circumstances, the statements made by the accused are as inevitable as the impressions made by fire and water. And thus the innocent and sentient man will declare himself guilty if he thinks that doing so will make the pain cease. All differences between the guilty and the innocent disappear as a consequence of the use of the very means ostensibly employed to discover them. | It would be redundant to cast further

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light upon this by citing the innumerable examples of innocent men who confessed their guilt amid the spasms inflicted by torture; there is no nation and there is no age that cannot cite its own examples, but men neither change nor draw conclusions from these cases. There is no man who has pushed his ideas beyond the necessities of life who does not sometimes run towards nature, which beckons him with secret and indistinct voices; but custom, that tyrant of the mind, drives him back and frightens him. | The outcome of torture, therefore, is a matter of temperament and calculation, which varies with each man according to his sturdiness and sensibility, so that, with this method, a mathematician would solve the following problem better than a judge could: given the strength of an innocent man’s muscles and the sensitivity of his fibres, one need only to find the degree of pain that will make him confess his guilt for a given crime. The interrogation of an accused man is undertaken to ascertain the truth, but if this truth is difficult to discover from the demeanour, gestures, and expression of a person at ease, it will be much more difficult to discover it in a man whose convulsions of pain have distorted all the signs by which the truth is sometimes revealed on the faces of most men despite their wishes. Every violent action confuses and eliminates the tiny differences in things by which the truth may sometimes be distinguished from falsehood. These truths were known to the Roman legislators, for whom the use of torture was to be limited to slaves, who were denied the status of persons; these truths are known by legislators in England, a nation whose glory in letters, superiority in commerce and in wealth, and therefore in power, and whose examples of virtue and courage leave no doubt as to the goodness of its laws. Torture has been abolished in Sweden10 and by one of the wisest monarchs of Europe,11 who, having brought philosophy to the throne and being a legislator friendly to his subjects, has made them equal and free under the laws, which is the only equality and liberty that reasonable men can demand in the present state of affairs. Torture is not deemed necessary by the laws regulating armies, even though they are made up for the most part of the scum of nations and would seem to have more use for it than any other group. It must seem strange, for someone who does

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not take into account how great the tyranny of custom is, that peaceful laws should have to learn a more humane method of judgment from spirits hardened in slaughter and blood. This truth is even felt, albeit confusedly, by those very men who distance themselves from it. A confession made under torture is not valid unless it is confirmed by oath after the torture has ceased, but if the accused does not confirm the crime, he is tortured anew. Some learned men and some nations allow this infamous questionbegging12 only three times; other nations and learned men leave it to the discretion of the judge, and in this way, of two men who are equally innocent or equally guilty, the robust and courageous man will be acquitted and the feeble and timid man will be convicted by virtue of this strict line of reasoning: I, the judge, was supposed to find you guilty of such-and-such a crime; you, the strong, were able to resist the pain, so I acquit you; you, the weak, succumbed, so I convict you. I feel that the confession wrung from you by torture will carry no weight at all, but I will torture you anew if you do not confirm what you have confessed. A strange consequence that necessarily follows from the use of torture is that the innocent individual is placed in a worse condition than the guilty; for if both are tortured, every outcome is stacked against him, because either he confesses to a crime and is convicted or he is declared innocent and has suffered an undeserved punishment. The criminal, on the other hand, is in a favourable position, for when he firmly withstands the torture he must be acquitted as innocent; he will have exchanged a greater punishment for a lesser one. Thus, the innocent cannot but lose and the guilty only stand to gain. The law that orders torture is a law that says: Men, withstand pain; and if nature has created in you an inextinguishable self-love, if it has granted you an inalienable right of self-defence, I create in you a totally opposite emotion – that is, a heroic hatred of yourselves – and I command you to accuse yourselves, telling the truth even while your muscles are being torn and your bones dislocated. | Torture is also applied to discover whether the guilty man has committed crimes in addition to those for which he has been charged; this amounts to the following line of reasoning: You are guilty of one crime, so it is possible that you are also guilty of a hundred other crimes;

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this doubt weighs on me, and I want to assure myself by using my criterion of truth; the laws torment you because you are guilty, because you could be guilty, because I want you to be guilty. | Lastly, torture is applied to the accused in order to discover his accomplices in crime; but if it has been demonstrated that torture is not an effective means to discover the truth, how can it serve to reveal the accomplices, which is one of the truths to be discovered? As if the man who accuses himself will not more readily accuse others. Is it just to torture a man for the crime of another? Will his accomplices not be discovered in the questioning of witnesses, the interrogation of the accused, the evidence and the corpus delicti, in short, by all of the same means that ought to be employed to establish the suspect’s guilt? Accomplices generally flee as soon as their partner is captured, and the uncertainty of their fate alone condemns them to exile and frees the nation from the danger of further offences, while the punishment of the criminal who has been apprehended achieves its sole goal, that is, to deter with fear other men from committing a similar crime. || XVII On the Treasury There was a time when almost all punishments were pecuniary. The crimes of men were the prince’s patrimony. Attacks on public security were an object of gain. Those charged with defending the public security had an interest in seeing it affronted. The way of exacting punishment thus involved litigation between the treasury (the collector of these fines) and the criminal; it was a civil and contentious affair, more private than public, and it gave to the treasury rights other than those designated for public protection, while it burdened the criminal with penalties beyond those required to set an example. The judge, therefore, was counsel more for the treasury than an impartial seeker of the truth, a revenue agent rather than the defender and minister of the laws. But since to confess one’s guilt in this system was tantamount to confessing oneself a debtor to the treasury, which in those days was the aim of criminal proceedings, the confession of a crime – a confession so prepared as to favour rather than harm the interests of the

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treasury – became and remains to this day (for the effects always continue to outlast their causes) the centre around which all criminal proceedings revolve. Without such a confession, a criminal convicted on indubitable evidence will receive a lesser punishment than what has been established; without it he will not be subjected to torture for other similar crimes he may have committed. With such a confession, the judge takes possession of the criminal’s body and tears it apart with methodical formalities in order to extract all the profit he can, as if the man’s body were an acquired property. Once the existence of a crime has been proven, confession makes the proof convincing; and in order that this proof – which has been extracted forcibly through spasms and in the desperation born of pain – be seen as less suspect, a calm and impartial confession given out of court without the intimidating fears of judicial torture must at the same time be seen as insufficient to secure a conviction. Inquiries and evidence that elucidate the facts but weaken the interest of the treasury are excluded. It is not out of concern for misery and weakness that the accused is sometimes spared torture, but out of concern for the settlements that this imaginary and inconceivable entity might lose. The judge becomes an enemy of the accused, of a man in chains, abandoned to squalor, to torture, and to the most terrible future; he does not search for the truth of the matter, but for the crime in the prisoner; he lays traps for the prisoner, and if he fails to ensnare him, he will consider it a personal defeat, thereby impugning that infallibility that man arrogates to himself in all matters. It is in the power of the judge to determine what evidence is sufficient for incarceration. For anyone to prove himself innocent, he must first be declared guilty: this is what is called an offensive trial, and the criminal proceedings in almost every part of enlightened Europe in the eighteenth century are of this type. The true trial, the informative, which consists in the impartial search for the facts and is what reason demands, what military laws employ, and what is used by Asiatic despotism in peaceful and trivial cases, is rarely used in European tribunals. What a complicated labyrinth of strange absurdities, which a happier posterity will, no doubt, find incredible! Only the philosophers of that future time will be able to explain how human nature could give rise to such a system. ||

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XVIII On Oaths A contradiction between the laws and the natural sentiments of man arises from the oaths that the accused is required to take in the effort to make him truthful when he has the greatest interest in being deceitful – as if a man could dutifully swear to contribute to his own destruction, and religion did not fall silent in most men when their interests speak. Centuries of experience have shown that men have abused this precious gift from Heaven more than any other. And why should the wicked respect religion, when those men that are considered the wisest have often violated it? For the majority of men, the motives that religion opposes to the tumult of fear and to the love of life are too weak because they are too distant from the senses. The affairs of Heaven are ruled by laws altogether different from those that govern human affairs. Why compromise the former with the latter? Why place men in the terrible dilemma of either failing God or contributing to their own ruin? The law that requires such an oath commands one to be either a bad Christian or a martyr. Little by little, the oath becomes a mere formality, and thereby destroys the strength of religious feelings, which for most men are the sole guarantee of honesty. Experience has shown how useless oaths are, for any judge can be my witness that no oath has ever made a guilty man tell the truth; the same is shown, moreover, by reason, which deems useless – and thus harmful – all laws that contradict the natural feelings of man. Such laws suffer the same fate as embankments that are erected in the opposite direction of the river current: either they are immediately knocked down and swept away, or the whirlpool they create imperceptibly erodes and undermines them. XIX On the Promptness of Punishment The swifter the punishment is and the sooner it follows the crime, the more just and useful it will be. I say more just, because it spares the criminal the useless and violent torments of uncertainty, which grow with the vigour of one’s imagination and the sense of one’s own weakness; more just, because the loss of liberty is itself a punishment and

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cannot precede the sentence, except when required by necessity. Imprisonment, therefore, entails simply holding a citizen in custody until he may be judged guilty, and since such custody is essentially punitive, it should last the minimum time possible and should be as clement as possible. The minimum amount of time should be determined both by the length of time necessary for the trial and by the right of those who have been held in custody the longest to be tried first. The strictness of incarceration should not exceed whatever is necessary to prevent escape or the concealment of evidence. The trial itself should be completed in the briefest time possible. What contrast could be more cruel than the one between the indolence of a judge and the anguish of the accused – between, on the one hand, the comforts and the pleasures of an unfeeling magistrate and, on the other, the tears and squalid condition of a prisoner? In general, the severity of punishment and the consequence of a crime should have the greatest impact on others and be as mild as possible for the man who suffers it, for a society cannot be called legitimate where it is not an unerring principle that men should be subjected to the least harm possible. I have said that the promptness of punishment is more useful, for the less time that passes between misdeed and punishment, the stronger and more lasting in the human mind is the association of the two ideas crime and punishment, so that imperceptibly one will come to be considered as the cause and the other as the necessary and inevitable effect. It is well established that the association of ideas is the cement that binds the whole fabric of the human intellect, and that without it pleasure and pain would be isolated feelings devoid of effect. The further removed men are from general ideas and universal principles, that is, the less refined they are, the more they act upon immediate and very familiar associations, ignoring the more remote and complicated ones that are useful only to men strongly impassioned for the object that they desire, for the light of their attention illuminates one sole object, leaving all others in darkness. They are likewise useful to more sophisticated minds, for they have acquired the habit of rapidly surveying many objects at once, and they have the ability to compare many partial feelings with one another, so that the result, which is action, is less dangerous and unsure.

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The proximity of crime and punishment is thus of utmost importance if one wants the idea of punishment to be immediately associated in unsophisticated minds with the alluring picture of some gainful crime. Long delay only serves to separate these two ideas evermore. And whatever impression the punishment of a crime may make, | it makes less as punishment than as spectacle, and | it will be felt only after the horror of the particular crime, which should serve to reinforce the feeling of punishment, has grown weak in the minds of the spectators. Another principle serves admirably to draw even closer the important connection between a misdeed and its punishment, namely, that punishment should conform as far as is possible to the nature of the crime. This analogy facilitates quite well the contrast that should exist between the inducement to crime and the repercussion of punishment, so that the latter draws the mind away and guides it towards an end other than the one towards which the alluring idea of breaking the law seeks to lead it. XX Violent Crimes Some crimes are assaults against the person; others are offences against property. The former should always be punished with corporal punishments: the rich and the powerful should not be able to make amends for assaults against the weak and the poor by naming a price; otherwise, wealth, which is the reward of industry under the tutelage of the laws, becomes fodder for tyranny. There is no liberty whenever the laws permit a man in some cases to cease to be a person and to become a thing: then you will see the efforts of the powerful dedicated entirely to eliciting from the mass of civil relations those in which the law is to his advantage. This discovery is the magic secret that transforms citizens into beasts of burden and that, in the hands of the strong, is the chain that fetters the actions of the incautious and the weak. This is why in some governments that have every appearance of liberty, tyranny lies hidden or insinuates itself unseen into some corner neglected by the legislator, where imperceptibly it gathers strength and grows. Generally, men set up the most solid embankments against open tyranny, but they do not see the tiny

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insect that gnaws away at them and opens a path for the river’s flood, a path that is all the more certain to develop the more hidden it is. | XXI The Punishment of Nobles What, then, shall be the punishments that fit the crimes of nobles, whose privileges make up such a large a part of the laws of nations? I will not examine here whether this hereditary distinction between nobles and commoners is useful in government, or necessary in a monarchy, whether it really constitutes an intermediary power that limits the excesses of the two extremes, or whether it does not rather create a class that is a slave to itself and to others, and restricts the circulation of credit and hope to a very tight circle, similar to those fertile and pleasant little islands that stand out in the vast and sandy deserts of Arabia. Nor shall I examine whether, supposing it to be true that inequality is inevitable or useful to society, it is equally true that this inequality should obtain between classes rather than individuals, whether it should be limited to one group rather than distributed throughout the body politic, or whether it is self-perpetuating rather than continually renewed and destroyed. I shall confine myself entirely to the punishments befitting the nobility, arguing that punishments should be the same for the highest as they are for the lowest of citizens. To be legitimate, every distinction, whether it be in honour or wealth, presupposes an anterior equality founded on the laws, which treat all subjects as equally subordinate to them. It is to be supposed that men who gave up their natural despotism have said: Let him who is the most industrious have the greatest honours, and let his fame shine upon his successors; but while he who is happiest and most honoured may hope for more, let him fear no less than others to violate those pacts by which he is raised above them. It is true that such decrees never issued from an assembly of all humankind, but they exist in the immutable relations of things. They do not destroy the advantages allegedly produced by the nobility, and they prevent its untoward effects. They make the laws formidable by foreclosing every path to impunity. To those who argue that the same punishment dealt to a nobleman and a commoner is not really the same because of the difference in their upbringing, as

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well as the disgrace smeared upon an illustrious family, I would reply that punishment is measured not by the sensitivity of the guilty man but by the injury done to society, which is all the greater when committed by the more privileged; that equality of punishment can only be extrinsic, for it is actually different for each individual; and that a family’s disgrace may be eliminated by the sovereign through public demonstrations of benevolence towards the criminal’s innocent family. For isn’t it well known that conspicuous formalities take the place of reason in the credulous and admiring people? | XXII Theft Thefts committed without the use of violence should receive pecuniary punishments. Whoever seeks to enrich himself at the expense of others should be deprived of his own wealth. But since this is generally a crime born of poverty and desperation, a crime of that unhappy segment of men for whom the right of property (a terrible and perhaps unnecessary right)13 has left them nothing but a bare existence, and since pecuniary punishments increase the number of criminals beyond the number of crimes and take bread from the innocent when taking it from the wicked, the most fitting punishment | shall be the only sort of slavery that can be called just: the temporary enslavement of the labour and person of the criminal to society, so that through his complete personal subordination he may make amends for the unjust despotism he has exercised against the social pact. But when the theft involves violence as well, punishment should be likewise a combination of corporal punishment and penal servitude. Other writers before me have shown the manifest confusion that arises from failing to distinguish the punishments for violent robbery from those for thefts committed by fraud by making an absurd equation between a great sum of money and the life of a man; but it is never superfluous to repeat something that has almost never been put into practice. Political machines, more than any other, retain their initial momentum and they are the slowest in acquiring a new direction. These crimes are different in nature, and the mathematical axiom that an infinity separates two different numbers holds just as true even in politics.

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XXIII Public Disgrace Personal injuries that impugn one’s honour, that is, that impugn the just share of esteem that a citizen may rightly expect from others, should be punished with public disgrace. Disgrace is a sign of public disapproval that deprives the criminal of public esteem, the country’s trust, and that almost fraternal bond that society inspires. It is not something that falls within the purview of the law. It is necessary, therefore, that the disgrace that the law inflicts should be the same as that which arises from the relationship among things, the same disgrace that is inspired either by universal morality, or by the particular values that derive from particular systems, which rule common opinions and the particular nation inspired by those opinions. If one kind of disgrace differs from the other, either the law loses public deference or ideas of morality and probity vanish despite all the rhetoric, which can never withstand the weight of examples. Anyone who declares deeds to be disgraceful when they are in themselves matters of indifference diminishes the infamy of deeds that are truly disgraceful. Punishments involving disgrace should not be too frequent, nor should they fall upon a great number of persons at once: in the first case because concrete and overly frequent use of such punishments in matters of opinion weakens the force of opinion itself; in the second case because to disgrace many amounts to disgracing no one in particular. || Corporal and painful punishments should not be administered for crimes that, founded on pride, derive glory and nourishment from the pain itself. Ridicule and disgrace are more suitable for such crimes, for they are punishments that check the pride of fanatics with the pride of the spectators; and it is through the tenacious application of such punishments that the truth itself may work its way out through slow and obstinate efforts. In this way, by setting force against force and opinion against opinion, the wise legislator ruptures the admiration and wonder that a false principle engenders in the people, the correctly deduced consequences of which tend to conceal its original absurdity from the common people. || This is the way to avoid confusing the relations and immutable nature of things that, not limited by time and continuously operative,

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disrupts and overturns all limited regulations that stray from it. It is not only the arts of taste and pleasure that have as their universal principle the faithful imitation of nature, but politics itself – at least, any true and lasting politics – falls under this general maxim, for it is nothing other than the art of how best to guide and render harmonious the immutable sentiments of mankind. XXIV Idlers Anyone who disturbs the public peace, who does not obey the laws, which are the terms by which men mutually abide and defend themselves, should be excluded from society – in other words, he must be banished. This is why wise governments do not tolerate, in the midst of labour and industriousness, that kind of political idleness that has been confused by austere moralists with the idleness born of wealth accumulated through hard work – an idleness that is necessary and useful insofar as society expands and the administration of public affairs is consolidated. By political idleness I mean that sort of inactivity that does not contribute to society either through labour or wealth, that acquires without ever losing, that is venerated by the common people with stupid admiration and regarded by the wise with disdainful compassion for those beings who are its victims and who, lacking the impetus to an active life that derives from the necessity to protect or increase the comforts of life, leave everything to the passions of opinion, which are by no means the weakest of passions. Someone cannot be considered politically idle if he enjoys the fruits of the vices or virtues of his own ancestors, and gives bread and livelihood to the industrious poor in exchange for his immediate pleasures – someone who, with his wealth, peacefully wages a silent war of industry rather than an uncertain and bloody war through the use of force. And for this reason it is not the austere and modest virtue of a few censors but the laws that must define what type of idleness should be punished. || It seems that banishment should be imposed on those who, once accused of an atrocious crime, have a great probability but no certainty of being guilty. But for this it is necessary to have a statute that

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is as little arbitrary and as specific as possible, a statute that condemns to banishment anyone who has placed the nation in the fatal dilemma of fearing him or doing him harm, while preserving for him the sacred right of proving his innocence. The evidence would have to be more substantial in a case against a citizen than against a foreigner, and in a case against someone accused for the first time than in a case against someone who has been charged many times. || XXV Banishment and Confiscations But should someone who is banished and excluded forever from the society of which he was a member be deprived of his possessions? Such a question can be considered from different points of view. The loss of one’s possessions is a greater punishment than that of banishment; so there ought to be some cases in which, in proportion to the crime, there should be a partial or complete forfeiture of one’s possessions, and other cases in which there is no forfeiture at all. The forfeiture of all possessions will obtain when the banishment ordained by law is such as to sever all ties between society and the delinquent citizen; in this case, the citizen dies and the man remains alive, and as far as the body politic is concerned, this should produce the same effect as natural death. It would seem, therefore, that the possessions taken from the guilty man should pass to his lawful heirs rather than to the prince, since death and a banishment of this kind are the same thing as far as the body politic is concerned. But it is not on the grounds of this subtlety that I dare to disapprove of the confiscation of possessions. If some have maintained that confiscations have bridled acts of vendetta and private bullying, they fail to consider that, even if punishments produce some good, they are not always just, because to be just they must be necessary. Even a useful injustice must not be tolerated by the legislator who wishes to close every door to the vigilant tyranny that entices with temporary advantages and with the happiness of a few illustrious individuals, while scorning future destruction and the tears of innumerable common people. Confiscations put a price on the heads of the weak; they make the innocent suffer the punishment of the guilty, and place the

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innocent themselves into the desperate necessity of committing crimes. What spectacle could be sadder than that of a family dragged down in disgrace and poverty by the crimes of its head, when their legally ordained subjection to him made them unable to prevent his crimes, even if there had been the means to do so! XXVI On the Spirit of the Family These insidious, albeit authorized, injustices have been sanctioned by even the most enlightened men and practised by the freest republics, for society has been considered a union of families rather than a union of individuals. Suppose that there are one hundred thousand people, divided into twenty thousand families, each composed of five persons, including the head of the family who represents it: if the association is considered as consisting of families, then there will be twenty thousand men and eighty thousand slaves; if the association is considered as consisting of individuals, then there will be a hundred thousand citizens and not a single slave. In the former case, there will be one republic comprised of twenty thousand little monarchies; in the latter case, the republican spirit will breathe not only in the public squares and assemblies of the nation, but also within the walls of the home, where much of man’s happiness or misery is to be found. Since laws and customs are the product of the habitual sentiments of the members of a republic, in the former case dealing with heads of households, the monarchic spirit will gradually permeate the republic itself, and its effects will be checked only by the conflict of individual interests, not by any feeling animated by liberty and equality. The spirit of the family is a spirit of details and is limited to small matters. The spirit that regulates republics, which is the master of general principles, observes facts and reduces them to the main categories that are important for the good of the greatest number. In the republic of families, children remain under the power of the head of the household for as long as he lives, and must wait until his death to be able to live a life governed by laws alone. Accustomed to submission and fear in their youthful and most vigorous years, when their feelings are least influenced by that fear born of experience

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which goes by the name of moderation, how will they overcome the obstacles that vice always places in the way of virtue in their languid and decrepit old age, when even the despair of ever seeing the results stands in the way of any far-reaching changes? When the republic is made up of individuals, subordination within the family is not a matter of command but of contract; and when children, having reached that age in which they are free from the natural dependence that stems from weakness and the need for education and protection, become free members of the city, they submit to the head of the family in order to share in its advantages, just as free men do in society at large. In the case of a republic comprised of families, the children – that is, the largest and most useful part of the nation – are subject to the whim of their fathers; in the case of a republic comprised of individuals, there is no compulsory bond other than the sacred and inviolable duty to provide mutual aid and the obligation to show gratitude for the benefits received – a bond that is destroyed not so much by the malice of the human heart as by its misguided imposition established by the laws. Such contradictions between the laws of the family and the fundamental laws of a republic are a fertile source of other contradictions between domestic and public morality, and give rise to a perpetual conflict in the mind of every individual. The former inspires subjection and fear, the latter courage and liberty. The former teaches that beneficence should be limited to a small number of persons that have not even been freely chosen, the latter that it should be extended to every class of men. The former demands continuous self-sacrifice to a vain idol called the good of the family, which frequently is not the good of any of the members that comprise it, while the latter teaches one to pursue one’s own interests without violating the laws, or else it excites one to patriotic self-sacrifice by placing a premium on the fanaticism that prompts one into action. Such conflicts make men scorn the pursuit of virtue, which they find tangled and confused, and about as remote as that distance that obtains from the obscurity of both physical and moral objects. How often has a man looking back on his past actions been astonished to find that he has been dishonest! As society grows, each member becomes a

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smaller fraction of the whole, and the republican sentiment diminishes proportionately unless the laws take care to reinforce it. Like human bodies, societies have their circumscribed limits, and if they grow beyond these limits, their economy will necessarily be upset. It seems that the size of a state should vary inversely with the sensibility of its members; otherwise, with the growth of both, good laws would find that the very good that they themselves have produced will be an obstacle to the prevention of crimes. A republic that is too vast can save itself from despotism only by subdividing itself and uniting into so many federated republics. But how can this be achieved? By a despotic dictator with the courage of Sulla, and with as much genius for building as Sulla had for destroying.14 If such a man be ambitious, the glory of all the ages awaits him; if he be a philosopher, the blessings of his fellow citizens would console him for his loss of authority, if he were not to grow indifferent to their ingratitude. The weaker the sentiments become that unite us to the nation, the stronger the sentiments for things immediately around us grow, and this is why under the harshest despotism friendships are strongest and most enduring, and the always modest virtues of the family are the most common or rather the only ones. Anyone can see from this just how limited the vision of most of our legislators has been. XXVII Mildness of Punishments But the flow of my ideas has carried me away from my topic, which I must hurry to elucidate. One of the greatest checks on crimes is not the cruelty of punishments, but the inevitability of punishment, and this, therefore, requires the vigilance of the magistrates, as well as that kind of inexorable judicial severity that, if it is to be a useful virtue, must be accompanied by mild legislation. The certainty of a punishment, even if it is moderate, will always make a stronger impression than the fear of another, more terrible punishment, but that carries with it the hope of impunity; for, even the least of evils, when they are certain, always frightens men’s minds, while hope – that heavenly gift that is often our sole recompense for everything – always holds at bay the idea of greater evils, especially when hope is reinforced by the

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impunity that greed and weakness only too often afford. The atrocity of a punishment itself, and the greater evil the criminal faces, makes him even bolder in trying to avoid punishment, and leads him to commit even more crimes in order to escape punishment for any single one of them. The countries and ages in which punishments have been the most atrocious have always been those of the bloodiest and most inhumane actions, because the same ferocious spirit that guided the hand of the legislator also governed the hand of the parricide and the assassin. From the throne, this spirit dictated ironclad laws for the savage souls of slaves, who obeyed. In private darkness, it moved men to sacrifice tyrants in order to create new ones. As punishments become more cruel, the minds of men, which like fluids always adjust to the level of the objects that surround them, become hardened, and the ever lively force of passions is such that after a hundred years of cruel punishments, breaking on the wheel causes no more fear than imprisonment previously did. For a punishment to achieve its objective, it is only necessary that the harm that it inflicts outweighs the benefit that derives from the crime, and into this calculation ought to be factored the certainty of punishment and the loss of the good that the commission of the crime would produce. Everything beyond this is superfluous and, therefore, tyrannical. Men regulate their conduct according to the repeated experience of the harms they know, not according to those that they do not know. Let us imagine two nations, each with a scale of punishments proportionate to crimes; in one, the maximum punishment is perpetual slavery and in the other it is breaking on the wheel. I maintain that there will be as much fear of the maximum punishment in the former as in the latter; and if there were some reason to introduce into the former the more severe punishments of the latter, the same rationale would prompt an increase in the harshest punishments of the latter, thereby passing imperceptibly from breaking on the wheel to slower and more elaborate forms of torture until it reached the ultimate refinements of that science that tyrants know all too well. Two other disastrous consequences follow from the cruelty of punishments and run counter to the very objective of preventing crimes. The first is that it is not so easy to maintain a proper proportion

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between crime and punishment, for no matter how much industrious cruelty may have multiplied the varieties of punishment, they still cannot exceed the limit of endurance set by the human organism and sensibility. When this limit has been reached, it would be impossible to find a correspondingly greater punishment for more harmful and atrocious crimes, as would be necessary to prevent them. The other consequence is that impunity itself arises from the atrocity of punishments. Men are bound within limits, no less in evil than in good; and a spectacle that is too atrocious for humanity can only be a passing fury, never an enduring system such as the laws must be. If the laws are truly cruel, they must be changed or fatal impunity will arise from the laws themselves. When reading history, who does not shudder with horror at the barbaric and useless tortures that have been cold-bloodedly invented and practised by men who considered themselves wise? Who can fail to be deeply shaken at the sight of thousands of wretches whom poverty – whether willed or tolerated by the laws, which have always favoured the few and abused the many – has dragged desperately back to the original state of nature, and who have been either accused of impossible crimes fabricated by fearful ignorance or found guilty of nothing more than remaining faithful to their own principles by men endowed with the same senses (and hence the same passions), and who are then torn apart with deliberate formality and slow tortures, creating a blithe spectacle for a fanatical multitude? XXVIII On the Death Penalty This futile excess of punishments, which have never made men better, has impelled me to consider whether the death penalty is really useful and just in a well-organized state. By what right can men presume to slaughter their fellows? Certainly not that right from which sovereignty and the laws derive. These are nothing but the sum of the smallest portions of the personal liberty of each individual; they represent the general will, which is the aggregate of particular wills. Who has ever willingly given other men the authority to kill him? How could it ever be possible that this minimal sacrifice of each individual’s

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liberty include the greatest of all goods, life itself? And even if this were the case, how could this be reconciled with the other principle that man is not free to take his own life, which he must have been if he were able to surrender that right to others or to society as a whole? Thus, as I have just shown, the death penalty is not a right, but the war of a nation against a citizen, which has deemed the destruction of his being to be necessary or useful. But if I can demonstrate that the death penalty is neither useful nor necessary, I will have won the cause of humanity. The death of a citizen cannot be deemed necessary, except on two grounds. The first is when he retains such connections and such power that he endangers the security of the nation even when deprived of his liberty, that is, when his very existence can provoke a dangerous revolution in the established form of government. The death of such a citizen, then, becomes necessary when a nation is recovering or losing its liberty, or in time of anarchy, when disorder itself takes the place of laws. But when the calm rule of law prevails, under a form of government that has the support of the nation, which is well-fortified both externally and internally by both force and opinion (which is perhaps more efficacious than force itself), and in which the power to rule is vested only in the true sovereign and wealth can buy only pleasures not authority, I do not see any need to destroy a citizen, unless his death were the only real way to deter others from committing crimes. And this is the second reason for believing that the death penalty could be just and necessary. If centuries of experience, during which the ultimate punishment has never deterred men determined to harm society; if the example of the citizens of Rome or the twenty-year reign of the Empress Elizabeth of Moscovy,15 during which she gave the leaders of all peoples an illustrious example worth at least as much as many conquests bought with the blood of her country’s sons – if none of this has convinced men, for whom the voice of reason is always suspect while the voice of authority is compelling, then it suffices to consult human nature in order to appreciate the truth of my assertion. It is not the intensity of the punishment that has the greatest effect on the human mind, but its extension, for our sensibility is more easily

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and firmly affected by small but repeated impressions than by a strong but fleeting action. The rule of habit is universal over every sentient being, and just as habit helps man to walk and talk and satisfy his needs, so moral ideas are impressed upon the mind only by enduring and repeated blows. It is not the terrible but fleeting spectacle of a criminal’s death that is the most powerful brake on crimes, but the long and arduous example of a man deprived of his liberty, who, having become a beast of burden, repays the society he has offended through his toils. Much more compelling than the idea of death, which men always perceive at a vague distance, is that efficacious because often repeated reflection that I myself shall be reduced to such a protracted and miserable condition if I commit similar misdeeds. The death penalty makes an impression that, despite all of its force, cannot compensate for the inclination to forgetfulness, which is natural to man even in the most important matters and is hastened by the passions. As a general rule, violent impressions16 surprise men, but not for long, and are therefore suitable to bring about those revolutions that turn ordinary men into Persians or Lacedaemonians; but under a free and peaceful government, the impressions made should be frequent rather than strong. For most people, the death penalty becomes a spectacle and for some an object of compassion mixed with indignation. Both of these sentiments occupy the minds of the spectators more than the salutary fear that the law claims to inspire. But with moderate and prolonged punishments, the dominant sentiment is the latter, because it is the only one. The limit that the legislator should set on the severity of punishments seems to be that point at which the feeling of compassion begins to prevail over every other in the minds of those who witness a punishment, which is inflicted more for their sake than the criminal’s. | For a punishment to be just, it must have only that degree of intensity that suffices to deter men from crime. Now, there is no one who, upon reflection, would choose the total and permanent loss of his own liberty, no matter how advantageous a crime might be: therefore, the intensity of perpetual penal servitude, substituted for the death penalty, has all that is necessary to deter even the most determined mind. Indeed, I would say that it has even more: a great many

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men look upon death with a calm and steady gaze, some out of fanaticism, some out of vanity (which almost always accompanies man beyond the grave), and some out of a final and desperate attempt either to live no longer or to escape from poverty. But neither fanaticism nor vanity survives in fetters or chains, under the cudgel and the yoke, or in an iron cage; and the desperate man finds that his woes are just beginning rather than ending. Our mind withstands violence and extreme but fleeting pains better than it does time and unending tedium, for it can, so to speak, collect itself for a moment to repel the former, but its vigorous elasticity does not suffice to resist the prolonged and repeated action of the latter. With the death penalty, every example given to the nation requires a crime; with permanent penal servitude, a single crime provides many and lasting examples. And if it is important that men frequently observe the power of the laws, executions must not be separated by long intervals: they, therefore, require that crimes be committed frequently, and thus in order for this punishment to be useful, it is necessary that it not make the full impression on men that it should, that is, it must be useful and useless at the same time. To those who would say that permanent penal servitude is as painful as death, and therefore, equally cruel, I shall reply that, adding up all of the unhappy moments of slavery, it may very well be even more so, but these moments are drawn out over an entire lifetime, while death exerts the whole of its force in a single moment. And this is the advantage of penal servitude, which frightens those who witness it more than those who suffer it, for the former consider the entire sum of unhappy moments, while the latter are distracted from future unhappiness by the unhappiness of the present moment. All harms are magnified in the imagination, and the sufferer finds resources and consolations unknown and unbelievable to the spectators, who substitute their own sensibility for the hardened heart of the wretch. | Here, more or less, is the line of reasoning followed by a thief or an assassin, who has nothing to act as a counterweight against violating the laws but the gallows or the wheel. I know that developing the sentiments of one’s own mind is an art that is learned through education; but the fact that a thief may not be able to articulate his principles well

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does not mean that they are any less operative. What are these laws that I am supposed to respect, which leave such a great gap between me and the rich man? He denies me the penny I ask of him and justifies himself by ordering me to work, something with which he himself is unfamiliar. Who made these laws? Rich and powerful men who have never deigned to visit the squalid hovels of the poor, who have never broken mouldy bread amid the innocent cries of hungry children and a wife’s tears. Let us break these ties, which are harmful to the majority and useful only to a few and to indolent tyrants; let us attack injustice at its source. I will return to my natural state of independence; for awhile, I will live free and happy on the fruits of my courage and my industry; perhaps the day for pain and repentance will come, but it will be brief, and I will have a single day of suffering for many years of liberty and pleasure. King of a few men, I will set fortune’s errors right, and I will see these tyrants turn pale and tremble in the presence of one whom, with insulting ostentation, they considered lower than their horses and dogs. Then religion comes into the mind of the scoundrel, who misuses everything, and, offering him an easy repentance and near-certainty of eternal happiness, greatly diminishes the horror of the final tragedy. But a man who sees a great number of years ahead of him, or even the rest of his life, to be spent in slavery and suffering in the sight of his fellow citizens with whom he lives freely and sociably, a slave to those laws by which he was protected, will make a useful comparison between all of this, the uncertain outcome of his crimes, and the brief time during which he would be able to enjoy their fruits. The continuous example of those whom he actually sees as victims of their own imprudence makes a much stronger impression on him than the spectacle of a punishment that hardens more than it reforms him. The death penalty is not useful because of the example of cruelty that it gives to men. If the passions or the necessities of war have taught us how to shed human blood, the laws, which moderate the conduct of men, should not augment that cruel example, which is all the more baleful when a legal killing is applied with deliberation and formality. It seems absurd to me that the laws, which are the expression of the public will, and which execrate and punish homicide, should themselves commit one, and that to deter citizens from murder they should order a public murder. What are the true and most

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useful laws? Those pacts and those terms that all would want to observe and to propose, while the voice of private interest, which is always heard, falls silent or comes into agreement with the public interest. What are the sentiments of each individual regarding the death penalty? We may read them in the attitudes of indignation and contempt with which everyone views the hangman, who is, to be sure, an innocent executor of the public will, a good citizen who contributes to the public good, an instrument as necessary to public security at home as valiant soldiers are abroad. What, then, is the origin of this contradiction? And why, in spite of reason, is this sentiment indelible in men? Because men, in the recesses of their minds, which more than any other still preserve the original form of their primordial nature, have always believed that no one can have the power over one’s own life, save in the case of necessity, which rules the universe with its iron sceptre. What must men think when they see wise magistrates and solemn ministers of justice, who with tranquil indifference have a criminal dragged with slow precision to his death, and as a poor wretch writhes in his last agonies while awaiting the fatal blow, the judge goes on with cold insensitivity – and perhaps even with secret satisfaction at his own authority – to savour the comforts and pleasures of life? Ah!, they would say, these laws are nothing but pretexts for power and for the calculated and cruel formalities of justice; they are nothing but a conventional language for immolating us with greater security, like victims offered in sacrifice to the insatiable idol of despotism. We see assassination, which is preached to us as a terrible crime, employed without repugnance and without outrage. Let us take advantage of this example. In the descriptions that we have been offered, violent death seemed a terrible spectacle, but we see it as a momentary affair. How much less terrible it will be for someone who, not expecting it, is spared almost everything about it which is painful! Such are the baneful paralogisms that, if not clearly, at least confusedly, make men disposed to crime – men in whom, as we have seen, the abuse of religion can be more powerful than religion itself. If one were to raise the objection that in almost all ages and almost all nations the death penalty has been prescribed for some crimes, I would reply that this objection amounts to nothing in the face of the

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truth – against which there is no legal remedy – and that the history of mankind gives us the impression of a vast sea of errors, in which a few confused truths float about with large and distant gaps between them. Human sacrifices were common among almost all nations, but who will dare defend them? That only a few societies have refrained from use of the death penalty – and for only a brief period of time – is more favourable than detrimental to my argument, because it is consistent with the fate of great truths, which last no longer than a flash of lightning in comparison with the long and dark night that envelopes mankind. The happy epoch has not yet arrived in which truth shall be – as error has heretofore been – in the hands of the greatest number. Until now, only those truths that Infinite Wisdom has wished to distinguish from others by revealing them have served as exceptions to this universal law. The voice of one philosopher is too weak against the clamour and the cries of so many people who are guided by blind habit, but the few sages scattered across the face of the earth will echo me in their innermost hearts. And if the truth should reach the throne of the monarch – despite the many obstacles that keep it at bay against his wishes – let him know that it arrives with the secret support of all mankind; and let him know that the bloody notoriety of conquerors will fall silent before him and that a just posterity will bestow him a pre-eminent place among the peaceful monuments of the Tituses, the Antonines, and the Trajans. How happy mankind would be if for the first time it were given laws, now that we see seated on the thrones of Europe benevolent monarchs – promoters of the peaceful virtues, the sciences and the arts, fathers of their people, crowned citizens. Their increased authority serves the happiness of their subjects, for it eliminates that crueller, because less certain, intermediary despotism that suffocated the ever sincere wishes of the people, which are always advantageous when they are able to reach the throne! If they leave the ancient laws in place, I say, it is because of the infinite difficulty in stripping the venerated rust of many centuries from so many errors; this is a reason for enlightened citizens to desire more ardently that their authority continue to increase.

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XXIX On Detention An error that is no less common than it is contrary to the purpose of society, namely, a belief in one’s own security, is to leave at the discretion of the magistrate who enforces the laws the power to imprison a citizen, to deprive an enemy of his liberty upon frivolous pretexts, and to allow a friend to go unpunished despite the strongest evidence of guilt. Detention is a punishment that, unlike every other, must of necessity precede conviction for a crime. But this distinctive characteristic does not dispense with another that is essential, namely, that law alone should determine the cases in which a man deserves punishment. The law, therefore, should indicate what kinds of criminal evidence justify the detention of the accused and make him subject to interrogation and to punishment. Public notoriety, flight, an extra-judicial confession, the confession of an accomplice, threats, and continued enmity towards the victim of the crime, the corpus delicti, and similar evidence are proofs sufficient to detain a citizen. But these proofs must be established by the law and not by judges, whose decrees are always contrary to political liberty when they are not particular applications of a general principle set down in the public legal code. The laws will be able to be satisfied with increasingly weaker evidence to justify detention to the degree that punishments are made more moderate, squalor and starvation eliminated from prisons, and compassion and humanity penetrate their iron gates and take control of the inflexible and hardened ministers of justice. A man accused of a crime, taken into custody, and then acquitted should not bear any trace of shame. How many Romans accused of the most serious crimes and later found innocent were revered by the people and honoured with public offices! But why is the fate of an innocent man so different in our time? Because it seems that, in the present criminal system, the idea of force and power prevails in common opinion over the idea of justice; because accused and convicted are thrown together into the same dungeon; because prison is more a punishment than a place to hold the accused in custody; || and because the internal force that upholds the laws is separated from the external force that defends the throne and

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the nation when they should be united. If they were united in this way, the former would be joined with the judicial authority by their common reliance on the laws, but would not be dependent on the latter’s direct authority. And the glory that accompanies the pomp and the ostentation of a military corps would eliminate the infamy that, like all popular sentiments, is more attached to form than to substance, as is shown by the fact that, in popular opinion, military prisons are not as shameful as civil prisons. || The barbaric notions and the fierce ideas of our ancestral northern huntsman endure in the mind of the people, in customs and in the laws, which are always more than a century behind the actual enlightenment of a nation. Some have maintained that a crime, which is an action contrary to the laws, can be punished wherever it was committed; as if the status of being a subject were indelible, that is, synonymous with – actually even worse than – being a slave; as if a man could be subject of one government while living under another, and that his actions could, without contradiction, fall under the purview of two sovereigns and two often contradictory codes of law. Similarly, some believe that a cruel act committed, for example, in Constantinople, may be punished in Paris, for the abstract reason that whoever offends humanity deserves universal execration and to have all of humanity as his enemy – as if judges were defenders of human sensibility rather than the pacts that bind men to one another. The place of punishment is the place of the crime, because only there and not elsewhere are men compelled to take action against a private individual in order to prevent a public offence. A wicked man who has not broken the pacts of a society that he does not belong to may be feared and thus exiled and excluded by the higher authority of that society, but he may not be punished according to formal legal procedures, which safeguard social pacts but do not prosecute the intrinsic malice of human actions. Those guilty of lesser crimes are usually punished either by being thrown into the darkness of a prison or by being deported to nations that they have not offended in order to serve as an example through a distant and almost useless slavery. Since men do not decide on the spur of the moment to commit the most serious crimes, public punishment

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of a great misdeed will be considered by most people as something foreign that could never happen to them. But the public punishment of lesser crimes, which they might have a mind to commit, will make such an impression that, at the same time it deters men from contemplating lesser crimes, it will further distance them from the thought of committing more serious crimes. Punishments should not only be proportional to one another and to the crimes they punish with regard to their severity, but also in the manner in which they are inflicted. Some men are exonerated from punishment for a minor crime when the offended party forgives them, an action that is consistent with beneficence and humanity but contrary to the public good, as if a private citizen could, through an act of forgiveness, eliminate the necessity of setting an example in the same way that he can waive damages he is owed for the offence. The right to inflict punishment does not belong to a sole individual, but to all the citizens or the sovereign. The individual can only renounce his portion of this right, but he cannot annul that of others. XXX Trials and Prescriptions Once the evidence has been introduced and the certainty of the crime determined, it is necessary to allow the accused the time and appropriate means to defend himself; but this time must be brief enough that it does not compromise the promptness of punishment, which we have seen to be one of the principal restraints on crime. A mistaken love of humanity would seem to require the opposite of such brevity, but all doubt will vanish when one considers that the dangers to the innocent grow along with defects in the laws. The laws, however, should establish a certain period of time for both the defence of the accused and for the prosecution to build its case, for the judge would become a legislator if he were to decide the time necessary for trying a crime. Similarly, those crimes that are so atrocious that they remain for a long time in men’s memories do not, when proven, admit of any prescription in favour of the criminal who has sought to save himself by taking flight. But in minor and inconspicuous crimes, limitations should be set that relieve the citizen of

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the uncertainty regarding his fate, because the obscurity that has shrouded his crimes for so long eliminates the possibility that they serve as an example of impunity to others, while the accused still has a chance to reform himself. I limit myself to mentioning these principles, for a precise limit can be fixed only by specific legislation and in given circumstances of a society. I shall merely add that once a nation has recognized the utility of moderate punishments, laws that shorten or extend the period of time for the prosecution in proportion to the gravity of the crimes, and that include incarceration or voluntary exile as part of the punishment, will provide a simple classification of a few mild punishments for a great number of crimes. But these periods of time shall not increase in direct proportion to the atrocity of the crimes, since the likelihood of crimes stands in inverse proportion to their atrociousness. The time for inquiry, thus, should be decreased, and the time within which prosecution may occur increased. This may seem to contradict what I have said, that is, that equal punishments may be given for unequal crimes, if the time of detention or of prescription prior to the sentence is counted as part of the punishment. To explain my idea to the reader, I distinguish between two classes of crime: the first consists of heinous crimes, beginning with homicide and including all of the more extreme forms of malice; the second consists of lesser crimes. This distinction has its foundation in human nature. Security in one’s own life is a natural right, while the protection of property is a social right. The motives that impel men to transgress their natural feeling of compassion are far fewer in number than those motives that, through a natural desire to be happy, impel them to violate a right that they do not find in their hearts but in the conventions of society. The great difference in probability between these two classes of crimes requires them to be regulated by different principles. In more atrocious crimes, because they are more rare, the period of inquiry should be decreased because of the greater likelihood that the accused is innocent, and the time of prescription should be increased because the elimination of the seductive prospect of impunity (the harmful effects of which increase with the seriousness of the crime) depends on a definitive sentence concerning the

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defendant’s innocence or guilt. But for lesser crimes, given that it is less likely that the accused is innocent, the period of inquiry should increase, and as the deleterious consequences of impunity decline, the time of prescription should be shortened. Such a distinction between two classes of crimes would not be acceptable were the danger of impunity to decrease in proportion to an increasing probability of the crime. | One should keep in mind that an accused man, whose innocence or guilt has not been established and who has been set free for lack of evidence, can be detained again and subjected to a new investigation for the same crime if new, legally pertinent evidence comes to light, as long as the statute of limitation prescribed for his crime has not expired. At least this seems to me the most suitable arrangement for defending both the security and the liberty of subjects, for it is all too easy to favour one at the expense of the other, such that these two goods, which constitute the inalienable and equal entitlement of every citizen, go unprotected and safeguarded – the former against open or cloaked despotism, the latter against turbulent, popular anarchy. | XXXI Crimes Difficult to Prove In view of these principles, it will seem strange to anyone who does not take into account that reason has almost never been the lawgiver to nations that the most atrocious or the most obscure and fantastical crimes – in other words, those that are most unlikely – are proved by conjecture and by the weakest and most equivocal evidence; as if the laws and the judge were not interested in discovering the truth, but in establishing guilt; as if convicting an innocent man were not a greater danger the more the likelihood of innocence exceeds the likelihood of guilt. Most men lack that energy that is as necessary for great crimes as it is for great virtues, and so it seems that the former always go hand in hand with the latter in those nations that sustain themselves more through the government’s activity and passions working together for the public good than through their size or the consistent excellence of their laws. In the latter sort of nation, weakened passions seem better suited to maintaining rather than to

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improving the form of government. And from this an important conclusion may be drawn: great crimes do not always show that a nation is in decline. There are some crimes that are common in society but at the same time difficult to prove, and in these cases the difficulty of proof indicates the probability of innocence. And the harm of impunity being less measurable the more frequently these crimes depend upon principles that are different from the dangers of impunity, the time for inquiry and the period of prescription17 must be equally diminished. And yet adultery and sodomy, which are crimes difficult to prove, are ones that, according to accepted principles, admit of the tyrannical presumptions of quasi-proofs and semi-proofs (as if a man could be semi-innocent or semiguilty, which is to say, semi-punishable and semi-acquittable), in which torture exercises its cruel power over the person of the accused, over the witnesses, and even over the entire family of the poor wretch, as is taught with cold iniquity by some doctors of law who offer themselves to judges as substitutes for norms and laws. Adultery is a crime that, from a political standpoint, derives its strength and its direction from two causes: the variable laws of men and that very strong attraction that impels one sex towards the other – an attraction similar in many respects to the force of gravity that moves the universe, because, like gravity, it diminishes with distance. And just as one affects all of the movements of celestial bodies, so the other affects almost all movements of the heart, as long as the period of attraction lasts. But they are dissimilar in that gravity enters into equilibrium with obstacles, while sexual attraction usually gathers strength and vigour the more obstacles stand in its way. If I were speaking to nations still devoid of the light of religion, I would say that there is yet another considerable difference between adultery and other crimes. Adultery arises from the abuse of a need that is constant and universal in all of humanity – a need antecedent, indeed, foundational to society itself – whereas other socially destructive crimes originate more from momentary passions than from a natural need. For someone who knows history and mankind, there always seems to be a constant quantity of such a need in a given climate. If this is true, then the laws and customs that seek to reduce the total amount

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would be useless, even pernicious, because their effect would be to burden some people with the needs of others, in addition to their own. On the contrary, wise laws would be those that, so to speak, follow the gentle slope of the plain and divide and ramify the total into many equal and small portions, such that they would prevent both draught and flooding everywhere. Conjugal fidelity is always proportionate to the number and the liberty of marriages. Where marriages are governed by hereditary prejudices, where they are arranged or undone by familial authority, there gallantry will secretly break their bonds in spite of common morality, whose function is to inveigh against the effects while excusing the causes. But there is no need for such reflections for those who, imbued with true religion, have more sublime motives that correct the force of natural impulses. The commission of such a crime is so instantaneous and mysterious, so concealed by that very veil with which the laws have cloaked it (a necessary but fragile veil, which increases rather than diminishes the worth of the thing it conceals), the opportunities for it so easy, and the consequences so equivocal, that the legislator will have an easier time preventing it than rectifying it. A general rule: for every crime that, by its very nature, often goes unpunished, punishment becomes an incentive. It is a characteristic of our imagination that difficulties, if not insurmountable or too challenging to the mental laziness of each man, excite the imagination more intensely and magnify the object of desire, for such difficulties are like so many barriers that prevent the wandering and fickle imagination from forsaking the object, and by forcing it to scrutinize every facet, it clings more tightly to the pleasant part, towards which our mind is more naturally inclined, than to the painful and injurious part, from which it flees and withdraws. Pederasty, which is so severely punished by the laws and so easily subjected to the torments that conquer innocence, has its foundation less in the needs of an isolated and free man, than in the passions of a sociable and enslaved one. It draws its strength not so much from the surfeit of pleasures as from that sort of education that begins by making men useless to themselves in order to make them useful to others. It is a product of those institutions where ardent youth is penned up and in which, as an insurmountable barrier to every other sort of

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interaction, all of the burgeoning natural vigour burns out in ways useless to humanity and even bring on premature old age. Similarly, infanticide is the outcome of an inevitable contradiction into which a woman has been thrust, who has either yielded to weakness or to violence. How could a woman who finds herself caught between disgrace and the death of a being incapable of feeling death’s pains not prefer the latter over the inevitable misery to which she and her unhappy fruit would be exposed? The best way to prevent this crime would be through efficacious laws that protect weakness against tyranny, that exaggerate those vices that cannot be concealed under a cloak of virtue. I do not mean to diminish the just horror that these crimes deserve; but by identifying their origins, I believe I may rightfully draw a general conclusion, which is that a punishment for a crime cannot be considered exactly just (which is to say, necessary) until the law has put into use the best possible means in a nation’s given circumstances for preventing that crime. XXXII Suicide Suicide is a crime that seems not to admit of punishment in the strict sense, because it can only fall upon the innocent or upon a cold and insensible corpse. If the latter will make no more impression on the living than would be made by whipping a statue, the former is unjust and tyrannical, for man’s political freedom necessarily presupposes that punishments be inflicted only upon the persons who have committed a crime. Men love life too much and everything around them confirms them in this love. The seductive image of pleasure and hope – the sweetest deception of mortals, for which they will swig large gulps of evil mixed with just a few drops of contentment – is too alluring for there to be any reason to fear that the necessary impossibility of punishing such a crime will have any influence on men. Whoever fears pain obeys the laws; but death extinguishes all bodily sources of pain. What motive, then, will restrain the desperate hand of a suicidal man? Whoever kills himself does less harm to society than someone who leaves its borders forever, for the former leaves all of his property there,

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while the latter carries away with him some of his possessions. Indeed, if the strength of a society consists in the number of its citizens, someone who leaves society to join a neighbouring nation does twice the harm as someone who simply removes himself from society with his death. The question thus boils down to knowing whether it is useful or harmful to a nation to allow each of its members a perpetual freedom to leave. No law should be promulgated that cannot be enforced or that is rendered ineffectual by the nature of the circumstances. And just as men’s minds are ruled by opinion, which obeys the slow and indirect influences of the lawmaker and resists those that are direct and violent, so laws that are useless and scorned by men will contaminate even the most salutary laws, which will come to be regarded more as an obstacle to be overcome than as a depository of the public good. Indeed, if, as we’ve said, our sentiments are limited, the more respect men have for objects other than the laws, the less they have for the laws themselves. The wise administrator of public happiness may draw from this principle some useful conclusions, although to enlarge upon them here would take me too far from my topic, which is to show the uselessness of turning the state into a prison. Such a law is useless, for unless inaccessible cliffs or unnavigable seas separate one country from all others, how can every point on its border be sealed, and who is to guard the guardians? Someone who has carried away with him all of his possessions cannot be punished from the moment he has done so. Once such a crime has been committed, it can no longer be punished, and to punish it beforehand would be to punish men’s will and not their actions; this would be to exercise control over intentions, which constitute the part of man most free from the reign of human laws. || To punish someone who has emigrated by confiscating the property he has left behind – which, aside from the ease and inevitability of collusion, cannot be accomplished without tyrannically meddling with contracts – would cause all commerce between nations to run aground. || To punish the criminal upon his return would be to prevent him from making reparations for the harm done to society, for it would amount to rendering his absence perpetual. The very prohibition against leaving a country only increases the desire of nationals to leave, and it constitutes a warning to foreigners not to enter.

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What are we to think of a government that has no means except fear to keep men in the country to which they are naturally attached since the earliest impressions of childhod? The surest way to bind citizens to their country is to increase the relative well-being of every one of them. Just as every effort should be made to keep the balance of trade in our favour, so it is in the sovereign’s and the nation’s greatest interest that the total amount of happiness – when compared with surrounding nations – be greater than elsewhere. The pleasures of luxury are not the principal elements of this happiness, although luxury is a necessary remedy for inequality, which grows as a nation advances; and without luxury, wealth would become concentrated in a single pair of hands. Where the borders of a nation expand at a greater rate than its population, luxury favours despotism, || both because when there are fewer men, there is less industry, and when there is less industry, the poor are more dependent on the ostentation of the rich, and the union of the oppressed against their oppressors is much more difficult and thus less feared; and because the homage, public offices, distinctions, and subjection, which make the distance between the strong and the weak, more apparent, || are more easily obtained from few than from many, since men are more independent when less observed and less observed when more numerous. But where the population increases in greater proportion to its borders, luxury is opposed to despotism because it spurs men’s industry and activity, and necessity offers too many pleasures and comforts to the rich to leave much room for the pleasures and comforts of ostentation, which add to a sense of dependence. Therefore, it may be observed that in vast, weak, and sparsely populated states, the luxury of ostentation prevails over that of comfort, if there are no other intervening factors; but in states that are more populous than territorially expansive, the luxury of comfort always diminishes the luxury of ostentation. But commerce and the exchange of luxury goods has the following disadvantage, namely, that although many people are involved, it nonetheless begins with the few and ends with the few, and the majority enjoys only the tiniest share. Thus, trade does not prevent the feeling of poverty, which is caused more by perceived disparities than by real ones. But security and freedom, limited only by the laws, are what

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constitute the main foundation of happiness; with security and freedom, the pleasures of luxury favour the people, while without them such pleasures become the instrument of tyranny. Just as the noblest animals and the freest birds take refuge in the solitude of the impenetrable woods, and abandon the fertile and charming fields where man sets his traps, so men shun pleasures themselves when they are offered by the hand of tyranny. It is thus established that the law that makes subjects prisoners in their own country is useless and unjust. And so, too, will be any punishment for suicide, for even if it is a sin that God punishes (because only He can punish even after death), it is not a crime among men, since the punishment, instead of falling on the criminal himself, falls on his family. To someone who might object that such a punishment might, nevertheless, hold back a determined man from killing himself, I answer: someone who calmly renounces the gift of life, and who hates earthly existence so much as to prefer an eternity of unhappiness, could hardly be moved by the less efficacious and more distant thought of his children or relatives. XXXIII Smuggling Smuggling is a real crime that is detrimental to the sovereign and the nation, but its punishment should not entail disgrace, for when committed it is not seen as a disgraceful act in the eyes of public opinion. Anyone who metes out punishments involving disgrace for crimes that are not reputed as such by men diminishes the feeling of shame for those crimes that really are disgraceful. Whoever sees the same penalty of death prescribed, for example, for someone who kills a pheasant and for someone who murders a man or who falsifies an important document, will draw no distinction between these crimes, thereby destroying the moral sentiments, which are the work of many centuries and much blood and developed very slowly and with great difficulty in the human heart, and whose birth was thought to require the aid of the most sublime motives and an enormous apparatus of solemn formalities. This crime arises from the law itself because the higher the customs duty, the greater the advantage, and thus the temptation to

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smuggle and the ease of doing so grows along with the boundaries to be guarded and with the reduction in volume of the merchandise itself. Forfeiture of both the smuggled goods and accompanying items is quite just, but this will be more effective the smaller the customs duty, because men only take risks in proportion to the advantage they stand to gain from a successful venture. But why does this crime not bring disgrace to its author, given that it is a theft committed against the prince and, consequently, against the nation itself? My answer is that the offences that men believe could not be carried out against them do not interest them enough to produce public indignation against the perpetrators who commit them. Smuggling is such an offence. Men, upon whom remote consequences make very weak impressions, do not see the harm that smuggling can do to them – indeed, they often enjoy its immediate advantages. They see only the harm done to the prince; they are not as interested, therefore, in denying their good opinion to a smuggler as they are to someone who commits a private theft, forges a document, or commits other offences that may affect them individually. It is an obvious principle that every sentient being is interested only in the harms that he knows. But should such a crime go unpunished when the perpetrator has no possessions to lose? No: there are some cases of smuggling that so profoundly affect the nature of tax revenue, which is such an important and difficult part of a good system of legislation, that this kind of crime deserves a considerable punishment, even up to imprisonment or penal servitude – although imprisonment and servitude should fit the nature of the crime itself. For example, the prison sentence of a tobacco smuggler should not be the same as that of a hired assassin or a thief, and the labours of the former, if limited to toiling in service of the royal treasury he sought to defraud, will be the most fitting kind of punishment. XXXIV Debtors The good faith of contracts and the security of commerce oblige the legislator to hand over to creditors the persons of failed debts. But I

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believe that is important to distinguish between the fraudulent bankrupt and the innocent bankrupt. The former should be assigned the same punishment prescribed for counterfeiters, because counterfeiting a metal coin, which is a pledge of the obligations citizens owe to each other, is no greater crime than counterfeiting the obligations themselves. || But with regard to the innocent bankrupt, who, after a rigorous investigation, has demonstrated before his judges that he was stripped of his possessions either through the malice or the misfortune of others, or by events beyond human control, on what barbarous grounds can he be deprived of the sole, pitiful good he is left with – bare liberty – and thrown into prison to suffer the agonies of the guilty, and, with the desperation of browbeaten honesty, go so far as to repent for that innocence in which he lived peacefully under the tutelage of those laws which it was beyond his power not to break? For these were laws dictated by the powerful out of greed and endured by the weak out of that hope that usually glimmers in the human heart and that makes us believe that adversities are destined to befall others while we will be the beneficiaries of favourable circumstances. Left to their most natural feelings, men prefer cruel laws, although given that they are subject to these very laws, it would be in the interest of each individual that laws be moderate, for the fear of being injured is greater than the desire to do harm. Returning to the innocent bankrupt, I will grant that his obligations should not be cancelled until he has made full repayment, that he should not be allowed to shirk his obligations without the consent of the interested parties, and that he should not be allowed to move his business to another jurisdiction when his business should be required under penalty to be conducted so as to put him back in a position to be able to satisfy his creditors in proportion to the profits made. But what legitimate pretext, such as the security of commerce or the sacred right of property, could possibly justify depriving him of his liberty? This would be useless, except in an instance when the evils of servitude might bring to light the secrets of an allegedly innocent bankrupt – a very rare case indeed, if the investigation has been rigorous! I believe it is a maxim of legislation that the significance to be attached to the political disadvantages of impunity is directly proportional to the harm inflicted on the public and inversely proportional to the improbability of its being proved. It

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should be possible to distinguish fraud from grievous culpability, grievous from petty culpability, and the latter from complete innocence. Cases of fraud should be assigned the same punishments that crimes of forgery receive; instances of grievous culpability should receive lesser punishments, but which include the loss of liberty; and the innocent should be allowed free choice with regard to the means of restitution. In cases involving petty culpability, this liberty to choose the means by which to make restitution should be taken away and left to the creditors to determine. But the distinctions between grievous and mild culpability should be established by blind and impartial laws, not by the dangerous and arbitrary discretion of judges. It is as necessary to fix limits in politics to measure the public good as it is in mathematics to measure quantities.* How easily a far-sighted legislator could prevent a great number of culpable bankruptcies and rectify the misfortunes of the hardworking innocent! The public and open registration of all contracts, together with the freedom for all citizens to inspect the well-ordered documents, and a public bank established with taxes wisely levied on prosperous trade and aimed at providing timely financial assistance to unfortunate and innocent merchants – these measures would have no real drawbacks and they could produce innumerable advantages. But easy, simple, and great laws that await only a nod from the legislator to spread wealth and vigour throughout the nation – laws that would overwhelm him with immortal hymns of gratitude from generation to generation – are precisely those that are the least known or least desired. A restless and petty spirit, the fearful prudence of the present moment, and a wary rigidity in the face of innovation hold sway over the feelings of those who regulate the bustling activities of petty mortals. || * || Commerce and the ownership of goods are not the goal of the social pact, but they may be a means for achieving that end. To expose members of society to the evils to which so many circumstances give rise, would be to subordinate the ends to the means – a paralogism in all of the sciences, especially in the science of politics. I fell into this error in earlier editions, in which I said that the innocent bankrupt should be imprisoned as a pledge of his debts or made to work like a slave for his creditors. I am ashamed of having written in this way. I have been accused of irreligion and did not deserve it. I have been accused of sedition and I did not deserve it. I have offended against the rights of humanity, and yet no one has admonished me for it. ||

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XXXV Asylums Two questions remain for me to consider: the first is whether it is just that there be places of asylum and whether treaties between nations for the extradition of criminals are useful. Within a country’s borders, there should be no place that is unregulated by laws. The power of the laws should follow every citizen like a shadow follows a body. Impunity and asylum differ only in degree, and just as the certainty of punishment makes more of an impression than its severity, asylums invite men to commit crimes more than punishments deter them. To multiply places of asylum is to create so many small sovereignties, for where laws are absent, new laws may take root that are opposed to the general laws and that thereby constitute a countervailing spirit to that of the whole body of society. All history shows that great revolutions, both in states and in the opinions of men, have been spawned from places of asylum. But as to whether agreements regarding the extradition of criminals between nations are useful, I would not dare to take a position on this question until laws more suited to the needs of humanity, milder punishments, and an end to the dependence on arbitrariness and opinion have provided security for oppressed innocence and despised virtue; until tyranny has been isolated to the vast plains of Asia by that universal reason, which increasingly unites the interests of the throne and its subjects. Nonetheless, the notion that there is no patch of earth where true crimes are tolerated would be an extremely effective means of preventing them. XXXVI On Bounties The other question is whether it is useful to put a price on the head of a man known to be a criminal and to make each citizen an executioner by arming him. The criminal is either outside a country’s borders or inside them: in the former case, the sovereign spurs citizens to commit a crime and exposes them to punishment for infringing and usurping authority in other domains, and in this way authorizes other nations to do the same to him; in the latter case, he shows his own weakness. Those who have the power to defend themselves do

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not seek to buy it. Moreover, such a decree throws into confusion all ideas of morality and virtue, which vanish from the human mind at the slightest breeze. One moment the laws encourage betrayal and the next moment they punish it. With one hand the legislator tightens the bonds of family, of kin, and of friendship, and with the other he rewards those who break and shatter such bonds; always contradicting himself, one moment he encourages the suspicious minds of men to have trust in one another, and the next moment he sows distrust in every heart. Instead of preventing one crime, he brings on a hundred. These are the expedients of weak nations, whose laws are nothing but hasty repairs to a building in ruins that is crumbling on all sides. As a nation becomes more enlightened, good faith and mutual trust become necessary and tend increasingly to become tied up with real politics. Artifice, cabals, and dark and devious ways are largely foreseen, and the sensibility of everyone checks the sensibility of each particular individual. Even the centuries of ignorance, in which public morality compelled men to obey private morality, provide lessons and experience for enlightened centuries. But the laws that reward betrayal and incite clandestine war by sowing mutual distrust among citizens run counter to this vitally necessary union between morality and politics, which would bring happiness to men, peace to nations, and to the world a somewhat longer period of tranquility and respite from the evils that rove about its surface. |XXXVII Attempted Crimes, Accomplices, and Impunity Although laws do not punish intention, an action that precedes the commission of a crime that shows a clear intent to carry it out deserves punishment, albeit one that is less severe than what is prescribed for the actual execution of the crime. The importance of preventing an attempted crime justifies a punishment; but since there may be an interval between the attempt and the execution, reserving stiffer penalties for an accomplished crime may lead one to have second thoughts. The same may be said, although for different reasons, when there are several accomplices in a crime, not all of whom are its direct perpetrators. When several men join together in a risky venture, the

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greater the risk, the more they try to share it equally among them; it will be more difficult, therefore, to find someone prepared to carry out the crime alone, thereby running a greater risk than the other accomplices. The only exception would be when a special remuneration were promised to the perpetrator; since he is compensated for the greater risk assumed, the punishment should be the same for all of them. These reflections may seem too metaphysical for those who do not appreciate that it is of the utmost utility that laws provide the fewest possible grounds for agreement among partners in crime. Some courts offer impunity to the accomplice in a serious crime who will reveal his partners. This sort of strategy has its disadvantages and advantages. The disadvantages are that the nation authorizes betrayal, which is repugnant even when dealing with the wicked, because crimes of courage are less detrimental to a nation than crimes of cowardice. This is because the former kind is not frequent and awaits only a beneficent and guiding power to make it contribute to the public good, while the latter kind is more common and contagious, and increasingly self-centred. Moreover, the court demonstrates its own uncertainty and the weakness of the law when it implores the aid of those who break the law. The advantages of offering immunity are the prevention of serious crimes, and the fact that they intimidate the population, since the outcome is in clear view while the perpetrators remain hidden. Furthermore, it helps to show that someone who breaks faith with the laws – that is, with the public – will probably also be untrustworthy in private. It would seem to me that a general law promising impunity to the accomplice who divulges information about any sort of crime would be preferable to a special dispensation for a particular case, for in this way criminal collusion would be prevented through the mutual fear that each accomplice would have of exposing himself to danger; and the court would not be adding to the audacity of the criminals, who see that their help is needed in a particular case. Such a law, however, should combine impunity with banishment of the informer … But I am torturing myself in vain trying to overcome the remorse that I feel in allowing the sacrosanct laws – that are the cornerstone of public trust and the basis of human morality – to countenance betrayal and dissimulation. What kind of example would it provide to the nation if the promised impunity were rescinded and that, despite public pledges,

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someone who had accepted the invitation of the laws were dragged off to be punished on the basis of some learned sophistry! Such examples are not rare among nations, and thus quite a number of people believe that a nation is nothing but a complicated machine, whose contraptions are manipulated at will by the most clever and most powerful. Cold and insensible to all that constitutes the delight of tender and sublime souls, with unflappable shrewdness they stir up the dearest sentiments and the most violent passions the very moment when they realize that doing so is useful to their own ends, playing upon men’s hearts as musicians do upon their instruments. XXXVIII Leading Interrogations and Depositions Our laws proscribe the use of leading questions in a trial, that is, questions that, according to learned jurists, inquire into the specifics, when they should ask about the general circumstances of a crime; in other words, those questions that, having a direct connection with the crime, lead the accused to an immediate answer. According to theorists of criminal law, questioning should, so to speak, encircle a fact like a spiral and never approach it directly. The reasons for this procedure are either so as not to lead the accused to give an answer that is incriminating or because it seems contrary to nature that a suspect should be his own accuser. Whichever of these two reasons it may be, there is a remarkable contradiction in the laws that uphold this custom at the same time as they authorize torture; for what kind of questioning can be more leading than pain? The first reason obtains in the case of torture, because pain will lead a robust man to maintain an obstinate silence in order to exchange a greater punishment for a lesser one; and it will lead the weak to make a confession in order to free himself from the present agony, which at that moment weighs upon him more heavily than any pain that might beset him in the future. The second reason is clearly the same, for if a specific question makes an accused man confess against the rights of nature, agony will make him confess even more easily. But men behave more in accordance with the name of things than with the thing itself. Noteworthy among other abuses of language, which have had no small influence on human affairs, is that which renders the deposition of a convicted

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criminal null and void. He is legally dead, the peripatetic jurists gravely declare, and a dead man is incapable of any action. Many victims have been sacrificed in the name of this empty metaphor, and it has often been seriously debated whether the truth should yield to juridical formulas. So long as the depositions of a convicted criminal do not go so far as to arrest the course of justice, why should he not be allowed – in view of his extreme misery and in the interest of truth – a suitable period of time even after conviction so that, by adducing fresh evidence that changes the nature of the case, he may exculpate himself or others with a new trial? Formalities and rituals are necessary in the administration of justice because they leave nothing to the discretion of the administrator, because they give the people the idea of a judgment that it is neither disorderly nor biased, but stable and fair, and because feelings make a more effective impression on men – slavish followers of habit – than rational argumentation. Although the truth, whether because it is too simple or too complicated, requires some outward displays of pomp to win over an ignorant populace, such formalities and rituals can never – without grave danger – be set into law in such a way that they compromise the truth. Finally, someone who obstinately refuses to answer the questions put to him deserves a punishment that should be established by law and be one of the most severe among all of those penalties prescribed, for in this way men do not fall short of the necessity to serve as an example, that they owe to the public. Such punishment is not necessary when it is beyond doubt that a given suspect has committed a given crime; interrogations are therefore useless in the same way as the confession of a crime is useless when other evidence proves the suspect’s guilt. This last case is the most common because experience shows that in most trials the guilty deny any wrongdoing. | XXXIX On a Particular Type of Crime The reader of this work will notice that I have not discussed a type of crime that covered Europe with human blood and raised those sorrowful pyres whose flames were fed with live human bodies during a time when it was a merry spectacle and pleasant harmony to the

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blind multitude to hear the muffled and chaotic groans of the wretched issuing from the clouds of whirling black smoke – the smoke of human limbs – amid the crackling of charred bones and the sizzling of organs that were still throbbing. But reasonable men will see that neither the place, the present age, nor the matter at hand permit me to explore the nature of such a crime. It would take me too long and too far away from my subject to show how perfect uniformity in thought would be necessary in a state, despite the example of many nations; how opinions, which differ from one another only on a few very subtle and obscure points well beyond human capacity to appreciate, can nonetheless upset the public good when one viewpoint is not authorized in preference to the others; and how the nature of opinions is such that, while some are clarified through the ferment and battle of ideas, which bring true ideas to the surface and sink false ideas into oblivion, others, that are insecure despite the steadfastness with which they are held, need to be vested with authority and power. It would take too long to show that, however odious the sway of force over human minds may seem – whose sole achievements are dissimulation and hence debasement – and however contrary it may seem to the spirit of gentleness and fraternity, which is enjoined by reason and by the authority we most venerate, it is nevertheless necessary and indispensable. All of this must be taken as clearly demonstrated and in conformity with the true interests of men, so long as there is a recognized authority that carries it out. I am speaking only of the crimes that arise from human nature and from the social pact, and not of sins, whose punishments – even in this world – should be regulated by principles other than those of a limited philosophy. XL False Ideas of Utility One source of errors and injustices is the false ideas of utility that legislators dream up. False is the idea of utility that places particular inconveniences ahead of the general inconvenience, which commands feelings instead of exciting them, which says to logic: Obey! False is the idea of utility that sacrifices a thousand real advantages

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for a single imaginary or unimportant disadvantage, that would take fire away from men because it burns and water because it drowns, that remedies evils only through destruction. || The laws that forbid one to bear arms are laws of this sort; they disarm only those who are neither inclined nor determined to commit crimes. At the same time, can those who have the courage to violate the most sacred laws of humanity and the most important laws of the criminal code be expected to respect the lesser and purely arbitrary laws, which can be broken with such ease and impunity, and which, if enforced, would take away personal liberty – so dear to man, so dear to the enlightened legislator – and subject the innocent to all the annoyances that the guilty deserve? These laws place the assaulted at a disadvantage and favour the assailants, and rather than reduce the number of murders they increase it, since an unarmed man may be attacked with greater confidence than an armed man. These laws are not to be considered preventive but are to be seen rather as laws that stem from a fear of crimes; they arise from the tumultuous impression made by a few isolated cases rather than from reasoned reflection on the disadvantages and advantages of a universal law. || False is the idea of utility that would impose on a multitude of sentient beings the symmetry and order to which brutal and inanimate matter is subjected, that ignores present motives – that alone work constantly and powerfully upon the multitude – in favour of distant ones whose effect is very brief and weak, unless an extraordinary power of imagination magnifies them compensating for their remoteness. Lastly, false is the idea of utility that, by sacrificing the thing to the name, separates the public good from the good of each individual. There is a difference between the state of society and the state of nature, namely, that the savage man does no more harm to others than is necessary to benefit himself, whereas social man is sometimes moved by bad laws to injure others without doing himself any good. The despot instils fear and dejection in the souls of his slaves, but these sentiments rebound on him and return with even greater force to torment his own soul. The more solitary and domestic that fear is, the less dangerous it is to the man who makes it the instrument of his happiness; but the more public it is, and the greater multitude that it inflames, the easier it

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becomes for some rash, desperate, or audaciously clever man to succeed in bending men to his purposes, arousing in them feelings that are all the more welcome and seductive, as the risk of the undertaking is spread over a greater number of individuals. For the value that the wretched set upon their own lives diminishes in proportion to the misery they suffer. This is why wrongs give rise to new wrongs, for hatred is a more enduring sentiment than love, inasmuch as the former draws its strength from the continuity of actions, which weaken the latter. XLI How to Prevent Crimes It is better to prevent crimes than to punish them. This is the principal aim of all good legislation, which is the art of guiding men to the greatest happiness, or to the least unhappiness possible, to put it in terms of the total calculus of the goods and evils of life. But the means hitherto employed have been for the most part mistaken and contrary to the proposed aim. It is not possible to reduce the turbulent activity of mankind to a geometric order devoid of irregularity and confusion. Just as the constant and very simple laws of nature do not prevent perturbations in the movements of the planets, so human laws cannot prevent disturbances and disorders among the infinite and very opposite forces of pleasure and pain. And yet this is the chimera of imperfect men when they are in command. To prohibit a multitude of trivial actions is not to prevent the crimes they may occasion, but rather to create new ones; it is to define at whim the meanings of vice and virtue, which are then preached to us as eternal and immutable. What would we be reduced to if we were forbidden everything that might tempt us to crime? It would be necessary to deprive man of the use of his senses. For every motive that drives men to commit a real crime, there are a thousand that drive them to commit those trivial acts that bad laws call crimes. And if the probability of crimes is proportional to the number of motives, to broaden the sphere of crimes is to increase the probability of their being committed. The majority of laws are nothing but privileges, that is, a tribute paid by all for the comfort of a few.

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Do you want to prevent crimes? Then see to it that the laws are clear and simple and that the whole strength of the nation is concentrated in their defence, and that no part of that strength is employed to destroy these laws. | See to it that the laws favour individual men more than classes of men. | See to it that men fear the laws and only the laws. Fear of the laws is salutary, but the fear of one man for another is detrimental and a fertile source of crime. Enslaved men are more sensual, more debauched, and crueller than free men. The latter ponder the sciences and think about the interests of the nation; they see great examples and emulate them. But the former, content with the present moment, seek amid the din of debauchery a distraction from the ruin in which they find themselves. Accustomed to uncertainty in the outcome of everything, the outcome of their crimes becomes doubtful to them, and thereby reinforces the passions that prompted them. If uncertainty regarding the laws befalls a nation whose climate makes it indolent, uncertainty buttresses and increases its indolence and stupidity. If uncertainty in the laws befalls a sensuous but active nation, it will disperse this activity into an infinite number of little cabals and intrigues, which spread suspicion in every heart and make betrayal and dissimulation the foundation of good sense. If it befalls a courageous and strong nation, uncertainty will be removed in the end, although only after causing many fluctuations from liberty to slavery and from slavery to liberty. XLII On the Sciences Do you want to prevent crimes? Then see to it that enlightenment accompanies liberty. The evils that arise from knowledge are inversely proportional to its diffusion, while the benefits are directly proportional. An audacious impostor, who is always an uncommon man, enjoys the adoration of an ignorant people and the jeers of an enlightened one. By facilitating comparisons and by multiplying the points of view, knowledge sets sentiments against one another and each modifies the other in turn – a process made even easier as one perceives the same views and the same aversions. In the face of widespread enlightenment within a nation, mendacious ignorance falls

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silent and authority unarmed with good justifications trembles, while the vigorous force of the laws remains unshakeable. For there is no enlightened man who does not love the public, clear, and useful pacts of common security when comparing that small portion of useless liberty that he has sacrificed with the sum of all the liberties sacrificed by other men who, without the laws, could have become conspirators against him. Any sensitive soul who takes a look at a wellmade code of laws and finds that he has lost nothing but the malevolent liberty to harm others will be compelled to bless the throne and its occupant. It is not true that the sciences have always been harmful to humanity, and that when they have been so, it was an evil that man could not avoid. The multiplication of the human species across the face of the earth introduced war, the cruder arts, and the first laws, which were temporary pacts that arose and perished according to necessity. This was the first philosophy of men, whose few elements were just, because their indolence and their lack of wisdom saved them from error. But the needs of men multiplied as the number of men increased. Stronger and more lasting impressions were necessary, therefore, to discourage them from repeated returns to the original state of unsociability, which was becoming increasingly ruinous. Those first errors that populated the earth with false gods and created an invisible universe that regulated our own were, therefore, of great benefit to humanity (I mean a great political benefit). Those who dared to dazzle men and drag the docile and ignorant to the altars were benefactors of mankind. By presenting men with objects beyond their senses, which escaped them just as they believed to have them in their grasp, and which were never despised because they were never really known, they united men’s divided passions and focused them on a single object that strongly absorbed their attention. These were the first events of all nations that developed from savage peoples; this was the epoch in which great societies were formed, and such was the nature of the bond necessary to bind them – perhaps the only bond. I am not speaking of that people chosen by God, for whom the most extraordinary miracles and the most remarkable graces took the place of human politics. But as it is in the

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nature of error to ramify ad infinitum, so the sciences that arose out of error turned men into a blind and fanatical multitude, pushing and shoving one another in a closed labyrinth with such confusion that some sensitive and philosophical souls went so far as to long for the ancient state of savagery. This was the first epoch in which knowledge – or, more properly speaking, opinion – is harmful. The second epoch consists in the difficult and terrible passage from error to truth, from the darkness of the unknown to the light. The mighty clash between errors useful to the powerful few and the truths useful to the feeble many, the consolidation and agitation of the passions that awaken in that moment, bring infinite harm to suffering humanity. Whoever reflects on the historical accounts, which after certain periods of time begin to resemble one another as far as the principal epochs are concerned, will repeatedly find an entire generation sacrificed to the happiness of the generations that follow in the tragic but necessary passage from the shadows of ignorance to the light of philosophy and thus from tyranny to liberty. But when the minds of men have calmed, and the fires that purged the nation of the evils oppressing it have been extinguished, and truth, whose progress accelerates after the first slow steps, sits on the throne alongside the monarchs and whose altar is worshipped in the parliaments of the republics, who could ever assert that the light that illuminates the multitude is more dangerous than the shadows and that a good understanding of the true and simple relationships of things is destructive to men? If blind ignorance is less deadly than mediocre and confused knowledge, since the latter add to the shortcomings of the former the evils of the inevitable errors that arise in those who have a narrow view of the confines of truth, then enlightened man is the most precious gift that a sovereign can give to the nation and to himself, for he makes him the depository and guardian of the sacred laws. Accustomed to seeing the truth rather than fearing it, freed for the most part of the demands of reputation (which are so rarely satisfied and put the virtue of most men to the test), and habituated to contemplating humanity from the loftiest vantage points, his own nation appears to him to be a family of brothers. And the more of mankind

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that he has before his eyes, the shorter the distance between the great and the mass of people will seem to him. Philosophers have needs and interests unknown to common men – chief among them is that of not denying in the public light the principles they preach in darkness – and they acquire the habit of loving truth for its own sake. A selection of such men shapes the happiness of a nation, but this happiness will only be temporary if good laws do not increase the ranks of such men so as to diminish the always significant likelihood of a poor choice. XLIII Magistrates Another way to prevent crimes is to make the tribunal charged with executing the laws more interested in observing them than in corrupting them. The greater the number of men who comprise this body, the smaller the danger of the laws being usurped, for venality is more difficult among members who keep an eye on each another, and they will be less interested in increasing their own power the smaller the share of it at the disposal of each individual – especially when compared with the danger of such an undertaking. If by his pomp and display, by the severity of his edicts, and by his refusal to entertain the just or unjust petitions of anyone who believes himself aggrieved, the sovereign accustoms his subjects to fear the magistrates more than the laws, then the magistrates will profit from this fear more than personal and public safety will gain. XLIV Rewards Another way of preventing crimes is to reward virtue. I observe that the laws of all nations today are totally silent on this matter. If the prizes awarded by academies to the discoverers of useful truths have multiplied both our knowledge and the number of good books, why should not prizes distributed by the beneficent hand of the sovereign likewise multiply virtuous actions? The coin of honour is always inexhaustible and productive in the hands of someone who knows how to distribute it wisely.

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XLV Education Finally, the surest but most difficult way to prevent crimes is to improve education. But this subject is too vast and exceeds the limits that I have set for myself. It is a subject, I would dare to add, that is too intimately connected to the nature of government for it to be left a barren field, cultivated only here and there by a few wise men until some remote future of public happiness. A great man,18 who enlightens humanity at the same time that it persecutes him, has shown in detail the main precepts of an education that is truly useful to men. It consists less in a sterile mass of subjects than in subjects chosen with precision and care; it replaces copies with the originals in the study of both moral and physical phenomena that either chance or diligence presents to fresh young minds; it encourages the young to attain virtue by the simple path of the feelings, and diverts them from evil through the infallible way of necessity and of inconvenience, rather than the uncertain method of giving commands, which obtains only feigned and momentary obedience. || XLVI On Pardons As punishments become milder, clemency and pardons become less necessary. Happy would be the nation in which they were considered harmful! Thus, clemency, a virtue that for sovereigns has sometimes served as a supplement to all of the duties of the throne, should be excluded from the perfect legal code, in which punishments would be mild and the method of judgment regular and expeditious. This truth will seem harsh to one who lives amid the disorder of the criminal system, in which pardons and mercy are necessary in proportion to the absurdity of the laws and the severity of the sentences. Clemency is the most beautiful prerogative of the throne and the most desirable attribute of sovereignty. But it is also evidence of the tacit disapproval that the beneficent dispensers of public happiness register for a code that, despite all of its imperfections, is buttressed by the prejudice of centuries, the voluminous and imposing paraphernalia of innumerable commentators, the weighty apparatus of

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endless formalities, and the acceptance of the most ingratiating and least formidable of the semi-literate. But one ought to keep in mind that clemency is a virtue of the lawmaker and not of the executor of laws, that it ought to shine in the code itself rather than in particular judgments. And one ought to consider that showing men that crimes can be pardoned and that punishment is not the necessary consequence of committing them is to encourage the hope of impunity, and to create the belief that, because an individual can be pardoned, sentences that go unpardoned are really violent acts of force rather than the products of justice. What will be said, then, when the prince grants a pardon – that is, public safety to a particular individual – and with a private act of unenlightened beneficence makes a public decree of impunity? The laws, therefore, ought to be inexorable, as should be their executors in particular cases, but the lawmaker should be mild, lenient, and humane. The lawmaker ought to be a wise architect who raises his building on the foundation of selflove, and the general interest ought to be the product of the interests of each. In this way, he will not be forced at every moment to separate the public good from the good of individuals with partial laws and chaotic remedies, and to build a false image of public wellbeing on fear and mistrust. As a deep and sensitive philosopher, he ought to allow men and their brothers to enjoy in peace that small portion of happiness that the immense system – established by the First Cause, by He Who Is – set aside for them to enjoy in this corner of the universe. || XLVII Conclusion I conclude with this reflection: the severity of punishments must be relative to the state of the nation itself. Stronger and more palpable impressions have to be made on the hardened spirits of a people who have just emerged from the savage state. A bolt of lightning is needed to knock down a ferocious lion that recoils at the sound of a gunshot. But as souls soften in society, their sensibility grows in proportion. And as it grows, the severity of punishment must diminish if the relationship between the object and the sensation is to remain constant.

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From what has been shown thus far, one may draw a general and very useful theorem, although it hardly conforms to custom, which is the most usual lawgiver of nations: In order that punishment should not be an act of violence committed by one or many against a private citizen, it is essential that it be public, prompt, necessary, the minimum possible in the given circumstances, proportionate to the crimes, and established by the law.

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PART TWO Contemporary Reactions to On Crimes and Punishments

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ferdinando facchinei

From Notes and Observations on the Book Entitled ‘On Crimes and Punishments’ (1765)

[Torture] The Roman legislators did not use torture to extract a confession from the criminal because they had not yet felt the need for such a usage; because they were unable to examine this matter as they should have; and because the revolutions of their republic almost never left their state entirely peaceful, nor did they reduce the different classes and conditions of persons to a fixed system that would allow the examination and establishment of the best method to proceed criminally. And, indeed, their method was most imperfect in every aspect and was implemented most irregularly, as we know from a thousand facts. Moreover, with regard to the crimes meriting death and the proofs judged sufficient to convince others that a man has truly committed a crime meriting death, it is clear that in almost all nations and in all times and centuries the idea concerning these things has more or less always been the same for everyone, just as it is in all modern nations. The English and the Italians, for example, seek out the same degree of certainty regarding the crimes that merit the death of the criminal, and both decree nearly the same punishment for the same crimes. Therefore, there is no difference between these two nations in criminal proceedings against the accused save for this: the English and other nations condemn someone to death without seeking the confession of the accused, while the Italians do not condemn anyone to death without first extracting a confession; and that in England, after certain proofs of his crimes, a criminal can no longer avoid death and infamy, while, contrarily, in Italy it is possible for a criminal to avoid

Part II

death despite the same proofs of guilt. Now one might ask all sincere and open-minded men which of these two methods in seeking the conviction of criminals is more favourable to the criminals themselves? Which is more careful, more sure, and less susceptible to fraud in condemning them to death, that of England or that of Italy? The English method, according to which the death sentence is given without waiting for the confession of the criminal? Or the Italian method, according to which the criminal is not condemned to death if he has not first confessed his crimes, either spontaneously or by the force of torture? … As far as I am concerned, I would not hesitate for a single moment in affirming that an Italian judge rather than the English judge is more favourable to criminals, more careful, more sure, and less susceptible to fraud in his judgments, for the former employs the apparatus of torture before conviction and seeks the confession of the accused, while the latter obtains a conviction only on the deposition of the witnesses and with the simple ascertainment of the corpus delicti, that is, with fewer formalities and with more frank efficiency. Such is my opinion on this subject, and for me the convulsions from torture that are forced from a few sacrilegious, wicked individuals, or even from some innocent individuals, amount to nothing when compared with the advantages the Italian method of obtaining convictions brings to all of society, to all the criminals meriting death, and even to those who suffer and who resist torture. All of what I have said here regarding the method of the English can be said against the examples of the Romans, the Swedes, and the Prussians, who would perhaps all follow the example of Italy if they could see the good, in all its ramifications, that such a method brings us, as well as the evils that it helps us to avoid. And they would be familiar with the many reasons that led us to deem necessary the extraction of a confession from the criminals before irrevocably condemning them to death. With regard then to the example of the Romans, one could add that the justice and humanity of the castigations and punishments of the ancient Quirites was so incautiously opposed to those of the modern Italians and others, because it is well known that the descendants of Romulus were just and humane only with their fellow republicans, but barbarous and unjust against all the other nations.

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I am persuaded that England is a nation that enjoys the glory of letters, superiority in commerce, and is even for this reason more powerful; and I am similarly gladdened by its examples of virtue and courage. And I know the religion and customs of almost all of the different nations, without however knowing their laws, nor with what exactness the laws are executed. Moreover, I have seen this phenomenon whereby many rich, glorious, and erudite men were at the same time most inept in governing themselves. I am aware, moreover, of the virtues brought about by the spirit of commerce and trade, and yet I do not know whether anyone has also demonstrated that the richest and most powerful empires have always been the happiest and have been governed by the best laws – just as I do not know if any history has ever maintained that the corruption of customs and the neglect of laws have coincided with the periods of empires’ greatest power. But it is scarcely important to understand so many things. What I would like to say is that our author has proposed to us the example of the other nations without much logic because – precisely because – they are not all the same, nor should their laws be the same. It is not my intention to show that the English, Swedes, and Prussians have made reforms in their civil and criminal laws that run contrary to those of the other nations, since they do the opposite of the Italians in so many other things. I will say, rather, that everyone knows how to distinguish the perfection of customs and laws born of a contemplative and creative mind from that which arises simply from various accidental combinations, which could be the outcome of fanaticism, of the spirit of a nation, of hatred, and of diligence, or might sprout as well from a mad and ambitious love for the ever-dubious innovation. In short, the contrary usage of some nations, however respectable they may be, is not apodictic proof that the use of torture as practised in Italy is truly useless and unjust. This is proven even less by the contrary example of the armies. The crimes of the soldier are ordinarily domestic theft and desertion, and they can be sent to trial without the use of torture; indeed, it would be difficult for the military to put into practice the formalities for the civilian criminal, and as our author knows well, the military is exempt from such formalities precisely because armies (as he himself says) ‘are made up for the most part of the scum of nations.’

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But where on earth did our author learn that armies do not make use of torture out of a concern for humanity and a more perfect justice? Armies have always done so, and they are right to continue to do so. But this does not mean that it should ‘seem strange that peaceful laws should have to learn a more humane method of judgment from spirits hardened in slaughter and blood.’ Indeed, what is really striking is that a man of talent and learning is so driven by his commitment to support a bad cause that he proposes to all nations that they imitate the necessarily rigorous and expeditious custom of punishment upheld by the honoured military. I dare say that I have proven that the use of torture is not unjustly cruel and useless, and that the reasons and disadvantages depicted by our author to prove the contrary are not conclusive. In all of this, I desire with the most complete sincerity and passion that all men can live in such a way so as never to provide an occasion for the use of torture in matters of justice and that the venerated justice of all sovereigns always be the most clement sort of justice. Let us abandon here such a gloomy matter as this. [The Death Penalty] 1. I ask of the most stubborn socialists: does a free man, in his original and natural condition of liberty before entering into any society, have the right to kill another man who wishes in some way to take his life? I am sure that all socialists, this time, will respond, yes.1 If someone were to ask me here about what right a free man has to kill his aggressor, I would answer that I do not know. Let one say whatever one wants: let it be said that it is a natural privilege enjoyed by all men; let it be said that it is a right given by nature to everyone to preserve one’s own life; let it be said that the law of the strongest ought to be called necessity, or a simple effect of the mechanism of the human body in such encounters; call it whatever you want – as long as I am granted that a man has this right and that he is ready to avail himself of it against any assailant. 2. I also ask whether it is possible, given the present state and condition of human nature, to form a society in which one couldn’t find

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someone sufficiently iniquitous as to be capable of killing one of his consociates for any motive whatsoever? I do not believe that a socialist would want to be so obdurate that he would not grant me that this is impossible. 3. Lastly, I ask that for just a single moment I be allowed to suppose it impossible that in any given society there will be no homicides and that no crimes will be committed, including the most atrocious and injurious crimes against that very society. I wish that this favour not be denied me and I promise that I will fulfil my duty immediately. For what end did the first men unite in society? Behold the great mystery that has been revealed and displayed in recent times by our scholars of public law: ‘men united in society to put their life in greater safety against the aggressions of one or more men.’ Although I am persuaded that man, just as he is now, would live more happily and enjoy greater security on his own than in society, I will in any case grant the doctrine of these gentlemen, and I will take the liberty of advancing these two new questions: (1) When does a man enjoy greater security in his life against the aggressions of one or more men – when he has more power than another man or when his power is inferior, that is, when he finds himself in society or when he is on his own? (2) Is the right and the power that a man has and that he retains after he enters into a society lesser or greater than what he had before entering into that very society? I will respond to the second question by saying that the right that a man retains after entering into society – and his power as well – are neither lesser nor equal to what he had previously, because otherwise he would have entered uselessly into that society and done so to his detriment. Therefore, they are greater. And if they are not greater, then this man has not accomplished the end for which he entered into a contract with the society, an end that we have supposed to be that of obtaining greater security for his own life. For society to have power and the right necessary to endure safely (as it is to be wished), its job is to make these be of a greater degree than those which a man has when alone, otherwise this society would be useless to him, and he would not be able to safeguard his life against the aggressions of so many assailants.

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In all human societies of the kind that have existed hitherto, many men can be found – in harmony with what we have maintained – who assail and wish to kill one of their fellow citizens, and who actually kill him. So that this does not occur, it is necessary that society assail or kill the presumed assailants or murderers, otherwise it would not be the case that a man, upon entering society, acquires greater security in his life; he would not obtain the end for which he entered into society; and he would be in an inferior position united in society than he would be if he were by himself and isolated from everyone. Therefore, since a society must have greater power than a single man in order to ensure the life of all, it must also have a greater right than all its citizens taken together; and since a single man has the right to kill another (as is our assumption) whenever he is attacked, so too – or even more so – must we concede such a right to society. […] But there are even worse things that can be said against the opinion of our author. He acknowledges and recommends that instead of punishing delinquents with the death penalty, they should be punished ‘by perpetually denying them freedom, and making them become almost beasts of burden.’ I take this literally. But then, if one could find a Spartan philosopher who judged that slavery was an evil less tolerable than death, isn’t it true that in a similar case, the philosopher would be able to use the sentence of our politician and himself claim that society does not have the right to give the punishment of slavery, for ‘Who is this Spartan,’ our philosopher would say, ‘that is so vile he wished to leave it to the will of other men to punish him with perpetual slavery and make him almost a beast of burden?’ Is it no less certain that the same could be said by all citizens, in whose multitude it is impossible not to find those with an imagination so distorted that they would judge any punishment that is lighter and milder than death to be a greater one? And thus, if our author’s reasoning were valid, society would no longer have the right to punish anyone, because everyone could say, ‘What man would leave it up to the will of other men to deny him pleasure, like that, for example, of going to the country or living in the most savage solitude if he so wishes?’ […]

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Let us hear yet another. ‘For most people, the death penalty becomes a spectacle and for some an object of compassion mixed with indignation.’ This is true. ‘Both of these sentiments occupy the minds of the spectators more than the salutary fear that the law claims to inspire’ (this is not true, however, because terror always produces the effect of these two sentiments, that is, compassion and salutary terror): ‘But in moderate and prolonged punishments,’ our author continues, ‘the dominant sentiment is the latter, because it is the only one.’ This is not how it goes: moderate punishments make people callous precisely because they are prolonged, and they are no longer felt. But the memory of someone that we have seen executed will move us even more – even a year after the fact – than the continuous sight of a thousand prisoners. Here, to better buttress his case against the utility of the death penalty, the author has an assassin speak, placing a sophisticated reasoning in his mouth. Despite its length, I believe it worthwhile to transcribe it here so that one can hear that even among assassins some clearminded and assertive individuals may be found. The line of reasoning begins as such: ‘What are these laws that I am supposed to respect,’ says the assassin, ‘which leave such a great gap between me and the rich man? He denies me the penny I ask of him and justifies himself by ordering me to work, something with which he himself is unfamiliar. Who made these laws?’ the assassin continues to exclaim. ‘Rich and powerful men who have never deigned to visit the squalid hovels of the poor, who have never broken mouldy bread amid the innocent cries of hungry children and a wife’s tears. Let us break these ties,’ the assassin continues, ‘which are harmful to the majority and useful only to a few indolent tyrants. Let us attack injustice at its source. I will return to my natural state of independence; for awhile, I will live free and happy on the fruits of my courage and my industry; perhaps the day of pain and repentance will come, but it will be brief, and I will have a single day of suffering for many years of liberty and pleasure. King of a few, I will set fortune’s errors right, and I will see these tyrants turn pale and tremble in the presence of one whom, with an insulting ostentation, they considered lower than their horses and dogs.’ And thus, the argument of the imaginary assassin ends, after which our author immediately

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add this reflection: ‘Then religion comes into the mind of the scoundrel, who misuses everything, and, offering him an easy repentance and near-certainty of eternal happiness, greatly diminishes the horror of the final tragedy.’ From here he goes on to say that he will do virtually the complete opposite: ‘a man who sees a great number of years ahead of him, or even the rest of his life, to be spent in slavery and suffering in the sight of his fellow citizens with whom he lives in freedom and sociability.’2 How wrong is our author if he really believes that a man will fall into becoming an assassin after such reasoning, either moved and persuaded by the strength of these reflections, or by the dark reasons and by the desperate motives expressed in this reasoning. Other motives, other reasons, and other arguments are those that lead a wicked man to commit to a given path. If all of those who have led their lives among assassins had been able to understand and to make such reflections, there never would have been any assassins. I am even more amazed that our author, before conceiving such an insane line of reasoning, did not reflect on how it weakens the case for the uselessness of the death penalty. Had he stopped to think about it, he would have realized that if the wretched man mentioned in his example were to decide upon the pitiful profession of the assassin, despite the horrible tragedy that awaits him, he would with much less difficulty make a similar determination to become an assassin if he had nothing else to fear but a whole lifetime to be ‘spent in slavery and suffering in sight of his fellow citizens with whom he lives in freedom and sociability.’ For there is but a short step between the former life that our imaginary assassin led before giving himself over to iniquity – according to the description given with little insight by our author – and the life of slaves. In passing from that very life, or even from slavery, to such a tremendous tragedy, even assassins discern an infinite gap. I will not add anything more because I can only surmise that the author imagined and described that line of reasoning more as a small episode in his book than as a persuasive argument, because he himself will see that for certain souls born to become assassins, the thought that there is nothing more to fear than slavery, however hard it may be, would be a great encouragement to do evil, because they would always hope to

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free themselves or be freed by means of money, with the assistance of their relatives or their friends, with the help of their protectors, etc., or even in the event of a revolution, war, or fire, etc. We have before us the example of many who spontaneously lead a harder life than that of slavery, but we see only the occasional hotheaded person who commits himself to killing. The most painful slavery, together with the hope of some day freeing oneself, will never keep a man from committing a crime of the sort that deserves a thousand deaths. If the author wished to rejoin that he assumes that, in his system, there would be no hope of obtaining any exemption from punishments once they have been decreed, I would respond to him that he ought to go peddle his visions on Saturn, not on our fragile and shaky earth. There he might be listened to with greater indulgence when he explains seriously how here ‘it seems absurd’ to him ‘that the laws, that are the expression of the public will, and that execrate and punish homicide, should themselves commit one, and that to deter citizens from murder they should order a public murder,’ because we would respond that the same could be said against those who condemn us to perpetual slavery in order to distance ourselves from slavery. [The Rousseau of the Italians] Almost all that our author puts forth in this book of his is based on nothing other than two false and absurd principles: that all men are born free and naturally equal and that the laws are nothing but – nor should they be anything other than – free pacts between such men, made in the act of uniting in society in order to give greater security to one’s own life. But the author has not calmly reflected that, although man is a social animal, as can be inferred from his needs and inclinations, and the consequences of these, and also belongs to one of those species that multiply greatly, he is naturally so proud and so inclined towards freedom and independence that it is inconceivable that he should willingly subject himself to obeying other men – so much so that, by his nature, he refuses to obey his own reason and

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often finds himself in contradiction with himself. I will confess that however much I myself recognize my inability to guide and govern even a turtle, I would choose in any case to live independent in the most remote and deserted woods than to subject myself to the will of whomever and of whatever pact. The first ruler of Rome killed his own brother in order to rule alone. And even inside the most sanctified religious communities, although governed by the most perfect kind of aristocracy, there have been more than one Dionysus and Cromwell, as well as some of the most unjust and most cruel atrocities. I deduce from all of this that the author’s two principles are false and untenable. Nonetheless, as if these were two incontrovertible truths accepted by everyone, with terrible audacity he bases everything that he advocates upon them – against the necessity for secret accusations and condemnations, against torturing criminals to reveal their confession for public justification and caution, and against the justice and utility of the death penalty with which the wicked and those who disturb society are punished. These are the principal arguments that the author has developed. All other matters he has touched upon only lightly and with the sole intent of criticizing the most common European legislation. But how could he have done otherwise? Our author’s short book contains a mere one hundred and four pages, in a small octavo, printed in a rather large typeface. This book of such small proportions is full nonetheless with long and useless invectives against the legislators and against the princes – ecclesiastic as well as secular – and especially against the Sacred Tribunal of the Inquisition. And it contains all of the greatest and most blasphemous sedition ever encountered against the sovereign rulers and against the Christian religion from the most impious heretics and from all the irreligious, ancient and modern alike. Everyone should consider, therefore, how he was able to deal so narrowly in this book with the most vast and scabrous subject of crimes and punishments. In fact, he has written on these subjects more as a simple censor and declaimer than as a public lawyer and critic – so much so that it can be seen manifestly that the author composed his book not for the love of humanity and the public good, but to have an imposing mask behind which he could, with

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great candour and effect, unload his bile and his furore against all that is most respectable among us. As far as the style of the book is concerned, it is neat, noble, and suited to the topic, even though one recognizes that he affects the style of certain overly celebrated writers of our day, and in imitating them, he has shown himself to be overly critical and too great a lover of the ancients. In the oppositions he sets up, he is the same, and by no means pedantic, but only a little bit violent. He wished to imitate the moderns by making use of certain terms and certain geometric methods, but he has not done so successfully, because he made use of them out of context and too often. Hence, he has made his language too abstract in many places and thus unclear and very obscure. He writes otherwise with utmost exactness and he has made use of the most common Italian language, although he was not able to refrain from using many Gallicisms – the most common ones, which are almost unavoidable for many Italian writers, just like certain foreign coins. But while he may be commendable from a literary standpoint, he is reprehensible as a philosopher and politician. He would perhaps have been more successful had he written of prizes and honours. But it is clear that he aspires to be considered the Rousseau of the Italians. He went to great lengths to tell us nothing new aside from some great improprieties, nor anything good aside from scandalous and impious witticisms, and to verify yet again the observation of that sage, living figure of erudition: namely, that the most famous and the most admired strong-willed people of our age, thanks to our great confusion, are those who are neither able to discover nor to write anything useful or advantageous for the human race; on the contrary, many things have served nothing and do nothing other than disturb and damage societies. For this reason, I cannot but detest that indignant and shameless man who chose to print in Livorno, with an act of evil contraband, our author’s small book. But I am not at all surprised at this because such a publisher in that city comes off as a fool and baboon of Tuscan erudition, as does in the Venetian state, the cowardly, ignorant, and impertinent – and certainly not Venetian – producer of periodical pamphlets.3 But we can console ourselves that when it comes to the fame and the credit of

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writers such as the one here under consideration, the more area they cover, the less of a mark they will leave with the passage of time. Furthermore, it seems that our author has written only in order to show the cruelty and uselessness of certain punishments, in the illusory belief that he is doing something worthwhile for the public and will win their sympathy, given the fragility and feebleness of our century; but the same thing happened to him as to that modern Protestant writer who penned a book against the Eternità delle pene dell’inferno, about which it has been said that it did not abolish hellish punishments and proved that the purgatory that the author does not believe in does in fact exist.4 In this way, our author has not proved that the death penalty and torture are useless, and he has shown that some form of purgatory would be worthwhile even here on earth. With regard to his temperament, judging by what he writes in his book, he is truly a strong-willed man, but confused in matters of religion – not corrupt out of weakness, but rather of arrogance and eccentricity. And for this reason, he has availed himself of sophisms, paralogisms, misleading insights, and an aggressive style – in short, I’d say with sincere and humble regret that he sought in this small, empty volume to write down all of the errors and paradoxes that are to be found in the works of the most impious writers of our century. All of this, nonetheless, constitutes the greatest merit for which his book should be read, as well as the reason why it has been wisely suppressed in many Italian states. Certain types of people watch with greater pleasure and more curious admiration tightrope walkers and freaks than the most beautiful dancers on the floor and the most perfect and beautiful creatures. What surprises me most is that there are so many that are fully convinced that they are such profound metaphysicians and skilful politicians simply because they have read five or six little works like our author’s, and that they become so disdainful of all other authors that are neither Pyrrhonist nor libertines that they become truly insufferable. And this is why I thought it worthwhile to write my Notes against the book here under consideration. And as far as my Notes are concerned, I have nothing more to add except that I wrote them simply out of the pure love for the beauty of

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truth, and therefore I am nothing other than a guarantor of truth. Moreover, since I sought to imitate our author, who made no use of scholarship or authority, a reading of my Notes can never be too welcome. As such, I must confess that in writing against our author’s book, I always felt like I was playing the part of a timid surgeon who removes an abscess or amputates a gangrenous limb. I profess, moreover, that I was not inspired to write out of any particular hatred, and that, on the contrary, I have great respect for the talents of our author; and so if I have expressed myself with harsh and acrid words, I have done so with careful deliberation and with great self-control; I have not been moved by passion against a personal enemy but the enemy of all – against someone who attacks religion and every human and divine law. I do not believe it uncivil or tactless to call things as they are. Even if others were to think otherwise, I would accept this judgment, for, I repeat, I did not write this seeking to be praised (because I am aware of my frailty), out of hatred for the author (because I don’t even know who he is), or out of self-interest (because I am not so crass). I wrote it out of the simple love for the beautiful truth.

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pietro and alessandro verri

From Response to a Writing Entitled ‘Notes and Observations on the Book “On Crimes and Punishments”’ (1765) It is not a truly new or unexpected evil in Europe for men of letters to receive swiftly the most flattering acclaim of the public or the criticisms of some writer or another; nor can any of this be surprising to an author who has devoted a considerable amount of time to the important understanding of the human spirit. Nor still is it strange that even the most groundless accusations against an author be cloaked in the sacred mantle of religion – a religion that he carries in his heart, honours in his writings, and professes in his actions. We have indeed some examples of this in Italy during our own century in the figures of the priest Lodovico Antonio Muratori* and the Marquis Scipione Maffei,† two pious and respectable writers from any point of view.1 The enlightened Christian forgives the wrongs done to him and places in the right perspective such accusations culled from the sacrarium without at the same time hating the author or neglecting his duty to God and his own good name. * Sir Prevosto Muratori was accused of heresy for his book de Ingeniorum moderatione; see Vita del Prevosto Lodovico Antonio Muratori (Venice, 1756), 119. He was accused of heresy, insulted, abused, and threatened in print (120). He was accused of being the leader of a sect (130), the inventor of a new heresy against the Blessed Virgin (131). Bernardes published against him hundreds of infamies, insults, calumnies, contumelies, rude remarks (141). He was accused of Jansenism (146). After his death he was declared a heretic from the pulpits and damned (150), etc. † Sir Marquis Scipione Maffei was accused of being a reformer, heretical, Jansenist, Calvinist, etc. See Animadversiones ad Historiam Theologicam Dogmatum, & Opinionum de Divina Gratia; and see especially the work Infarinato posto al Vaglio.

Contemporary Reactions to On Crimes and Punishments

I have the honour to constitute for Italy a further example of the one provided by the two aforementioned illustrious men, and for the third time in this century it is fitting that the public be exposed to an attempted grave accusation of irreligion, predicated upon proofs truly unworthy of the holiness of the matter with which I dealt. The author who has advanced them appears to us under this title: Notes and Observations on the Book Entitled ‘On Crimes and Punishments.’ In those Notes and Observations, the author of On Crimes and Punishments is judged to be a man of limited and narrow mind, raving, an impostor, a deceiver of the public, of little talent, who knows not of what he speaks, who writes with insincerity, who nauseates with his blunt follies, who is a stupid impostor, furious, boundlessly satirical, turns the stomach, full of poisonous bitterness, calumnious mordacity, perfidious dissimulation, malicious ignorance, shameful contradictions, sophisms, quibbles, and paralogisms. It will be up to the public to decide who is wronged by these expressions, for which my adversary should not expect to find here a retort or rejoinder of any kind. The author of the Notes and Observations calls my book a work issuing from the deepest, darkest abyss, horrible, monstrous, full of poison, rashly audacious, calumnious, ridiculous, disgraceful, impious, slanderous, and that it exceeds the limits of the most malign and boundless satire. He finds in it excessive temerity, bold blasphemies, wild doctrines, unworthy insults, terribly insolent ironies, fallacious and miserable reasoning, irrelevancies, pedantry, rash and awkward sneers, treacherous sophisms, torturous quibbles, cruel invectives, repugnant atrocities, impertinent stupidities, deceptions, ridiculous equivocations, excesses of unreasonableness, angered invectives, horrendous equivocations, mordacity, scandalous and impious witticisms, enormous irrelevancies, clumsy assumptions, malicious calumnies, and incredibly blind audacity. But his anger is not limited to the author alone or his work, for even the printer cannot escape it, as he is characterized as an impudent and unworthy man. I am not however, prepared to respond in any way with this sort of eloquence. The adversary says that prior to beginning his

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Notes: ‘I will begin my notes and reflections calmly.’ The same tranquility will be employed in responding, for it seems easier to be a cold accuser than to respond to calumnies with moderation. The author of the Notes and Observations lodges many objections to the political principles and to the law of peoples that I have identified. I do not intend to meet his objections on these grounds; those who accept his objections would not approve of my reasoning in these matters, while those who would approve of my reasoning would have no need that I address them. The author of the Notes and Observations mounts two principal accusations against me: the first is based on religion and the second on the respect due to sovereigns. And these two very important accusations are the only ones in his book that I intend to examine. Let’s begin with the first. Part I Accusations of Impiety Eighteenth Accusation The author of the book On Crimes and Punishments pronounces an excessive temerity and a horrible blasphemy when he says that neither eloquence, nor rhetoric, nor even the most sublime truths are sufficient in curbing for any length of time the passions of men. Response I would imagine that the great temerity and the horrible blasphemy pertain neither to eloquence nor to rhetoric. They must pertain, therefore, to the most sublime truths. I ask of my accuser whether he believes these sublime truths – that is, those of the Holy Faith – are known in Italy. He would say that they are. I ask whether in Italy the passions of men have been curbed for any length of time. All of the sacred orators, all the judges, all the Italians reply that they have not. Therefore, in fact, ‘the profoundest truths are not enough to curb for any length of time the passions of men’; and as long as there are criminal

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judges, prisons, and punishments in Catholic nations, it will be a clear indication that the ‘most sublime truths’ are not enough. I have never maintained that truths of our faith could not curb – even permanently – the passions of men if they were to meditate upon them seriously, as reason would require; and to this end, let him look at my text where I say that ‘those who, imbued with true religion, have more sublime motives that correct the force of natural impulses’; on the other hand, I do say that in practice, men generally speaking do not undertake a serious meditation of the most sublime truths and, therefore, that ‘not even the most sublime truths are enough,’ as it is useful to repeat. The terrible blasphemy is thus vanquished. There remains the accusation of excessive temerity, but I am not the one who wrote it, and not having written it is a source of pleasure for the Christian, the philosopher, and honourable men. Part II Accusations of Sedition Second Accusation The author of the book On Crimes and Punishments lashes out wildly against the punishments that Catholic princes employ to punish crimes of heresy. Response In my entire book I always spoke of crimes, never of sins. I made this distinction in the very beginning and repeated it several times throughout the book. The only instance in which I said something even in passing with regard to the temporal punishments of sins, I said the following: ‘I am speaking only of the crimes that arise from human nature and from the social pact, and not of sins, whose punishments – even in this world – should be regulated by principles other than those of a limited philosophy.’ And these principles are the principles of the Holy Gospel, good theology, and canon law. So that’s how I lash out wildly against the Catholic princes that punish crimes of heresy!

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Sixth Accusation The author of the book On Crimes and Punishments opposes the sovereigns’ right to inflict the death penalty. Response If the book Notes and Observations were to survive into future centuries (a fate that I would not dare to flatter it with), it would certainly serve as a subject for many disputations among the erudite regarding the spirit of the eighteenth century. They will find the entire history of this century filled with examples of august beneficence, paternal love, and the most clement virtues, competitively exhibited by princes towards their subjects – examples and virtues that greatly surpass the examples seen in previous ages. They will see humanity respected in the midst of the necessary evils of war; they will see political freedom expanded; commerce reinvigorated everywhere; they will see magnificent public shelters erected for veterans and honoured warriors; they will see beggars saved from hunger and humiliation, fed, sheltered, and assisted with sovereign public munificence; they will see miserable little orphans and that segment of humanity born without civil and religious approval, which used to perish unhappily, now spared from the jaws of death in many parts of Europe by the paternal care of princes. They will see not only the pomp and haughtiness of previous times, but the humanity, the beneficence, and the blessings of peoples surrounding the monarchs of today, to whose thrones the most miserable have easy access and in whom they find the most secure and ready defence in their aid. They will see, in short, the fruits of a sweet and august virtue that seems to make up the distinctive character of our century. But how will they reconcile so many and so numerous examples with the laments of my accuser that the sovereigns’ right to inflict the punishment of death has been opposed? How is it possible, the erudite will say, that in those times the right to inflict the punishment of death was held to be very precious by the sovereigns!

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Contemporary Reactions to On Crimes and Punishments

My accuser scarcely knows the temperament of today’s sovereigns. He ought to know that all of today’s princes do not hold dear the baneful right to take a man’s life but rather regard this act as one of the most painful burdens of the principality. He ought to know that all of today’s princes do not hold dear the right to inflict the death penalty but rather would reward anyone who could find a means for providing public security without exterminating a single man. He should know that all of Europe’s princes have never made use personally of this most sad right, but instead have unloaded it on the courts, reserving for themselves alone the almost divine right to come to the rescue by granting pardons. He ought to know that some princes in this century have managed to imitate the examples of the emperors Maurice, Anastasius, and Isaac the Angel,2 who did not want to make any use of the power to punish by death. He should know, lastly, that all of today’s princes have limited, restricted, and curbed the use of the death penalty in their states – the criminal archives of every European nation and the tradition of all the living Europeans will attest to this. He who attacks always has a great advantage, for even an alleged accusation can be written in just a few lines, whereas a demonstration of the falsehood of the accusation requires, by its nature, many pages. I see this disadvantage and I hope that wise readers will not blame me for it. So have I ‘opposed the sovereigns’ right to employ the death penalty’? This is what I have said: ‘The death of a citizen cannot be deemed necessary, except on two grounds. The first is when he retains such connections and such power that he endangers the security of the nation even when deprived of his liberty, that is, when his very existence can provoke a dangerous revolution in the established form of government’ and if ‘his death were the only real way to deter others from committing crimes.’ If I have established two general classes of delinquents, against which the death penalty is ‘just and necessary,’ how can my accuser say that I have opposed the sovereigns’ power to administer the death penalty? One should note here in passing that all the absurdities and the imputations that my accuser raises against me in this regard stem from the arbitrary confusion that he has made between terms that I

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constantly distinguish: right and force. I already defined ‘right’ at the beginning of my book: ‘the aggregate of all the portions of freedom placed in the public depository constitutes the right to punish.’3 Now, because it cannot be presumed that any man has placed in the public depository that portion of freedom which is necessary for him to live, the thought justifying punishment by death cannot be called a right. But the notion of justifying the death penalty will be just and necessary against the two classes of crimes noted above, and this will be called power [podestà] – just and necessary power – because if it is found that the death of a man is useful and necessary for the public good, the supreme law of safeguarding the people gives the power to condemn to death; and this power will arise like the power of war, and it will be a ‘war of a nation against a citizen, which has deemed the destruction of his being to be necessary or useful.’ That this is the case can be seen in my book where I argued that the death penalty is just whenever it is useful or necessary just as I have expressly said that in order to prove that it is not worthwhile to administer the death penalty I have sought to make known that the death penalty is neither useful nor necessary. At the very beginning, I say as follows: ‘But if I can demonstrate that the death penalty is neither useful nor necessary, I will have won the cause of humanity.’ Whether or not I have demonstrated this assumption is not up to me to determine. Let my accuser believe whatever he wants, as long as it has nothing to do with the holy faith or the princes, but rather with pure reasoning. In short, my syllogism is as follows: The death penalty must not be inflicted if it is neither useful nor necessary. The death penalty is neither useful nor necessary. Therefore, the death penalty must not be inflicted. This is not a matter, therefore, of arguing about the rights of the sovereign. Don’t tell me that my accuser maintains that ‘the punishment of death must be inflicted, even though it is neither useful nor necessary.’ Such a scandalous and inhumane proposition could not be uttered by a Christian man. If I have not argued well in the minor

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premise, this is a crime of lèse-logique, not of lèse-majesté. My errors are otherwise compatible; they are of the type committed by many zealous Christians in the first centuries of the Church; they are of the type committed by monks in the time of Theodosius the Great, of which Muratori speaks in the Annals of Italy ‘Theodosius passed a law against the monks, so that they would remain in their convents, for their charity towards their neighbour had arrived at such a point that they were taking criminals from the hands of executioners because they wanted no one to die.’ My own charity does not go so far, and I wilfully acknowledge that such charity had been poorly handled in those times. Such a violent action against public authority is always blameworthy. I have never taken a single criminal from the hands of the executioners. I have written that it is just that they be sent to the executioner when it is useful or necessary to do so. I have deemed that this can be neither useful nor necessary, save for during the troubled times of a nation. And he has the gall to say that I ‘oppose the sovereigns’ right to inflict the death penalty’! And a man must hurl himself against me because I wrote that men ought not to be killed except out of public utility or necessity! And so this man would wish to say that my opinion is erroneous, that there is something rotten about it, that I am a strong-willed man, that my reasoning is insane, that I am an imposter, that I accuse divine providence itself of cruelty, that I say impertinent nonsense, that I’m revolting, that I equivocate in absurd ways, and that wise men will always treat similar truths with a disdainful eye, judging them to be opinions of vexed men, as he says that I have shown myself to be. Before I conclude my response to this sixth accusation, I cannot ignore one of his arguments that was couched in these terms. ‘If the author believes in the Holy Scripture, then he must follow its teachings that the death penalty is just, necessary, and that the laws and sovereigns must be respected.’ Where in my book can one find such nonsense such as the ‘punishments of death decreed by God among the Chosen People are not just and necessary’? Where does it say in the book that ‘the death penalty should not be administered even when it is just and necessary’?

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My accuser has a talent for confusing one argument with another. To repeat, I said that when the death penalty is useful or necessary, it is therefore just and must be administered. And he toils to prove to me that the death penalty can be just and necessary? But my accuser uses a quotation from Holy Scripture against an argument of mine that he failed to understand. I must thus remind him of what has been written in thousands of books, that is, that the government of the Hebrew people was not monarchic; it was not aristocratic; it was not democratic; it was not mixed; it was, rather, theocratic, that is, guided directly by the hand of God and made visible in the many miracles performed for the advantage and education of His people, and whose prophets spoke directly to that nation with the voice of God. If he reads the Holy Scriptures, as well as the wise and orthodox interpreters, he will see that many facts in the history of that people could not lend themselves to our imitation. The circumstances surrounding the exodus from Egypt and the entrance into the Promised Land were just only then because they were decreed by the Supreme Creator, Lord of all men and things, who never loses His way and whose deeds are admirable and inscrutable to the feeble human eye. With this in mind, I must furthermore inform my accuser how, with the promulgation of the Gospel and the institution of Grace, it was not so much the ceremonial laws of the Old Testament that were abrogated, but the judicial. As Tertullian writes, ‘Vetus lex ultione gladii se vindicabat, nova autem lex clementiam designabat’ [The old law carried out justice through the revenge of the sword; the new law advocates clemency] (Tertullian Adversus Judaeos, Chapter III) – something that any well-read person would know. Let my accuser reflect thus on the fact that the only criminal case decided by our Christ the Redeemer did not end with lapidation, as the laws proclaimed, but rather with clemency. He should look closely at the Holy Gospel, the Acts of the Apostles, the writings of the early Christians, and the spirit of the Holy Church, that suspend from the holy ministry anyone who has anything to do with the death of another man, and determine whether my notion or his is more harmonious with the virtue of humaneness, beneficence, and tolerance of human errors, and I beg of him that he examine those issues on the basis of Christian principle to determine which is more consonant with Christianity.

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Finally, something must be said about what the Scriptures – and beyond the Scriptures, what good sense and reason – teach to any man of any religion with regard to respect for the laws and the sovereigns. Has there ever been a law that prohibits the saying or writing that a government can peacefully operate without decreeing the death penalty to any criminal? This is affirmed by Diodorus, Book I, chapter 65, which recounts how, with most praiseworthy clemency and great success, Sabacon, the king of Egypt, commuted capital punishments into sentences of slavery and made the criminals toil on public works. The same is said in Strabo, Book XI, of certain peoples near the Caucasus who ‘nemini mortem irrogasse quamvis pessima merito.’ [decreed death to no one, no matter how badly it was deserved]. This is said in the histories of Rome after the Porcius Law,4 which established that the life of a Roman citizen could only be taken with a sentence of all of the people. Livy speaks of this law in Book X, chapter IX. Lastly, this emerges from the example of the twenty-year reign in our own day in the largest empire in the world, Moscow, where the recently deceased princess, upon taking the throne, vowed not to take the life of any criminal and upheld her pledge without causing justice to deviate from its course or any visible worsening of the public peace. If these facts are sound, it is clear thus that a government can survive without ordering the death penalty for any criminal. And for having written something known to all, my adversary believes that laws or kings are hurt by this! The only things that do harm to laws, sovereigns, and men are false or slanderous utterances. Are we to presume that a citizen who obeys the present laws is forbidden to wish and to write so that more appropriate, clearer, and milder laws be promulgated? Is it a crime to reason on what doesn’t work in all nations so that they might seek reform? Does my accuser regard the upstanding and illustrious Scipione Maffei to be a subverter of public peace, a violator of laws, or a slanderer of the sovereigns and of the Church for having fought against witchcraft, such that he could say of Maffei that ‘he treated as cruel tyrants all of the princes and all of the sovereigns of the century, as well as the wise men of the Church, because they had condemned to death the wicked (or as one would have called them back then, the sorcerers

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and witches),’ a notion that my accuser would like to impute to me.5 Does he believe that there is or could be any government in Europe that considers itself to be so perfect that the very suggestion of a possible change would be a source of offence? I can assure my accuser that all European governments and all princes of states accept or exclude books as they deem appropriate, that they listen to or reject universal propositions according to whether or not they are good for the nations that they preside over; and I also assure him that they would never consider someone to be less than respectful who expounds his opinions broadly, good or bad as they may be, without any aim or purpose of displeasing anyone.

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françois-marie arouet de voltaire

Commentary on the Book On Crimes and Punishments, by a Provincial Lawyer (1766)

I The Occasion for this Commentary I was engrossed by a reading of On Crimes and Punishments, a short book that in matters of morality can be compared to what in medicine are the few remedies by which our sufferings can be alleviated. I fancied that such a work might soften the barbarities that linger in the jurisprudence of so many nations. I was still hoping for some reform to occur in the human race when I learned that an attractive and shapely eighteen-year-old girl, who possessed useful talents and belonged to a very respectable family, had just been hanged in one of the provinces. She was guilty of having become pregnant; she was guiltier still of having abandoned her child. This unfortunate girl, running from her father’s house, went into labour and, alone and without any help, delivered her child near a fountain. Shame, which in the female sex is a powerful passion, gave her enough strength to return to her father’s house, and to conceal her situation. Her abandoned child was found dead the following day; the mother was discovered, sentenced to be hanged, and executed. The first wrong of this girl should have been handled either as a family secret or entrusted to the protection of the law, because it behooves the seducer to mend the evil that he had done, because weakness has a right to leniency, because every sentiment speaks in favour of a young woman whose pregnancy when hidden often puts

Part II

her life in danger and when made public destroys her reputation, and because the difficulty of providing for a child is a great additional misfortune. Her second wrong was more serious: she abandoned the fruit of her weakness and exposed it to the risk of death. But does the death of the child justify the death of the mother? She did not kill the child; she thought that some passerby would take pity on that innocent creature. She might even have had the intention of returning to her child and bringing it all necessary assistance. This feeling is so natural that one must assume it exists in a mother’s heart. In this province of which I speak, the law is unquestionably set against the woman. But at the same time, is it not an unjust, inhuman, and pernicious law? It is unjust because it makes no distinction between a woman who kills her child and a woman who merely abandons it; it is inhuman because it causes the cruel death of an unfortunate being whose only fault lies in her weakness and the pressing desire to conceal her miserable condition; it is pernicious because it forcibly tears from society a citizen who was destined to provide subjects to the state in a province where people are complaining about the declining population. In this country, charity has not yet set up houses where abandoned children can be nourished. And where charity is lacking, the law is always cruel. It would be much better to prevent these misfortunes, which are quite common, than to do nothing more than punish them. True jurisprudence aims to prevent the crimes, not to deliver death to the weaker sex, when it is quite clear that her wrong was not the outcome of malice and that it left her with a heavy heart. Provide, as far as possible, the means for avoiding evil to those who may be tempted by it and you will have fewer criminals to punish. II Forms of Torture This deplorable turn of events, and the unbending severity of the law, which has struck me so acutely, provoked me to take a good look at the criminal code of nations. The compassionate author of On Crimes and Punishments is more than justified to complain that punishment is

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too often excessive in relation to the crime, and that sometimes it is even detrimental to the state it was intended to benefit. Those sophisticated forms of torture, whereby the human mind has painstakingly worked to make death more frightful than it is, seem to be more the inventions of tyranny than of justice. The torture of the wheel was introduced in Germany in times of anarchy, when those who cloaked themselves with regal power wished to frighten, through the adoption of an unheard-of form of torture, anyone who might entertain the thought of taking his life. In England, they would open the belly of a man convicted of high treason, tear out his heart, slap his cheeks with it, and then throw it upon the flames. But what did this crime of high treason often amount to? During the civil wars, high treason meant having remained faithful to an unfortunate king, and, of occasionally having asked that the dubious rights of the victor be justified. In time, however, manners became milder; true it is that they continued to tear hearts out, but only after the death of the condemned. The spectacle is dreadful, but the death itself is sweet, if death can ever be said to be so. III On the Punishment of Heretics It was tyranny in particular that first decreed the death penalty for those who differed with the established Church on some dogmas. Before the tyrant Maximus, no Christian emperor ever thought of condemning a man to be tortured merely because of some controversial matters. It is true, of course, that it was two Spanish bishops that demanded the death of the Priscillianists under Maximus; but it is nonetheless true that this tyrant wanted to gratify the ruling party by shedding the blood of heretics. Barbarity and justice were viewed by him with equal indifference. Jealous of Theodosius,1 who was also a Spaniard, he mused that he could take the Eastern Empire just as he had invaded the Western Empire. Theodosius was despised for his cruelties, but he understood how to get all of the religious leaders on his side. Maximus wanted to display the same zeal, and to harness the Spanish bishops to his faction. He flattered both the old and the new religion; he was a man as duplicitous as he was inhumane, as indeed

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were all those who, during this period, aspired to or obtained the empire. This vast area of the world was governed like Algeria is today. The army created and dethroned the emperors; and the emperors were very often chosen from the nations with a reputation for barbarity. Theodosius thus opposed him with other barbarians from Scythia. It was he who filled his armies with Goths, and who summoned Alaric, the conqueror of Rome. In this horrible confusion, it was a question of who could strengthen his faction the most and by any means possible. Maximus had just arranged the assassination in Lyon of Gratian,2 Theodosius’s accomplice, and he plotted the destruction of Valentinian II,3 who as a child had been named successor to Gratian in Rome. He assembled a powerful army in Trier composed of Gauls and Germans. He was recruiting troops in Spain when two Spanish bishops, Idacio and Ithacus (or Ithacius), who were influential figures, came and asked him for the blood of Priscillian and of all his followers who claimed that souls emanate from God, that the Trinity does not have three Hypostases, and who, furthermore, carried their sacrilege so far as to fast on Sundays. Maximus, who was half-pagan and halfChristian, immediately felt the enormity of these crimes. The holy bishops Idacio and Ithacius obtained permission to put Priscillian and his followers to the question before putting them to death. They were both present at this in order to see that all things were conducted properly, and they returned home praising God and placed Maximus, the defender of the faith, among the ranks of the saints. But since Maximus was defeated by Theodosius, and then murdered at the feet of his conqueror, he was not even canonized. It should be noted that Saint Martin, Bishop of Tours, who was a truly good man, pleaded for mercy for Priscillian; but the bishops accused Martin himself of being a heretic, and he returned to Tours for fear of being put to the question in Trier. As for Priscillian, after having been hanged he had the consolation of being honoured by his sect as a martyr. They celebrated his feast day, and they still would today if there were any Priscillianists left. This example made the whole Church tremble, but soon thereafter it was not only copied, but surpassed. Priscillianists had been put to death by the sword, by rope, and by stoning. A young lady of good

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family, suspected of having fasted on a Sundays, was only stoned to death in Bordeaux.* These tortures, however, appeared too mild, since it had been duly proved that God required heretics to be burned over a slow fire. The decisive argument offered in support of this was that God himself punishes them in this manner in the other world, and that every prince, every lieutenant of every prince, even the most petty magistrate, is the image of God in this world. It was on this principle that sorcerers, who were manifestly under the influence of the Devil, were burned everywhere, as were the heterodox, who were deemed to be more criminal and dangerous than the sorcerers themselves. We do not know exactly what heresy was imputed to the canons whom King Robert, son of Hugh, and his wife, Constance, had burned in their presence in Orléans in 1022. How could we know? At that time there were none but a few clerics and monks who had the habit of writing. All that has been recorded is that Robert and his wife feasted their eyes on this most horrible spectacle. One of these sectarians had been confessor to Constance; that queen could not think of any better way to make up for the misfortune of having confessed to a heretic than by seeing him devoured by the flames. The custom became law; from that period down to the present, a space of more than seven hundred years, those who have been, or appear to have been, tarnished by the crime of holding erroneous opinion have been burned. IV On the Eradication of Heresies In matters of heresy, it seems to me that we ought to distinguish between opinion and faction. From the earliest days of Christianity, opinions were divided. The Christians of Alexandria did not think like those of Antioch on many points. The Achaians differed from the Asiatics. Such diversity has lasted throughout the ages, and will probably last forever. Jesus Christ, who could have united all of his followers in the same sentiments, did not do so. It is to be presumed, * See Histoire de l’Eglise.

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therefore, that he did not wish to do so, and that his plan was to train all his churches to be kind and charitable by permitting them to have different systems, which all joined together in recognizing him as their leader and master. All these sects, which were long tolerated by the emperors or hidden from their view, were unable to persecute each other since they were all equally subject to the Roman magistrates; they could only argue. When persecuted by the magistrates, they all claimed the same natural right. ‘Allow us,’ they said, ‘to worship God in peace and do not rob us of the liberty you grant to the Jews.’ Every sect today can make the same argument to those who oppress them. They can say to those who grant privileges to the Jews: ‘Treat us like you treat these children of Jacob; let us pray to God according to the dictates of our own conscience, just as they do; our opinions will do no more harm to your state than Judaism does. You tolerate the enemies of Jesus Christ; so tolerate us, for we adore Christ and differ from you only on a few theological subtleties. Do not deprive yourselves of useful subjects. It is important to you that they should work in your factories, in your navy, and in the cultivation of your lands, and it is of little importance to you that they differ with you over a few articles of faith. Their labour is what you need, not their catechism.’ A faction is something quite very different. It always and necessarily happens that a persecuted sect degenerates into a faction. The oppressed unite and encourage each other. They are more assiduous in strengthening their party than the reigning sect is in exterminating it. They have to crush or they will be crushed. This is what happened after the persecution instigated by Galerius Caesar in 303, during the two last years of Diocletian’s empire. The Christians, having been favoured by Diocletian for eighteen whole years, had become too numerous and too rich to be exterminated. They joined Constantius Chlorus; they fought for his son Constantine, and there was a complete revolution in the empire. Both small and great events can be compared when they are animated by the same spirit. Similar revolutions took place in Holland, Scotland, and Switzerland. When Ferdinand and Isabella drove the Jews out of Spain, where they had settled not only before the time of

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the reigning house, but before the Moors and the Goths, and even before the Carthaginians, the Jews might easily have brought about a revolution in Spain if they had been as warlike as they were rich, and if they had been able to reach an agreement with the Arabs. In short, a sect only ever changed the government when despair furnished it with weapons. Muhammad himself only succeeded because he was driven from Mecca and a price had been put on his head. If you wish to prevent a sect from toppling the state, use tolerance; and imitate the wise conduct followed today by Germany, England, and Holland. With regard to a new sect, the only choice to make in politics is to put to death, without mercy, the leaders and their followers – men, women, and children, without exception – or to tolerate them when the sect is large. The first approach is that of a monster, the second of a wise man. Bind all of the subjects of the state to the state with the chains of their own self-interest. Let the Quaker and the Turk find it to their advantage to live under your laws. Religion comes from God to man; the civil law comes from you to your people. V On Acts of Desecration Louis IX, king of France, who was numbered among the saints for his virtues, was the first to make a law against blasphemers. He condemned them to a new type of torture: their tongues were pierced with a hot iron. This was a sort of lex talionis: the member that had sinned suffered the pain for it. But it was very difficult to determine what constitutes blasphemy. Expressions slip out in anger, or in joy, and even in ordinary conversation, which, properly speaking, are merely expletives, such as the sela and vah of the Hebrews, the pol and the edepol of the Latins, and the per deos immortales, an expression made use of quite routinely without actually taking an oath on the immortal gods. The words, which are called curses or blasphemies, usually consist of vague terms, which may be variously interpreted. The law punishing them seems to have been taken from the Jewish commandment that says ‘Thou shall not take the name of God in vain.’ The ablest

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interpreters think that this law prohibits perjury, and they are right insofar as the word shavé, translated as in vain, truly means perjury. Now, what relation can there be between perjury and the words softened with cadélis, sangbleu, ventrebleu and corbleu? The Jews swore on God’s life: Vivit Dominus. 4 It was a common phrase. The only thing forbidden was to lie in the name of God, who was called upon to bear witness. In 1181, Philip Augustus condemned the nobility who uttered the words têlebleu, ventrebleu, corbleu and sangbleu to pay a fine, and he ordered commoners to be drowned. The first part of this ordinance seemed puerile; the second was abominable. It was a crime against nature to drown citizens for the same offence that noblemen expiated with what amounted to two or three sous in the currency of those times. Moreover, this strange law remained unenforced, like so many others, particularly when the king was excommunicated and his kingdom placed under an interdict by Pope Celestine III. Saint Louis, inflamed with zeal, ordered indiscriminately that whoever uttered these indecent words should have his tongue pierced or his upper lip cut off. When an important bourgeois of Paris paid with his tongue, he complained to Pope Innocent IV. The pontiff reproached the king that the punishment was too severe for the crime. From then on, the king refrained from this sort of severity. It would have been a good thing for human society if the popes had never had any other victory over kings. Louis XIV’s ordinance, of the year 1666, decrees: ‘That those convicted of having sworn on and blasphemed the holy name of God, of his most holy mother, or of his saints will be sentenced in the following way: for the offence, to pay a fine; for the second, third, and fourth offence, the fine will be doubled, tripled, and quadrupled; for the fifth offence, to wear an iron collar; for the sixth, to be pilloried and have the upper lip cut off; and for the seventh offence, to have his tongue entirely cut off.’ This law appears to be wise and humane; it inflicts a cruel punishment only after six offences. But for more serious acts of desecration, called sacrilege, our volumes of criminal jurisprudence, whose judgments must not be taken for

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laws, refer only to theft committed in churches, and no positive law even mentions punishment by fire. These volumes do not elaborate on the subject of public impiety, either because such folly was not anticipated or because it is too difficult to specify the acts that would constitute such an offence. Punishment for such crimes is thus left up to the wisdom of the judges. But justice should have nothing arbitrary about it. In such rare cases, what must judges do? Take into consideration the age of the offender, the nature of his offence, the magnitude of his malice and the scandal it creates, his stubbornness, and the need that the public may or may not have to exact a terrible punishment. Pro qualitate personae, proque rei conditione et temporis et aetatis et sexus, vel severius vel clementius statuendum [The severity or mildness (of the punishment) should be set in accordance with the status, age, and sex of the person, the nature of the property, and the time].* And if the law does not expressly specify death for this crime, what judge would feel obliged to pass this sentence? If punishment is necessary, and if the law is silent, the judge should pass the mildest punishment without any hesitation, because he is a man. Acts of sacrilegious desecration are only ever committed by young rogues. Would you have them punished as severely as if they had murdered their brothers? Their youth argues in their favour: they cannot do as they please with their property because they are not believed to be mentally mature enough to see the consequences of a bad deal; therefore, they are not mature enough to see the results of their impious recklessness. Would you treat a dissolute young man who, in his short-sightedness, profaned a sacred image but did not steal it, in the same way that you treated the Brinvilliers girl, who had poisoned her father and her family?5 There is no law against unhappy youth; so you create one in order to subject him to the most severe torture! He deserves an exemplary chastisement; but does he merit torments that frighten nature, as well as a horrendous death? * Title 13, Ad legem Juliam.

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He has offended God, indeed, and grievously so. Deal with him then as God would. If he is penitent, God pardons him. Therefore, impose a heavy penitence on him, and pardon him. Your own illustrious Montesquieu said, ‘One must make divinity honoured, and one must never avenge it.’6 Consider these words carefully: they do not mean that the maintenance of public order must be abandoned; they mean, rather, as the judicious author of On Crimes and Punishments says, that it is absurd for an insect to believe that it can avenge the Supreme Being. Neither a village judge, nor a city judge is a Moses or a Joshua. VI The Leniency of the Romans in These Matters From one end of Europe to the other, the subject of conversation of respectable, educated people has often turned upon the vast difference between the laws of the Romans and so many barbarous customs that have come after them, like garbage covering the ruins of a splendid city. Undoubtedly, the Roman senate had as much respect for the Supreme God as we do, and as much for the secondary immortal gods, who were dependent upon their eternal ruler, as we have for our saints. Ab Jove principium …,7

was the common expression. Pliny, in his panegyric on the good Trajan, begins by stating that the Romans never failed to invoke the Deity when they entered in business or at the commencement of their speeches.* Cicero and Livy confirm this assertion. No people were ever more religious, but they were also too wise and too magnanimous to condescend to punish idle language or philosophical opinions. They were incapable of inflicting barbaric tortures on those

* Bene ac sapienter, patres conscripti, majores instituerunt, ut rerum agendarum, ita dicendi initium a precationibus capere, etc., [When our elder legislators set down the law, they did so well and wisely, and whatever they said about the things that had to be done was predicated on precaution]. Pliny the Younger, Panegyric of Trajan, chapter I.

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who had no faith in auguries, like Cicero, who was himself an augur, nor on those who said in the middle of the senate, as Caesar did, that the gods do not punish men after death. It has often been remarked that the senate allowed the chorus in the Troades to sing at the theatre in Rome: ‘There is nothing after death and death itself is nothing. You ask, what becomes of the dead? They are where they were when they were born.’8 If ever there was blasphemy, without a doubt this is it. From Ennius to Ausonius, all is blasphemy, despite the respect generally paid to religion. Why then did the Roman senate not repress them? Because they had absolutely no effect on the government of the state and did not disturb any institution or religious ceremony. In this, the Romans were no less excellent in maintaining order, nor were they any less the absolute masters of the most beautiful part of the world until the time of Theodosius II. As has been said elsewhere, the maxim of the senate was Deorum offensae diis curae – offences against the gods concern the gods alone. Through the wisest institution, the senators managed religious affairs, and they had nothing to fear that a convocation of priests would force them to seek vengeance under the pretext that Heaven was to be avenged. They never said, ‘Let us tear the impious to pieces, lest we be deemed impious ourselves; through our own cruelty let us prove to the priests that we are no less religious than they.’ Our religion is more holy than that of the ancient Romans. For us, impiety is a much greater crime than it was for them. God will punish it; it is up to man to punish the crimes born of public disorder that impiety has provoked. Now, if in committing an impious act no handkerchief has been stolen, if no one has suffered even the slightest injury, if religious rites have not been disturbed, shall we punish (to repeat once again) this impiety as we would a parricide? The Marshal d’Ancre’s wife had a white cock killed under a full moon; did she have to be burned for this?9 Est modus in rebus, sunt certi denique fines.10 Ne scutica dignum horribili sectere flagello.11

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VII On the Crime of Preaching, and on Antoine A Calvinist preacher who comes secretly into certain provinces in order to preach to his sheep is punished by death if he is caught,* and those who have given him food or shelter are sent to the galleys for life. In other countries, a Jesuit who comes to preach is hanged. Is it God whom people wish to avenge in having that preacher and that Jesuit hanged? Do not both sides justify their deeds by appealing to this law from the Gospel: ‘[Whoever] refuses to listen even to the Church, let him be to you as a pagan and a tax collector.’?12 But the Gospel does not order that people kill the pagan and the tax collector. Or have they drawn upon the following lines from Deuteronomy: ‘If a prophet arises among you … and if what he predicts comes to pass … and he says to you: Let us follow other gods … and if your brother or your son, or your dear wife, or your close friend says to you: Come, let us go and serve other gods … kill him immediately; be the first to strike him down, and after you let all people follow you’?13 But neither that Jesuit nor that Calvinist said to you: Come, let us follow other gods. The counsellor Dubourg, the monk Jehan Chauvin (commonly known as Calvin), Servetus the Spanish physician,14 and the Calabrese Gentilis all served the same God. And yet the President Minard had counsellor Dubourg hanged, and Dubourg’s friends had Minard assassinated; and Jehan Calvin had the physician Servet slowly roasted and also had the consolation of playing a large role in bringing Gentilis to the block; and the successors of Calvin had Antoine burned. Was it reason, piety, or justice that produced all these murders? The story of Antoine is one of the most peculiar to be recorded in the annals of stupidity. This is what I read about it in a very curious manuscript, reported in part by Jacob Spon. Antoine was born in Briey in Lorraine of Catholic parents, and studied at Pont-à-Mousson with the Jesuits. At Metz he was recruited into the Protestant religion

* Edict of 1724, and earlier edicts.

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by the preacher Ferry.15 On his return to Nancy, he was put on trial as a heretic, and if a friend had not saved him, he would have died by the rope. Having sought refuge in Sedan, he was taken for a papist, and the people wanted to murder him. Seeing by these strange misfortunes that his life was safe neither among Protestants nor Catholics, he went to Venice to become a Jew. He was sincerely convinced, and maintained it until the end of his life, that the Jewish religion was the only true one, and that since it had been so in the past, it must always be so. His Jewish brethren did not circumcise him for fear of having problems with the magistrate; but for this he was no less a Jew at heart. He made no open profession of his faith, and when he went to Geneva as a preacher, he was the first regent of the college and later became what is called a minister. The perpetual battle in his heart between Calvin’s sect, for which he was obliged to preach, and that of Moses, which was the only religion in which he believed, made him ill for a long time. He fell into a state of melancholy and came down with a cruel disease. Upset by his pains, he exclaimed that he was a Jew. Some ministers came to visit him and tried to bring him back to his senses. But he answered that he worshipped only the God of Israel; that it was impossible for God to have changed; that only God himself could have given a law, inscribed by his own hand, abolishing it. He spoke against Christianity, but then retracted what he had said; he wrote a profession of his faith in order to escape punishment, but after he had finished writing it, the unfortunate faith of his convictions prevented him from signing it. The city council assembled the preachers to ascertain what was to be done with this unfortunate man. A minority of priests expressed the opinion that pity should be taken on him, that it was more necessary to try to cure his mental illness than to punish it. The majority decided that he deserved to be burned, and he was. This incident took place in 1632.* A hundred years of reason and virtue were needed to expiate such a judgment.

* Jacob Spon and Gui Vances.

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VIII The Story of Simon Morin The tragic end of Simon Morin is no less shocking than that of Antoine. It was in the midst of the festivities at a splendid court, surrounded by gallantries and pleasures, and at a time of great freedom, that this unhappy wretch was burned in Paris in 1663. He was a crazy man who believed that he had visions, and he carried his folly to the point of imagining that he was sent by God and of being joined in Jesus Christ. The parlement quite rightly sentenced him to be locked up at PetitesMaisons.16 What is quite remarkable, however, is that there was another madman in the same hospital who said he was the Eternal Father, whose madness became legendary. Simon Morin was so struck by the madness of his companion that he recognized his own. He seemed to have returned to his senses for awhile. He showed repentance to the magistrates and obtained, unfortunately for himself, his release. Some time afterward, he relapsed into fits of madness and began to preach dogma. It was his bad fortune to have made the acquaintance of Desmarets de Saint-Sorlin, who for a few months was his friend but who quickly became his most cruel persecutor out of professional jealousy. Desmarets was no less of a visionary than Morin. His first follies were, in truth, innocent: these were the tragicomedies Erigone and Mirame, printed with a translation of the Psalms, the novel Ariane, and the poem Clovis, printed next to the Prayer to the Holy Virgin written in verse. There were also dithyrambic poems, enriched with invectives against Homer and Virgil. From this kind of folly, he moved on to another, more serious kind: he was seen hounding Port-Royal; and after having admitted turning some women into atheists, he set himself up as a prophet. He claimed that God had given him, with his own hand, the key to the treasure of the Apocalypse; that with that key he would reform all humankind, and that he was going to command an army of one hundred and forty thousand men against the Jansenists. Nothing would have been more reasonable and more just than to have put him in the same cell as Simon Morin; but wouldn’t you know, he had a lot of influence over the Jesuit Annat, the king’s confessor?

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He persuaded Annat that this poor Simon was founding a sect almost as dangerous as Jansenism itself. And, finally, after carrying his infamy so far as to turn into an informer, he obtained from the police lieutenant a warrant for the arrest of his unfortunate rival. Dare we say it? Simon Morin was sentenced to be burned alive. As he was being led out to his torture, a piece of paper was found in one of his socks in which he asked God’s pardon for all his errors. This should have saved him, but the sentence was confirmed, and he was executed without mercy. Such deeds make your hair stand on end. And in which country have such deplorable events not been seen? Men everywhere forget that they are brothers and they persecute each other to death. For the consolation of humankind, we must hope that those dreadful times will never return again. IX On Sorcerers In 1749 a woman was burned in the bishopric of Wurtzburg for the crime of witchcraft. It is a major phenomenon in our century. But is it possible that nations who boast of being reformed and of having trampled superstition underfoot, and which thought that they finally had perfected their powers of reason, could have believed in sorcery, to have burned poor women accused of being witches, and to have done so more than a hundred years after the supposed reform of their reason? In the year 1652, a peasant woman from the territory of Geneva, named Michelle Chaudron, met the Devil while she was leaving town. The Devil gave her a kiss, received her homage, and imprinted on her upper lip and right breast the mark that he bestows on those whom he distinguishes as his favourites. This seal of the Devil is a little mark that numbs the skin, as all the jurisconsults in demonography confirm of those times. The Devil then ordered Michelle Chaudron to bewitch two girls. She punctually obeyed her lord. The parents of the two girls legally accused her of devilry. The girls were interrogated and confronted with the accused woman. They testified that they felt a continuous

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sensation of pins and needles in certain parts of their bodies and that they were possessed. Doctors were called in, or at least men who passed for doctors at that time. They visited the girls, and they searched Michelle’s body for the seal of the Devil, which court proceedings call the marks of Satan. They thrust a long needle into her, which in itself already constituted a painful torture. Blood came out, and by her cries Michelle made it known that satanic marks do not at all numb the body. Since the judges did not find sufficient evidence that Michelle Chaudron was a witch, they put her to the question, a method that infallibly produces such evidence. The unfortunate woman, succumbing to the violence of the torments, finally confessed as much as anyone wanted. The doctors once again looked for the satanic mark. They found it in the form of a little black spot on one of her thighs, and they thrust a needle into it. The tortures employed while being put to the question had been so horrible that the poor, dying creature barely felt the needle, and did not cry out; indeed, the crime had been demonstrated. But because customs were beginning to become milder, she was burned only after having been hanged and strangled. All the courts of Christian Europe then echoed with similar warrants for arrest. Fires were lit everywhere for sorcerers in the same way as for heretics. What the Turks have been reproached for most is for having neither sorcerers nor demoniacs among them. Their absence has been taken as an infallible sign of the falsehood of a religion. A man with zeal for the public good, for humanity, for true religion has published, in one of his writings in support of the innocent, that Christian courts have condemned to death over one hundred thousand so-called sorcerers. If you add to these legal murders the much greater number of heretics sacrificed, this part of the world looks like a huge scaffold covered with executioners and victims, surrounded by judges, police henchmen, and spectators. X On the Death Penalty It has long been said that a hanged man is good for nothing, and that the tortures invented for the good of society ought to be useful to that society. It is clear that twenty robust thieves, sentenced to labour on

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some public works for all of their lives, serve the state through their suffering, and that their deaths will only benefit the public executioner, who is paid to kill people in public. Thieves are seldom punished by death in England; they are transported to the colonies. It is the same in the vast lands of Russia; no criminal was executed during the reign of the autocratic Elizabeth. Catherine II, who succeeded her and possessed a greater intellect, followed the same maxim. Crimes did not increase as a consequence of this humane approach, and it was nearly always the case that convicts sent to Siberia became respectable people. The same has been observed in regard to the English colonies. This happy transformation surprises us, but nothing is more natural. These convicts are forced into continuous work in order to live. They lack opportunities for vice: they marry and they have children. Force men to work and you make them into honest people. It is well known that serious crimes are not committed in the country, except perhaps when there are too many feast days, which force a man into idleness and lead him into debauchery. A Roman citizen was only sentenced to death for crimes that endangered the security of the state. Our masters, our first legislators, respected the blood of their fellow countrymen; we squander the blood of our own. For a long time, people have been troubled by the delicate and baleful question as to whether it is permissible for judges to punish by death when the law does not expressly call for the ultimate torment. This difficulty was solemnly debated before Emperor Henry VII, who passed judgment and decided that no judge can have that right.* There are some criminal acts that are so unexpected, so complicated, or connected to circumstances that are so bizarre, that in many countries the law itself has been forced to leave these peculiar cases to the wisdom of judges. But if in fact one case should arise in which the law allows an accused person who has not been convicted to be put to death, there are a thousand other cases in which humanity, which is stronger than the law, should spare the life of those for whom the law itself has ordained death.

* Bodin, De Republica, Book III, chapter 5.

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The sword of justice is in our hands, but we must blunt it more often than we sharpen it. It is carried in its sheath in the presence of kings to warn us that it should rarely be drawn. There have been some judges who liked spilling blood; one of these was Jefferies in England; another was the man in France whom was given the nickname coup-tête.17 Such men were not born to be magistrates; nature made them to be executioners. XI On Carrying Out Arrest Warrants Must we go to the ends of the earth, must we resort to the laws of China to learn how sparing we must be with the blood of men? The courts of that empire have existed for more than four thousand years, and for more than four thousand years, no villager on the fringes of the empire has been executed without the proceedings in his trial being sent to the emperor, who has them reviewed three times by his courts; after this he signs the death warrant, or a modification of the punishment, or grants a complete pardon.* Let us not search for such distant examples, for Europe is full of them. No criminal is ever put to death in England whose sentence has not been signed by the king; the same is true in Germany, and in almost all of the North. Such was the practice in France, and it should be so in all civilized nations. Far from the throne, cabal, prejudice, and ignorance can dictate sentences. Those petty intrigues of which the court has no knowledge can make no impression on the court, for it is absorbed with issues of great importance. The Supreme Council is more accustomed to such matters and less liable to be prejudiced. The habit of seeing everything broadly has

* The author of the Spirit of the Laws, who has disseminated so many fine truths in his work, seems to have made a cruel error when, in support of his principle that the sentiment of honour is the foundation of monarchies and that virtue is the foundation of republics, he says of the Chinese (VIII: 12): ‘I do not know how one can speak of honour among peoples who can be made to do nothing without beatings.’ Certainly, the fact that the populace is kept at bay with a cudgel, and the fact that they beat insolent and roguish vagabonds, does not mean that China is not governed by courts that watch over each other, and that this is not an excellent form of government.

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made it wiser and less ignorant. It can see better than the provincial lower court whether or not the state needs to make a severe example of someone. Finally, whenever a lower court has made a judgment according to the letter of the law, which can be rigorous, the council mitigates the terms of the warrant according to the spirit of every law, which is to sacrifice men only when there is a clear necessity. XII On Being Put to the Question All men, being vulnerable to violent attacks or treachery, hate crimes of which they may be victims. All are united in wishing for the punishment of the main offenders and their accomplices. But through a sense of pity that God has placed in our hearts, all of them rise to protest against the tortures that the accused – from whom people want to extract a confession – are made to suffer. The law has not yet found them guilty, and in the uncertainty surrounding their crime, they are inflicted with a torture far more horrific than the death they will be given once it is certain that they deserve it. How can this be? I do not know yet whether you are guilty and I must torture you in order to clear up my doubts; and if you are innocent, I will not compensate you for the thousand deaths that I have made you suffer instead of the single one that I was planning for you! Everyone shudders at this idea. I shall not bother to mention here that Saint Augustine protested against the use of judicial torture in his City of God. I shall not mention that in Rome only slaves were made to suffer torture, but that Quintilian nonetheless rejected such barbarity when he remembered that even slaves are men. If there were but one nation in the world that had abolished torture; if there were no more crimes committed in that nation as in any other; if moreover, it had become more enlightened and more prosperous since its abolition – that one example would suffice for the rest of the entire world. Let England alone teach other peoples. But she does not stand alone: torture has been proscribed successfully in other kingdoms. The whole matter has been settled. Will those peoples that pride themselves on being civilized not also pride themselves on being humane? Will they persist in an inhumane practice on the sole pretext

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that it is the custom? At least reserve such cruelty for those confirmed scoundrels who have murdered the father of a family or the father of a country. Look for their accomplices; but is it not a useless barbarity that a young person who has committed a few misdeeds that leave behind no traces should suffer the same torture as a parricide? I am ashamed of having discussed this subject again after what has been said by the author of On Crimes and Punishments. I must limit myself to wishing that people would read and reread the work of this lover of humanity. XIII On Some Blood Courts Would anyone believe that there was a high court more horrible than the Inquisition, and that this court was established by Charlemagne? It was the judicial process of Westphalia, otherwise known as the Vehmic Court. The severity, or rather the cruelty, of this court was carried so far as to punish by death every Saxon who broke his fast during Lent. The same law was established in Flanders and Franche-Comté at the beginning of the seventeenth century. The archives of a little rural locale called Saint-Claude, in the most horrible rocky part of the county of Burgundy, contain the sentence and report of the execution of a poor gentleman named Claude Guillon, who was beheaded on 28 July, 1629. He had been reduced to poverty and, pressed by extreme hunger on a fast day, he ate a piece of meat from a horse that had been killed in a neighbouring field. Such was his crime. He was condemned as sacrilegious. If he had been rich and had ordered for himself two hundred écus worth of fish for supper, while leaving the poor to die of hunger, he would have been looked upon as a man who fulfilled all his duties. Here is the judge’s pronouncement of the sentence: ‘Having seen all the papers of the trial and having heard the opinions of the doctors learned in the law, we declare the said Claude Guillon duly guilty and convicted of having carried away some meat of a horse killed in the fields of that town, of having cooked the said meat on Saturday, 31 March, and of having eaten it, etc.’ What great doctors they were, those doctors of law that gave their opinion? Was it among the Tupinambas or the Hottentots that these

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things happened? The Vehmic Court was much more horrible. It secretly appointed commissaries who spread through all the towns in Germany, gathering information from the accused without their knowledge, judging them without a hearing; and often, when they were short an executioner, the youngest of the judges carried out the duties of the office by hanging the convict himself. To be safe from the assassinations of this court, it was necessary to procure letters of exemption, safeguards from the emperors, even though these were often useless. This court of murderers was only completely dissolved by Maximilian I. It should have been dissolved in the blood of its members. The Venetian Council of Ten was, by comparison, a court of mercy. XIV On the Difference between Political Laws and Natural Laws I call natural laws those that nature indicates in all ages to all men for the maintenance of that sense of justice that nature, whatever one might say about it, has engraved in our hearts. Everywhere theft, violence, homicide, ingratitude towards generous parents, perjury committed to injure rather than to help an innocent person, and conspiracy against one’s native country are obvious crimes that are punished more or less severely, but always justly. I call political laws those laws that are made to meet a present need, whether to strengthen power or to prevent misfortunes. It is thought that the enemy might receive information about a town: the gates are shut and people are not allowed to escape over the ramparts on pain of death. People fear a new sect that makes a public show of its obedience to the sovereign but secretly plots to avoid that obedience; that preaches that all men are equal in order to impose its rites on them equally; and that on the pretext that it is better to obey God than men, and that the established sect is crammed full of superstitions and ridiculous ceremonies, wishes to destroy what the state has consecrated. The death penalty is decreed for those who, in publicly arguing in favour of this sect, may instigate the people to revolt. There is a dispute between two ambitious men over the throne; the stronger wins it and he calls for the death penalty for the supporters

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of the weaker man. The judges become the instruments of vengeance for the new sovereign and the supporters of his authority. Under Hugh Capet, whoever had anything to do with Charles of Lorraine risked being sentenced to death, unless he was powerful. When Richard III, the murderer of his nephews, was recognized as the king of England, the Grand Jury had Sir William Collinburn quartered, guilty of having written to a friend of the Count of Richmond, who was raising troops at that time, and who thereafter reigned under the name of Henry VII. Two ridiculous lines in his hand were found and they were enough to have the knight killed by means of a horrible torture. History abounds with similar examples of justice. The law of reprisal is also one of those laws accepted by nations. Your enemy has had one of your bravest captains hanged, who held off an entire army for a while in a little ruined castle; one of their captains falls into your hands; he is a virtuous man whom you respect and like; you hang him in an act of reprisal. It is the law, you say: that is as if to say, if your enemy has sullied himself with a great crime, you must commit another! All those laws of a bloodthirsty politics exist but only for a time, and one sees clearly that they are not true laws since they are shortlived. They are like the necessity to eat other people that you sometimes face in situations of extreme famine: once you have bread, you don’t eat them anymore. XV On the Crime of High Treason, on Titus Oates, and on the Death of Auguste de Thou People call high treason an attack on the country or on the sovereign who represents it. It is looked upon as a type of parricide: therefore, it must not be extended to crimes that do not come near parricide, for if you consider a theft from one of the houses of the state, extortion, or even seditious words to be an act of high treason, you diminish the horror that the crime of high treason or lèse-majesté should inspire. There should be nothing arbitrary in our understanding of what great crimes are. If you place a theft committed by a son against his father or a son’s profanity against his father in the same category as

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parricide, you break the bonds of filial love. A son will no longer look upon his father as anything other than a terrible master. Everything excessive in law tends to the law’s destruction. In ordinary crimes, the law of England favours the accused; but in those involving high treason it is unfavourable to him. The ex-Jesuit Titus Oates, having been judicially interrogated in the House of Commons, and having given his assurance under oath that he had nothing more to say, then accused the secretary of the Duke of York, later known as James II, and many other persons of the crime of high treason, and his declarations were accepted. At first, he swore before the king’s council that he had not seen the secretary; then he swore that he had seen him. Despite these illegalities and contradictions, the secretary was executed. The same Oates and another witness testified that fifty Jesuits had plotted to assassinate King Charles II, and that they had seen the commissions from Father Oliva, the general of the Jesuits, for the officers who were to command an army of rebels. The testimonies of those two men were sufficient to have the heart torn out of several of the accused, and their cheeks beaten with it. But, in all good faith, is the testimony of two witnesses sufficient to get those they wanted to destroy killed? At the very least, both informers ought not to be notorious villains; nor moreover, ought they to testify to improbable things. It is quite clear that if the two most respectable magistrates of the kingdom were to accuse a man of having conspired with the mufti to circumcise the entire council of the state, the parlement, the office of the comptroller, and the Archbishop of the Sorbonne, it would be moot that these two swore that they saw the letters of the mufti: one would think that they had gone mad rather than have faith in their deposition. It was equally outlandish to suppose that the general of the Jesuits was raising an army in England as it would be to suppose that the mufti was sending people to circumcise the French court. Nonetheless, people had the misfortune to believe Titus Oates, so there is no kind of atrocious folly that has not entered man’s mind. The laws of England do not consider as being guilty of conspiracy those who are privy to it and do not reveal it; they consider an informer to be as infamous as the conspirator is guilty. In France, those who are privy to a conspiracy but do not report it are punished

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by death. Louis XI, against whom people often conspired, passed this terrible law – a law that a Louis XII or a Henry IV would never have contemplated. This law not only forces a respectable man to become an informer of a crime that he could prevent by wise advice and firmness, but it exposes him further to be punished for calumny, for it is very easy for the conspirators to take measures such that he cannot convict them. This was precisely the case of the respectable François-Auguste de Thou, counsellor of state and son of the only good historian France can boast of, equal to Guicciardini in his enlightened ideas and perhaps superior to him in his impartiality. The plot was weaved more against Cardinal Richelieu than against Louis XIII. He was not acting so as to deliver France to her enemies; for the king’s brother, the principal author of the plot, seeing only a dying elder brother and two children still in the cradle between him and the throne, could not have aimed to surrender a kingdom to which he still considered himself the presumptive heir. De Thou was guilty neither before God nor before men. One of the agents of monsieur, the king’s only brother, of the Duke of Bouillon, sovereign prince of Sedan, and of the Grand Esquire d’Effiat CinqMars, had verbally communicated the plan of their conspiracy to the counsellor of the state. The latter went to the Great Esquire CinqMars, and did what he could to dissuade him from the enterprise; he noted the difficulties. If he had at that moment informed against the conspirators, he would have had no evidence against them; he would have been overwhelmed by the denials of the presumptive heir of the Crown, a sovereign prince, the king’s favourite, and finally by public loathing. He was exposing himself to be punished like a cowardly slanderer. Chancellor Ségnier himself was convinced of this when he confronted de Thou with the Grand Esquire. It was during this confrontation that de Thou said the following to Cinq-Mars, as was reported in the minutes of the case: ‘Remember, sir, that not a day passed that I did not speak to you about this treaty in order to dissuade you from it.’ Cinq-Mars acknowledged that it was true. In any humane and impartial court, de Thou would deserve a reward rather than death.

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At the very least, he deserved to be spared by Cardinal Richelieu; but humanity was not among Richelieu’s virtues. In this case, we may surely be dealing with something more than summum jus, summa injuria. The death warrant of this good man reads: ‘For having knowledge of and having participated in the said conspiracies.’ It certainly does not state: ‘for not having revealed them.’ It seems that the crime was to have known about the crime, and that people deserve to be put to death for having eyes and ears. All that can be said of such a sentence is that it was not the product of justice but of a few commissioners. The letter of this murderous law was clear. It is not only up to jurists, but to all men, to declare whether or not the spirit of the law had been perverted. It is a sad contradiction that a small number of men could have killed as a criminal someone who the whole nation judges innocent and worthy of respect. XVI On Disclosure by Confession Jaurigny and Balthazar Gérard (assassins of William I, the Prince of Orange), the Dominican Jacques Clément, Châtel, and Ravaillac, and all the other parricides of those times18 took confession before committing their crimes. Fanaticism during that deplorable age was carried to such excess that confession was just one more inducement to carry out their villainous act; such acts became sacred because confession is a sacrament. Strada19 himself says that Jaurigny ‘non ante facinus aggredi sustinuit, quam expiatam noxis animam apud dominicanum sacerdotem coelesti pane firmaverit’: ‘Jaurigny did not dare undertake that action without having fortified his soul with heavenly bread, having purged it through confession at the feet of a Dominican.’ It was evident from the interrogation of Ravaillac that this unfortunate man, upon leaving the order of the Feulliants and wishing to enter that of the Jesuits, had gone to see the Jesuit d’Aubigny; that after speaking to him of several visions that he had seen, he showed the Jesuit a knife, on the blade of which was engraved a heart and a cross, and he said these very words to the Jesuit: ‘This heart indicates that the king must be persuaded in his heart to make war against the Huguenots.’

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Perhaps if d’Aubigny had had enough zeal and prudence to inform the king of those words, and had he described the man who uttered them, the best of kings would not have been assassinated. On 20 August, 1610, three months after the death of Henry IV, whose wounds bled from the hearts of all Frenchmen, the AdvocateGeneral Servin, of still illustrious memory, required all Jesuits to sign the following four articles: 1 That the council is above the Pope; 2 That the Pope cannot deprive the king of any of his rights through excommunication; 3 That ecclesiastics are entirely subject to the king, just like everyone else; 4 That any priest who learns about a conspiracy against the king and the state in confession must so notify the magistrates. On the 22nd, the parlement issued a warrant forbidding Jesuits to teach the young before signing these four articles; but the court of Rome was so powerful at that time, and that of France so weak, that this warrant was useless. One fact worth noting is that the same court of Rome, which did not want confessions to be revealed when the lives of sovereigns were at stake, obliged confessors to denounce to inquisitors those whom their penitents accused in confession of having seduced them and abused them. Paul IV, Pius IV, Clement VIII, and Gregory XV ordered these disclosures.* This was a very dangerous snare for confessors and their penitents. It made a sacrament into a registry of accusations and even of sacrileges, for, by ancient canon law, and especially by the Lateran Council held under Innocent III, every priest who divulged confession, whatever its nature, was to be interdicted and imprisoned for life. But there is even worse: we find four different popes, in the sixteenth and seventeenth centuries who order the disclosure of a sin of impurity, but who do not permit the revelation of the crime of parricide. During * The Constitution of Gregory XV is dated 30 August, 1622. See the Mémoires ecclésiastiques of the Jesuit d’Avrigny, unless you prefer to consult the compendium of Papal Bulls.

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the sacrament before a Carmelite friar, a woman confesses, or alleges, that a Cordelier20 has seduced her. The Carmelite must denounce the Cordelier. A fanatical assassin, believing that he is serving God by murdering his king, consults a confessor on this matter of conscience: the confessor is guilty of sacrilege if he saves the life of the sovereign. This absurd and horrible contradiction is one of the unfortunate consequences of the continual conflict that has existed for so many centuries between ecclesiastical and civil laws. The citizen finds himself squeezed on hundreds of occasions between sacrilege and the crime of high treason; and the rules of good and evil are buried in a chaos from which they have not yet been extracted. The confession of one’s wrongdoings has been authorized in every age by almost every nation. People accused themselves in the mysteries of Orpheus, of Isis, of Ceres, of Samothrace. The Jews confessed their sins on the day of solemn expiation, and they continue this practice today. A penitent selects his confessor, who, in turn, becomes a penitent. And each of them alternately receives thirty-nine lashes with a whip while reciting three times the formula of confession, which only consists of thirteen words and which, consequently, does not say anything in particular. None of these confessions ever went into detail, none served as a pretext for those secret consultations so often made use of by fanatical penitents in order to have the right to sin with impunity – a pernicious practice that corrupts a salutary institution. Confession, which was the greatest brake on crime, has often become an encouragement to crime itself in times of sedition and turmoil; and it is probably for these reasons that so many Christian societies have abolished a holy practice that seemed to them to be as dangerous as it was useful. XVII On Counterfeit Money The crime of counterfeiting money is regarded as a second type of high treason, and rightly so: it is a betrayal of the state to rob all of the individuals of the state. People ask whether a merchant who imports gold bars from South America and converts them into true currency is guilty of high treason and whether he deserves death. In

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almost all kingdoms, the ultimate punishment is given for this crime; yet he has not robbed anyone. On the contrary, he is doing the state a service by bringing about a greater circulation of currency. But he has arrogated to himself the right of the sovereign and robs him by taking the small profit that the king makes on currencies. He has coined good money but his example holds out a temptation to others to coin poorly. Death is too much for this. I knew a jurist who wanted to sentence this guilty man, who was skilled and useful, to work in the king’s mint with his feet shackled. XVIII On Household Theft In countries where trivial household theft is punished by death, is this disproportionate punishment not very dangerous to society? Is it not an invitation to larceny even? For if it is the case that a master brings his servant to justice for an insignificant theft, and this unfortunate man loses his life for it, the master’s whole neighbourhood will be horrified. People will then think that nature and the law are in conflict, and that the law is thus worthless. What then is the result? Masters who have been robbed and do not want to cover themselves with shame will content themselves with discharging their servants, who will go steal elsewhere, and become accustomed to robbery. Since the death penalty is applied equally to petty theft and grand larceny, it is clear that they will try to steal a lot. They could even become murderers if they think that this is a way not to be caught. But if the punishment is proportionate to the crime, if the domestic thief is sentenced to public works, then his master will have no qualms in reporting him. There would be no more shame attached to such denunciations. Theft would become less common. All this proves that great truth, that a severe law sometimes produces crimes. XIX On Suicide The famous Duverger de Hauranne, abbé of Saint-Cyran,21 who is regarded as the founder of Port-Royal, wrote a treatise on suicide

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around the year 1608, which has now become one of the rarest books in Europe.* The Ten Commandments, says the author, order us not to kill. The murder of oneself seems to be no less a part of this precept than the murder of one’s neighbour. So if there may be circumstances in which it is permitted to kill one’s neighbour, there may also be circumstances in which it is permitted to kill oneself; one ought not to make an attempt on one’s own life without first listening to reason. Public authority, which represents God, may dispose of our lives. Human reason can also represent God’s reason: it is a ray of the eternal light. Saint-Cyran radically extends this argument, which can be taken as a pure sophism. But when he gets to the explanations and the details, it is more difficult for him to respond. One can kill oneself, he says, for the good of one’s prince, for the good of one’s country, for the good of one’s parents. In fact, it is not clear why people like Codrus or Curtius should be punished. There is no sovereign who would dare to punish the family of a man who gave up his life for him. What am I saying? Not a single one would dare deny him a reward. Saint Thomas said the same thing before Saint-Cyran did. But there is no need to appeal to Saint Thomas, to Saint Bonaventure, or to de Hauranne, to know that a man who dies for his country is worthy of our highest praises. The abbé of Saint-Cyran concluded that one may do to oneself what is good to do for another. The arguments in favour of suicide adduced by Plutarch, Seneca, Montaigne, and by a hundred other philosophers, are well known. It is an exhausted commonplace. I do not here propose to defend an action that the law prohibits; but neither the Old Testament nor the New has ever forbidden a man from taking his leave of life when he can no longer bear it. No Roman condemned the murder of oneself. On the contrary, this was the law of Marcus Antoninus, which was never repealed: ‘If your father or your brother, being accused of no crime, kills himself either to avoid pain, * It was printed in duo-decimo in Paris by Toussaint Dubray in 1609, with the King’s privilege; it should be in His Majesty’s library.

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or boredom with life, or despair, or madness, his will shall remain valid, or his heirs shall inherit according to the law of intestacy.’* Notwithstanding this humane law of our masters, we draw upon a rack and drive a stake through the body of a man who has chosen to die; we shame his memory; we dishonour his family as much as we can; we punish the son for having lost his father, and the widow for being deprived of her husband. We even confiscate the property of the deceased, which in effect amounts to stealing the inheritance of the living, to whom it belongs. This custom, like many others, is derived from our canon law, which deprives of burial those who die a voluntary death. The conclusion drawn from this is that no one can inherit from a man who is presumed to have no inheritance in Heaven. The canon law, under the heading of De Poenitentia, assures us that Judas committed a greater sin in hanging himself than by selling our Lord Jesus Christ. XX On a Type of Mutilation In the Digest one finds one of Hadrian’s laws that stipulates the death penalty for doctors who make men into eunuchs, whether by castration or by smashing the testicles.† This law also provided for the confiscation of the possessions of those who had themselves mutilated in this way. Origen might have been punished for submitting himself to this operation after having interpreted strictly the following passage from Saint Matthew: ‘There are those who have castrated themselves for the Kingdom of Heaven.’22 Things changed under successive emperors, who adopted Asiatic luxury, particularly in the Byzantine Empire of Constantinople, where some eunuchs became patriarchs and commanders of armies. Today in Rome, the custom is to castrate children in order to make them worthy of being musicians to the Pope, so much so that castrato and musico del papa [papal musician] have become synonymous. It was not so long ago that you could see in Naples, written in large letters * Leg. 1, Cod. lib. 9, tit. 50, De Bonis eorum qui sibi mortem, etc. † Leg. 4, para. 2, lib. 48, tit. 8, Ad legem Corneliam de sicariis.

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over the doors of certain barbers: Qui si castrano maravigliosamente i putti [Children artfully castrated here]. XXI On Confiscation Related to All of the Crimes Discussed A maxim accepted by the bar is: ‘Whoever forfeits life, forfeits his effects,’ a maxim still operative in countries where custom takes the place of law. Thus, as we have just noted, the children of those who voluntarily ended their sad days are made to die of hunger, as if they were the children of a murderer. Thus, in every case, an entire family is punished for the wrongdoing of a single man. Thus, when the father of a family has been sentenced to the galleys for life by an arbitrary sentence,* either for having harboured a preacher in his house, or for having listened to his sermon in some cave or desert, his wife and children are reduced to beg for their bread. The sort of jurisprudence, which consists of stealing food from orphans, and of giving to one man the property of another, was unknown throughout the whole period of the Roman Republic. Sylla introduced it with his proscriptions. It has to be admitted that a theft invented by Sylla was not an example to follow. Indeed, this law, which seems to have been dictated only by avarice and inhumanity, was not enforced by Caesar, by Trajan, nor by the Antonines, men whose names are still spoken with respect and affection by every nation. Lastly, under Justinian, confiscation only took place for the crime of lèse-majesté. It would seem that during the times of feudal anarchy, princes and landed lords, who were not very rich, endeavoured to augment their wealth by means of the convictions of their subjects, and that people wished to provide them with revenue derived from crime. Because their laws were arbitrary, and Roman jurisprudence was unknown, strange or cruel customs prevailed. But today, now that the power of sovereigns is founded upon immense and guaranteed riches, their treasury does not need to be swelled by the feeble * See the edict of 14 May, 1724, published at the request of Cardinal de Fleury, and reviewed by him.

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scraps of an unfortunate family, which usually are given away to the first one who asks for them. But should one citizen be permitted to get fat on the last drops of blood of another citizen? Confiscation is not admitted in areas where Roman law is established, except within the jurisdiction of the Toulouse parlement. It does not prevail in some of the provinces of customary law, such as Bourbonnais, Berry, Maine, Poitou, and Brittany, or at least real estate is exempted. It was once established at Calais, but the English abolished it when they took possession of the town. It is rather strange that the inhabitants of the capital live under laws that are more severe than those of small towns: this goes to show how true it is that systems of jurisprudence are often established by chance, irregularly, and lacking in uniformity, like the cottages of a village. Who would believe that in the year 1673, in France’s century of splendour, Omer Talon, the advocate-general, would have expressed himself in a full session of parlement on the subject of Miss Canillac in the following manner?* In chapter 13 of Deuteronomy God says: ‘if you come into a town where idolatry reigns, put everyone to the sword, without regard for age, sex, or status. Bring all the town’s spoils to the public squares, and set the town ablaze together with all its spoils, until all that remains of this place of abomination is a heap of ashes. In a word, make a sacrifice of it to the Lord, so that nothing remains in your hands of the properties of this anathema.’ Thus in the crime of lèse-majesté the king became the master of properties and the children were deprived it. When Naboth was prosecuted, quia maledixerat regi [because he had spoken ill of the king],23 King Ahab took possession of his effects. When David was informed that Miphibosheth had rebelled, he gave all his possessions to Ziba, who brought him the news: ‘tua sint omnia que fuerunt Miphibosheth’ [all that belonged to Mephibosheth is now yours].24

* Journal du Palais, 1: 144.

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It was a question of determining who would inherit the properties of Mademoiselle de Canillac – properties once confiscated from her father, given away by the king to a keeper of the royal mint, and then given by the guard of the royal mint to the testatrix. And it was with regard to this trial of a girl from Auvergne that an advocate-general referred to Ahab, king of a section of Palestine, who confiscated the vineyards of Naboth after having assassinated the owner with the sword of justice – an abominable act that has become proverbial for filling men with fear of usurpation. Surely, Naboth’s vineyard had nothing to do with the property of Mademoiselle de Canillac. The murder of Mephibosheth, King Saul’s grandson, son of Jonathan, and the friend and protector of David, and the confiscation of his goods, have precious little to do with the will of this lady. It is with this sort of pedantry, this folly of quoting things irrelevant to the subject at hand, this ignorance of the first principles of human nature, these ill-conceived and poorly applied prejudices, that jurisprudence has been treated by men with some reputation in their field. Readers are left to determine for themselves what is superfluous in what has been said to them here. XXII On Criminal Procedure and Some Alternative Forms of It If one day humane laws make milder some practices that are too severe in France, but without making crime easier, it may be suspected that reform will take place in the procedures enumerated in the articles of legislation in which the authors seem to have abandoned themselves to an overly zealous severity. In many respects, criminal legislation seems only to have been drafted with a view to the destruction of the accused. This is the only uniform law in the whole kingdom. Should it be as terrible for the guilty as it is favourable to the innocent? In England, a simple matter of wrongful imprisonment is remedied by the minister that ordered it; but in France, an innocent man who has been plunged into a dungeon, subjected to torture, has no hope for compensation, for no damages may be claimed against anyone; he remains forever disgraced in the eyes of society. The innocent disgraced! Why? Because his joints have been

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dislocated. He should inspire only pity and respect. The discovery of crimes requires severe methods; it is a war that human justice wages against malice; but even in war, there is such a thing as generosity and compassion. The brave man is compassionate; should the strong be barbaric? Let us briefly compare here the Roman criminal procedures with our own. With the Romans, witnesses were heard in public, in the presence of the accused, who could respond to them, ask them questions himself, or have a lawyer confront them. With us, everything is conducted in secret. A single judge, with his clerk, hears each witness, one after the other. This practice, which was established by Francis I, was sanctioned by the commissaries who drafted the regulations for Louis XIV in 1670. One single mistake was the cause of this. On reading the code De testibus, they thought that these words testes intrare judicii secretum [witnesses are to enter the judge’s chambers] meant that witnesses were examined in secret. But here the term secretum means the ‘judge’s chambers.’ If intrare secretum were intended to mean ‘to speak secretly’ it would not be Latin. It was a solecism that became a part of our jurisprudence. Those giving depositions are generally the dregs of the people, and behind closed doors the judge can make them say anything he wants. These witnesses are examined a second time, still in secret, and this is called confirmation. If upon their second confirmation, they retract something from their deposition, or make fundamental changes to it, they are punished as false witnesses. So when a simple but honest man, who is unable to express himself with clarity, remembers that he has said too much or too little, that he has misunderstood the judge or that the judge has misunderstood him, and he retracts what he said on a principle of justice, he is punished as a scoundrel, and often he is forced to bear false witness simply out of fear that he will be treated as a false witness. If he flees, he opens himself to conviction, whether his crime has been proved or not. In truth, some jurists have assured us that the contumacious should not be convicted if the crime has not been

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clearly proved; but other jurists, less enlightened but perhaps more widely followed, are of the contrary opinion. They have presumed to say that the flight of the accused is proof of the crime; that the contempt he demonstrates for justice in refusing to appear deserves the same punishment that he would receive if he had been convicted. Thus, depending on which sect of jurists the judge happens to follow, an innocent man will be either acquitted or convicted. In French jurisprudence, it is a great source of abuse that the reveries and errors – sometimes cruel – of disreputable men, who have passed their feelings off as laws, have indeed been taken as law. During the reign of Louis XIV, two ordonnances were issued that were uniform throughout the kingdom. In the first, which pertains to civil proceedings, judges are forbidden to deliver judgment by default in a civil suit, when the petition is not proved. But in the second, which regulates criminal proceedings, there is no mention that the accused will be dismissed absent evidence against him. Very strange indeed! The law says that a man who is being sued for a bit of money shall not be judged liable in absentia, except in cases where the existence of a debt has been verified. But if it is a question of life and death, there is an argument at the bar to find out whether the contumacious should be convicted when the crime has not been proved; and the law does not resolve this difficulty. When the accused has taken flight, you start by seizing and making an inventory of all of his possessions; you do not even wait until the proceedings are finished. You have no proof yet, you do not know whether he is innocent or guilty, and you start by imposing immense expenses on him! It is a penalty, you say, with which you punish his disobedience of the warrant issued against him. But does not the extreme severity of your criminal practice force him to commit such disobedience? A man is accused of a crime. You first shut him up in a frightful dungeon. You do not allow him to communicate with others. You shackle him with irons, as if you had already found him guilty. The witnesses who testify against him are heard in secret; he sees them only for a moment at the confrontation; before he has heard their testimony, he must state his objections to the witnesses and circumstantiate them;

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and at the same time he must name all the people who can support these objections. And he is not permitted to cross-examine them after their testimony has been read. If he demonstrates to the witnesses that they have exaggerated the facts, omitted others, or made a mistake in some of the details, the fear of torture will make them persist with their perjury. If circumstances adumbrated by the accused during interrogation are different from those reported by the witnesses, this is enough for ignorant or prejudiced judges to condemn an innocent man. What man is not horrified by this procedure? Where is the just man who can be sure he won’t succumb to it? O, judges! If you do not want an accused man who is innocent to take flight, then give him the means to defend himself. The law seems to oblige the magistrate to behave towards the accused more like an enemy than a judge. This judge has the power to order* the confrontation of the accused and the witness, or to omit it. How can such a necessary thing like confrontation be arbitrary? On this point custom seems contrary to the law, which is equivocal. Confrontation remains, but the judge does not always confront all the witnesses. He often omits those who do not appear to him to be making a substantial charge. Nonetheless, such a witness who has nothing to say against the accused during the inquiry phase can testify in his favour during the confrontation. The witness may have forgotten circumstances that are favourable to the accused; the judge himself may not have recognized the significance of those circumstances at first, and he may not have written them down. It is thus very important that all the witnesses be confronted with the accused, and that the confrontation not be arbitrary. If the matter pertains to a crime, the accused cannot have a lawyer; so he chooses to flee. This is what all the maxims of the bar advise him to do; but in fleeing, he can be convicted, whether the crime has been proved or not. So a man being sued for some money only has a judgment passed on him in absentia in cases where a debt is confirmed. But if his life is at stake, he may be sentenced in absentia when his

* ‘And, if need be, confront,’ says the Ordonnance of 1670, section 15, article 1.

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crime has not even been established. What? The law places more value on money than it does on life? O, judges! Consult the pious Antoninus and the good Trajan; they forbid convictions in absentia. What? Your laws allow an extortioner or a fraudulent bankrupt the benefit of counsel, and very often an honest man is deprived of this help! If a single occasion can be found in which an innocent would be justified in employing the services of a lawyer, isn’t it clear that any law depriving him of this is unjust? Lamoignon, the first president of the parlement, said of this law that, ‘the lawyer or counsel who has customarily been assigned to the accused is not a privilege granted by the ordonnances or by the laws: it is a liberty acquired by natural right, which is the most ancient of all human laws. Nature teaches every man that he must have recourse to the enlightenment of others when he does not have enough of his own to guide himself, and obtain help when he is not strong enough to defend himself. Our ordonnances have taken away so many advantages from the accused that it is quite right to preserve the few that remain to them, especially the benefit of counsel, which is the most important of them. If our procedures are compared with those of the Romans and other nations, one will find none more severe than those observed in France, particularly since the ordonnance of 1539.’ The procedures have become even more severe since the ordonnance of 1670. They would have been much milder if more of the commissaries had thought like Monsieur de Lamoignon. The parlement of Toulouse has quite an odd practice with regard to the evidence of witnesses. In other places, half-proofs are admitted, which basically are only doubts: for it is known that there is no such thing as a half-proof. But in Toulouse, quarters and eighths of proofs are admitted. There, for example, a bit of hearsay can be regarded as as a quarter-proof, while another bit of hearsay that is even vaguer can be treated as an eighth-proof, so that eight rumours, which are but the echo of unfounded rumblings, may become a complete proof. And it was more or less according to this principle that Jean Calas was sentenced to be broken on the wheel.25 Roman laws required proofs to be luce meridiana claiores [as clear as the midday light].

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XXIII An Idea for Reform The magistracy is so respectable that the only country in the world where it is venal vows to rid itself of this practice. One hopes that the jurist will succeed through his ability to render the justice he has defended with his vigilance, his eloquence, and his writings. With good work, perhaps, we would then see the birth of a regular and uniform system of jurisprudence. Will the same cases be forever decided differently in the provinces and the capital? Must the same man be right in Brittany and wrong in Languedoc? What am I saying? There are as many systems of jurisprudence as there are towns; and in the same parlement, the maxims of one chamber are not the maxims of another nearby.* What a prodigious disparity there is between the laws of the same kingdom! In Paris, a man who has resided in the city one year and one day is considered a citizen. In Franche-Comté, a free man, who has lived in a house held in mortmain for one year and one day becomes a slave; his relatives would not inherit what he has acquired elsewhere, and his children will be reduced to penury if they have spent a year away from the house in which their father died. The province is called ‘free,’ but what freedom! When boundaries between the civil authority and the ecclesiastical custom are to be determined, what endless disputes follow! Where are those boundaries? Who will reconcile the eternal contradictions of the treasury and the bench? Lastly, why, in certain countries, are reasons never given for arrest warrants? Is there some shame in giving a reason for one’s judgment? Why do those who make judgments in the name of their sovereign not present their death sentences to the sovereign before they are issued? Wherever one looks, one finds contradiction, severity, uncertainty, arbitrariness. We are seeking to perfect everything in this century; so let us seek to perfect the laws on which our lives and fortunes depend.

* On this, see president Bouhier.

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PART THREE Revisiting the Death Penalty

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Opinion of the Undersigned Members of the Committee Charged with the Reform of the Criminal System in Austrian Lombardy for Matters Pertaining to Capital Punishment (1792) The Criminal Committee, while drafting the Prolegomena to the new penal code that will be submitted to the approval of the sovereign, and which is based upon the precepts contained in § III of the Royal Dispatch of 13 August 1790, was obliged to list the number and the ranking of diverse punishments that will be prescribed by this code so as to assign them to diverse crimes with the correct proportion, and in doing so followed the praiseworthy example of the Austrian and Tuscan codes that the above-mentioned dispatch mentioned as a possible model. From the outset, the extraordinarily important question had to be confronted of whether to include the death penalty among these punishments. The opinions of the committee members were so divided that at first it seemed impossible to make any progress in the writing of the Penal Code without first humbling our differing opinions before the sovereign oracle of Your Majesty in order to wait for your decision; otherwise we shall be making as many codes as there were opinions among the members of the committee, which would be a great waste of time and effort. But once everyone agreed that capital punishment ought to be restricted to very few crimes, that its pure and simple execution ought to be regarded as the last resort, and that all those useless and ferocious treatments that accompanied the death penalty ought to be omitted, the committee was then able to proceed swiftly in its work in ascribing the ultimate punishment to the most serious crimes, and explained in the margins the opinions of those in favour of the death penalty and those in favour of the punishment that should replace it, which in our opinion should be forced labour of differing degrees of difficulty and commensurate

Part III

with the crimes themselves. The three of us were of the same opinion that the death penalty should not be prescribed except in the case of absolute necessity, and in the peaceful circumstances of our society, and with the regular administration of justice, we could not think of any case of absolute necessity other than the situation in which the accused, in plotting the subversion of the state, was capable, either through his external or internal relationships, of disturbing and endangering society even while imprisoned and closely watched. Other members expressed the opinion that another case should be added to this, namely, one in which the accused, above and beyond committing a crime worthy of capital punishment in and of itself, aggravates that crime with a murder, as with a highway robber who commits not only a violent theft of property but at the same time takes the life of his victim; other members, still, believed it necessary to extend the death penalty to a number of other crimes, all of them very serious. Everyone agreed, however, with the opinion that in the case of openly seditious activity, riots and gatherings of large crowds, the seditious that are resisting can be killed on the spot because this is not a legal administration of the death penalty, but rather the response to a general declaration of war. We owe it to ourselves and to the devotion to the public service that drives us, to expose candidly and succinctly the reasons that have brought us to this determination, support for which we found in the combined example of the Austrian and Tuscan codes that we have received as models. The first code, at article 20 of chapter II in Part I, clearly prescribes that the death penalty should have no place except in the cases of so-called summary justice – or rather rough justice – and it is clear from the context and the reasoning that such summary procedure is neither admitted nor admissible, save in the case of an imminent danger to the state, as in the case of sedition and riots. Chapter 51 of the second code abolishes the aforementioned punishment for any and all capital crimes, offering an explanation with the most plausible and sincere reasons; and it should be noted that both codes exclude the death penalty for those crimes that pertain to the offences – no matter how serious they may be – directly aimed at the person of the prince.

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Even leaving aside for a moment the authority that the aforementioned codes must inevitably have over our subordinate understanding, an authority for which we must have the greatest respect, following in the glorious footsteps of article 51 of the Tuscan Code which we praised above, and the tracks left by the most valiant men who have held the same opinion, we believe that the death penalty is not suitable except in the case we mentioned above. First, because it is not just, since it is not necessary; second, because it is less efficacious than perpetual punishment equipped with a good deal of continuous publicity; third, because it cannot be undone. To prove that it is not necessary, it is sufficient to note that for a punishment to be just it only needs to have a level of intensity sufficient to deter men from crimes. There is no one who, upon reflection, would choose the total and perpetual loss of one’s freedom, no matter how advantageous a crime can possibly be. Thus, the severity of the punishment of perpetual enslavement that replaces the death penalty has itself what it takes to deter even the most resolute mind. Furthermore it is well known that human nature prefers death to a perpetual and miserable enslavement. For the death penalty to be deemed necessary to serve as an example capable of discouraging the most serious crimes, it would be necessary to prove with facts, showing that where the death penalty has been most frequently employed, such crimes were far fewer in number than in places where the same death penalty was used less or not at all. Now, if we look with the impartial and peaceful eye of the legislator and at bygone times, as well as to those countries both near and far where the death penalty has been restricted to serious crimes, we will find exactly the contrary: where punishments have been more moderate, and for that very reason more strictly applied against delinquents (there being fewer reasons to let them go unpunished), crimes have become less frequent because the nature of man has slowly and surely been shaped by the moderation of the law. To prove that the death penalty is less efficacious than perpetual and public punishment, it is enough to note that it is not so much the severity of the punishment as its inevitability – provided that there is proportion between crimes and punishments – that is the most effec-

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tive means to restrain crimes, and that the strongest impediment to crimes is not the terrible and fleeting spectacle of the death of a wretch, but the long and repeated example of a man deprived of his liberty, who with his labour is paying back the society he offended. This effective and oft-repeated image that we ourselves might be reduced to a long and miserable condition in the event that we commit similar crimes is by far more powerful than the sight of death, which men always see from some vague distance and under the illusion that they might avoid it, and with a feeling of compassion for those who actually fall prey to it. Furthermore, with the death penalty every example for the nation presupposes a crime; with perpetual slavery, one sole crime provides many and lasting examples; and if we really mean to show concretely how powerful our laws are, the death penalty should be used very frequently, which presupposes a high frequency of crimes; so in order for this punishment to be efficacious, it is necessary that it does not make the impression on men that it should, that is, that it be effective and ineffective at the same time. The death penalty is also less efficacious for the reason that, if we all agree to reserve it for the greatest and most atrocious crimes, because it occurs instantaneously it cannot easily be made proportionate to the number and atrocity of those very crimes, for it is clear that no matter how barbaric a murderer may be, there is always the possibility that someone else may commit even more barbaric crimes and in greater number. To avoid the inconvenience of meting out the same punishment for more serious and numerous crimes, the death penalty ought to be amplified – in reality and not in appearance only – with more atrocious and sophisticated torments, and this would entail adding a legal example of cruelty to the rather illogical idea of punishing a homicide with another homicide. In conclusion, since it is irreparable, we believe that the death penalty is not at all suited to the inevitable imperfection of human proofs. And even if it were a just punishment, even if it were the most efficacious of all forms of punishment, in order to be correctly applied to a criminal, it would be necessary to demonstrate that he is indeed guilty in a way that excludes the possibility of the contrary. This arises manifestly from the irreparability of the death penalty; if these infallible

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proofs were indeed required to sentence a criminal, there would never be any possibility of carrying out the death penalty. Nor can we say that it would be wise to leave it on the books so that it may act as a threat, for if it is not practised, the greater efficacy of setting an example – which lies in the inevitability of punishment – is lost, and the power of the other penal laws is weakened at the same time. But the fact of the matter is that an examination of all the laws shows that we can see that the proofs sufficient to sentence a criminal to death have never been such that they could exclude the possibility of a contrary verdict. For neither the witnesses’ testimony, even if there were more than two, nor the wealth of circumstantial evidence, even if buttressed by the confession of the accused, are such that they fulfil the limits of moral certainty, which on closer inspection turns out to be nothing but a matter of probability. In almost all nations, it is not unheard of to find examples in which the apparently guilty were sentenced to death because they were shown to be so according to these supposedly incontrovertible proofs. Nor do we intend to attribute this to the incompetence, negligence, or bad will of the judges, but to the necessary imperfection of the law. Whenever these practically inevitable errors of the magistrates have remained under the scrutiny of the public, and whenever time has shown promptly the innocence of those who were supposed to be guilty, such a turn of events has been considered a public calamity, and the magistrates were the victims of public disdain for no fault of their own. If we are to be guided by the not-always-luminous light of moral certainty when arriving at a guilty verdict, there is no comparison between a punishment that may be rectified while the accused is alive and the death penalty that is irreparable after the accused has been killed, even if we are to assume that the punishment was intrinsically just and truly more efficacious than a punishment that lasts a lifetime – an assumption that we are far from making. One might say that even in the one case in which we admit that the death penalty may be employed, the accused is subjected to the same difficulty where the possibility of a contrary verdict is not excluded. But we must keep in mind that in our single case, we are caught between two contradictory necessities. On the one hand, there is the necessity to protect the state from the imminent danger of

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overthrow, and on the other, we must face the rather remote danger of killing an innocent. Between the two dangers, it is clear that we must confront the latter as a factual necessity in order to avoid the former, which at best could only serve the function of setting an example, that is, a purely juridical function. So in suggesting that we should suppress the death penalty, we are not motivated by an ill-conceived passion for the wicked – much less by the idea of curtailing the right of the sovereign legislator to prescribe it if in his Great Wisdom he were to think it necessary in order to repress crimes. If we thought for a moment that it might be necessary, we would consider it our precise duty to propose it and plea with him to stop following the sublime example set by our present August Sovereign who has abolished it for every situation in Tuscany, as we already dared to do so in the single case of the criminal who, although imprisoned, could nonetheless be influential in overthrowing the state; but even this ought to be left in the hands of His Sovereign’s decision after consulting with the supreme magistrate. Before we conclude our resigned sentiment, we have to take it upon ourselves to add as a corollary that the punishment we recommend in the place of the death penalty entails sufficient and repeated public punishment, and as such, one sole prison relegated to a remote corner of the province does not seem to be the most suitable to give a repeated and persuasive example to the public, which is what we consider necessary. We would maintain, thus, that it is by far better to set up prisons in several cities so as to make sure that the punishment is clear for all to see. Dividing and classifying types of life imprisonment would be useful in order to find comparable public works that may serve as punishment. And it would help to obviate the disorder that would result if those guilty of different crimes and condemned to sentences of differing severity were to be mixed together in a single place. This is not the place to develop these ideas further, and it was sufficient to note them here, for the council will take them under more careful consideration. We feel that it is sufficient to have touched upon them here, just enough to demonstrate that the punishment consisting of public works can be the most efficacious and useful for the purposes of any good criminal legislation – which is, first of all,

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the correction of the criminal whenever possible, as well as the provision of an example to innocents to deter them from the crime. And while the death penalty may be the most rapid way of getting rid of guilty people, it is not the most useful to deter crimes.1 Gallarati Scotti Beccaria Bonesana Risi

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Note on the Texts

The current translation of On Crimes and Punishments is based on the text of the Edizione nazionale delle opere di Cesare Beccaria, vol. I: Dei delitti e delle pene, ed. Gianni Francioni (Milan: Mediobanca, 1984). Ferdinando Facchinei’s Notes and Observations on the Book Entitled ‘On Crimes and Punishments’ (1765) are drawn from excerpts printed in Cesare Beccaria, Dei delitti e delle pene, ed. Franco Venturi (Turin: Einaudi, 1965), 164–77. Pietro and Alessandro Verri’s Response to a Writing Entitled ‘Notes and Observations on the book “On Crimes and Punishments”’ (1765) is also drawn from the excerpts printed in Beccaria, Dei delitti e delle pene, ed. Venturi, 178–86, but is supplemented with the opening pages of their response, translated from Cesare Beccaria, Dei delitti e delle pene (Harlem: s.n., 1766), 213–17, housed in the Robbins Collection, School of Law (Boalt Hall), University of California, Berkeley. Voltaire’s ‘Commentary on the book On Crimes and Punishments’ (1766) is translated from ‘Commentaire sur le livre Des délits et des peines,’ in Oeuvres complètes de Voltaire, ed. Louis Moland (Paris: Garnier, 1877–85), vol. 25: 539–77. Cesare Beccaria’s ‘Opinion of the Undersigned Members of the Committee Charged with the Reform of the Criminal System in Austrian Lombardy for Matters Pertaining to Capital Punishment’ (1792) is translated from ‘Voto degli infrascritti individui della giunta delegata per la riforma del sistema criminale nella lombardia austriaca riguardante la pena di morte’ in Cesare Beccaria, Opere, ed. Sergio Romagnoli (Florence: Sansoni, 1958), vol. 2, 735–41. Alberto Burgio’s introduction to this volume originally appeared as an essay in Vincenzo Ferrone and Gianni Francioni, eds., Cesare Beccaria: La pratica dei lumi (Florence: Leo S. Olschki, 1997).

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Notes

Foreword 1 Albert Camus, ‘Reflections on the Guillotine’ in Resistance, Rebellion, and Death, trans. Justin O’Brien (New York: Vintage), 197–8. 2 For a wealth of statistics pertaining to capital punishment, see the website of the Death Penalty Information Center: www.deathpenaltyinfo.org.

Preface All translations are mine, unless otherwise noted. 1 Quoted in Elie Halévy, The Growth of Philosophical Radicalism, trans. Mary Morris (Boston: Beacon Press, 1955), 21. 2 William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1796), vol. IV, 17ff. 3 James Burgh, Political Disquisitions; or, An enquiry into public errors, defects, and abuses (Philadelphia: Robert Bell and William Woodhouse, 1775), vol. III, 169. 4 Coleman Phillipson, Three Criminal Law Reformers: Beccaria, Bentham, Romilly (London: J.M. Dent & Sons, 1923), 100. 5 Cesare Beccaria to André Morellet, 26 January 1766, in Cesare Beccaria, Edizione nazionale delle opere di Cesare Beccaria, vol. IV, Carteggio, ed. Carlo Capra, Renato Pasta, and Francesca Pino Pongolini (Milan: Mediobanca, 1994), 220. 6 Cesare Beccaria, ‘Il Bibliomane’ and ‘Sul terremoto di Lisbona,’ in Cesare Beccaria, Ibid., vol. II, Scritti filosofici e letterari, ed. Luigi Firpo, Gianni Francioni, and Gianmarco Gaspari (Milan: Mediobanca, 1984), 237–41, 242–4.

N o t e s t o p a g e s x vi i – x x i i

7 Franco Venturi, Settecento riformatore, vol. I, Da Muratori a Beccaria (Turin: Einaudi, 1969), 675. 8 For Pietro Verri’s early opinion of Beccaria, see the letter dated 6 April 1762, in Carlo Casati, ed., Lettere e scritti inediti di Pietro e di Alessandro Verri (Milan: Galli, 1879), vol. I, esp. 153–5. 9 Quoted in Venturi, Settecento riformatore, vol. I, 679. 10 Cesare Beccaria to Ludwig Eugen of Württemberg, 3 August 1766, in Carteggio, 366. 11 See Pietro Verri’s aforementioned letter, 155. 12 See Venturi, Settecento riformatore, vol. I, 683–4. 13 Cesare Beccaria, Del disordine e de’ rimedi delle monete nello Stato di Milano nel 1762, in Cesare Beccaria, Opere, ed. Sergio Romagnoli (Florence: Sansoni, 1958), vol. I, 7. 14 Giuseppe Ricuperati, ‘The Enlightenment in Lombardy: Pietro Verri (1728–97), Cesare Beccaria (1735–94), Il Caffè,’ in Dino Carpanetto and Giuseppe Ricuperati, Italy in the Age of Reason, 1685–1789, trans. Caroline Higgitt (London: Longman, 1987), 261. 15 Gianni Francioni and Sergio Romagnoli, eds., Il Caffè, 1764–1766 (Turin: Bollati Boringhieri, 1998), vol. I, 12. 16 Montesquieu, Persian Letters, trans. C.J. Betts (London: Penguin, 1993), 89. 17 Francioni and Romagnoli, eds., Il Caffè, vol. I, 11 (italics original). 18 Ibid., 5. The periodical ran for two years, ceasing publication in May 1766 with the seventy-fourth issue. 19 Beccaria, ‘De’ fogli periodici,’ in Scritti filosofici e letterari, 49. 20 Beccaria to André Morellet, in Carteggio, 220–3. 21 Pietro Verri to Giambattista Biffi, 29 September 1762, cited in Carteggio, 73n24. 22 Beccaria to Morellet, 26 January 1766, in Carteggio, 225. 23 Beccaria to Biffi, August 1762, in Carteggio, 62. 24 See the third review of On Crimes and Punishments in the Gazette littéraire de l’Europe (March 1766), reprinted in Cesare Beccaria, Dei delitti e delle pene, ed. Franco Venturi (Turin: Einaudi, 1965), esp. 369–70. 25 Pietro Verri, ‘Orazione panegirica sulla giurisprudenza milanese,’ in Beccaria, Dei delitti e delle pene, ed. Venturi, 127–46. This essay remained unpublished in Verri’s lifetime. 26 See Luigi Firpo, ‘Le edizioni italiane del “Dei delitti e delle pene”’ in Cesare Beccaria, Edizione nazionale delle opere di Cesare Beccaria, vol. I, Dei delitti e delle pene, ed. Gianni Francioni (Milan: Mediobanca, 1984), 383. For a discussion of Pietro Verri’s role in producing the second draft, see Gianni Francioni, ‘Nota al testo,’ in the same volume, 250–2.

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N o t e s t o p a g e s x x ii i – x x v

27 Pietro Verri to his Milanese friends, 1 November 1765, in Beccaria, Dei delitti e delle pene, ed. Venturi, 122–3. Francioni argues, however, that Beccaria’s original manuscript did in fact contain its own internal logic, despite Verri’s suggestion of an unordered mass of paper; see ‘Nota al testo,’ in Beccaria, Dei delitti e delle pene, ed. Francioni, esp. 232–46. 28 For a discussion of the this early use of the term ‘socialist,’ see Franco Venturi, ‘‘Socialista’ e ‘socialismo’ nell’Italia del Settecento,’ Rivista storica italiana, vol. LXXV, no. 1 (March 1963), and Venturi, Italy and the Enlightenment: Studies in a Cosmopolitan Century, ed. Stuart Woolf, trans. Susan Corsi (London: Longman, 1972), 52–62. 29 Jean-Jacques Rousseau, The Social Contract and Other Later Political Writings, ed. and trans. Victor Gourevitch (Cambridge: Cambridge University Press, 1997), 60. 30 Ibid., 64. 31 Many years later Kant would attack Beccaria’s argument here as nothing more than ‘sophistry and juristic trickery.’ See Immanuel Kant, The Metaphysics of Morals, ed. and trans. Mary J. Gregor (Cambridge: Cambridge University Press, 1996), 108. And while Hegel saw Beccaria’s abolitionist efforts to have had ‘advantageous effects,’ he denied the plausibility of the contractualist reasoning that underpinned the argument. See G.W.F. Hegel, Elements of the Philosophy of Right, ed. Allen W. Wood, trans. H.B. Nisbet (Cambridge: Cambridge University Press, 1991), 126–7. 32 See the first review published in the Gazette littéraire de l’Europe (3 February 1765) in Beccaria, Dei delitti e delle pene, ed. Venturi, 310. 33 Such a Copernican revolution, as Norberto Bobbio argues borrowing the expression from Kant but applying to a different context, would come about when political relations were no longer considered ex parte principis, but ex parte civium. See Norberto Bobbio, The Age of Rights, trans. Allan Cameron (Cambridge: Polity Press, 1996), 102. In this regard, at least one early reader of On Crimes and Punishments who was interested in questions surrounding political legitimacy drew some rather radical conclusions that he believed followed from the logic of the Beccaria’s text. Charles Lee, a general in the Continental Army during the American Revolutionary War, interpreted Beccaria’s discussion of the death penalty not simply in terms of penal reform, but within the republican language of justifications for regicide: ‘The Marquis of Beccaria, in his incomparable treatise on Crimes and Punishments, is of opinion, that a community ought to punish with death such criminals only whose existence is absolutely pernicious to the community; if his reasoning is just, a criminal king is almost the only criminal on whom death ought to be inflicted, as his existence (if not always

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N o t e s t o p a g e s x xv – x x i x

34 35 36

37

38

39 40 41 42 43

absolutely destructive) is undoubtedly highly dangerous to society.’ See Charles Lee, Memoirs of the Life of the Late Charles Lee, Esq., ed. Edward Langworthy (New York: Thomas Allen, 1792), 78ff. For some historical discussion see John Richard Alden, General Charles Lee: Traitor or Patriot? (Baton Rouge: Louisiana State University Press, 1951), 42. Pietro Verri to Gian Rinaldo Carli, 25 January 1765, in Beccaria, Dei delitti e delle pene, ed. Venturi, 189. Beccaria to Morellet, 26 January 1766, in Carteggio, 221. The third edition had been released anonymously one year prior, in March 1765, with a falsified place of publication of Lausanne. For the fifth edition, the place of publication was falsified as Harlem. It carried, moreover, a new paragraph dedicated ‘To the Reader,’ another defence against criticism that was written by Pietro Verri with the help of his brother (again in Beccaria’s voice). Written in January 1765, contemporaneous with their lengthier rebuttal of Facchinei, it was intended for the third edition, but arrived too late to be included. (The ‘second’ and ‘fourth’ editions were counterfeits issued by other printers and without the approval of Beccaria or Pietro Verri.) For the complex publication history of On Crimes, see Firpo, ‘Le edizioni italiane del “Dei delitti e delle pene.”’ Giuseppe Aubert to Pietro Verri, 15 March 1766, in Beccaria, Dei delitti e delle pene, ed. Venturi, 205. Robert Bellarmine (1542–1621), an Italian cardinal and consultor to the Holy Office, was involved in the examination of Galileo before Church authorities. While somewhat sympathetic to Galileo’s views, he urged him nonetheless not to defend the Copernican theory, but to regard it instead as merely a hypothesis. Gian Rinaldo Carli to Paolo Frisi, 1 January 1765, in Beccaria, Dei delitti e delle pene, ed. Venturi, 186–7. Cf. Ricuperati, ‘The Enlightenment in Lombardy,’ 264. As Venturi notes (188n4), after reading Beccaria’s pamphlet on currency reform, ‘Carli was convinced that Beccaria’s true path lay in mathematics and physics, while his “fervid imagination” seemed dangerous if addressed towards “politics.”’ Cosimo Amidei to Cesare Beccaria, 21 April 1766, in Carteggio, 290–3. Jean d’Alembert to Paolo Frisi, 9 July 1765, Beccaria, Dei delitti e delle pene, ed. Venturi, 313. Beccaria to Morellet, 26 January 1766, in Carteggio, 220. For the text, see Beccaria, Dei delitti e delle pene, ed. Venturi, 258–300. Alessandro Passerin d’Entrèves, ‘Introduction,’ in Alessandro Manzoni, The Column of Infamy; Prefaced by Cesare Beccaria’s Of Crimes and Punishments, trans. Kenelm Foster and Jane Grigson, with an introduction by A.P. d’Entrèves (London: Oxford University Press, 1964), xi.

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N o t e s t o p a g e s x x x– x x x i i i

44 ‘Preface of the Translator,’ in An Essay on Crimes and Punishments, translated from the Italian; with a Commentary, attributed to Mons. De Voltaire, 4th ed. (London: F. Newberry, 1775), v–vi. 45 See, e.g., Cesare Beccaria, Of Crimes and Punishments, trans. Jane Grigson in Manzoni, The Column of Infamy; Prefaced by Cesare Beccaria’s Of Crimes and Punishments, 6–96. Grigson’s translation was subsequently employed in Cesare Beccaria, Of Crimes and Punishments, ed. Marvin Wolfgang (New York: Marsilio, 1996). See also Cesare Beccaria, On Crimes and Punishments, trans. Henry Paolucci (New York: Macmillan, 1963). 46 Franco Venturi, ed., Illuministi italiani, vol. III, Riformatori lombardi, piemontesi e toscani (Milan: Ricciardi, 1958), 26. 47 Cesare Beccaria, Edizione nazionale delle opere di Cesare Beccaria, vol. I, Dei delitti e delle pene, ed. Gianni Francioni (Milan: Mediobanca, 1984). 48 See Cesare Beccaria, On Crimes and Punishments, trans. David Young (Indianapolis: Hackett, 1986) and Cesare Beccaria, On Crimes and Punishments and Other Writings, ed. Richard Bellamy, trans. Richard Davies (Cambridge: Cambridge University Press, 1995). 49 Voltaire, ‘Fanaticism,’ in Philosophical Dictionary (New York: Penguin, 2004), 202–3. 50 Voltaire to Cesare Beccaria, 30 May 1768, in Beccaria, Dei delitti e delle pene, ed. Venturi, 450.

Introduction 1 On the history of On Crimes and Punishments in Italy, see Renato Pasta, ‘Il “Dei delitti e delle pene,” in Italia: appunti e riflessioni,’ Materiali per una storia della cultura giuridica, vol. XXV, no. 2 (1995), 313–39; Cesare Beccaria, Dei delitti e delle pene in Franco Venturi, ed., Illuministi italiani, vol. III, Riformatori lombardi, piemontesi e toscani (Milan and Naples: Ricciardi, 1958). 2 For historical background on the battle of the Accademia dei Pugni against the excesses in judicial discretion, see the noteworthy essay by Adriano Cavanna, ‘Giudici e leggi a Milano nell’età del Beccaria,’ in Cesare Beccaria tra Milano e l’Europa. Atti del Convegno di studi per il 250º anniversario della nascita (Milan, Rome, and Bari: Cariplo-Laterza, 1990), esp. 174; in the same volume, see also Gigliola di Renzo Villata, ‘Giuristi, cultura giuridica e idee di riforma nell’età di Beccaria,’ 225–78. 3 Franco Venturi, ‘Cesare Beccaria e le riforme giuridiche,’ in Mario Fubini, ed., La cultura illuministica in Italia (Turin: Edizioni RAI, 1957), 120–9. See also Mario A. Cattaneo, Illuminismo e legislazione (Milan: Edizioni di Comunità, 1966), esp. 48ff, 60ff, and Cattaneo, La filosofia della

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N o t e s t o p a g e s x x x ii i – x x x vi

4

5

6

7

8

pena nei secoli XVII e XVIII (Ferrara: Università di Ferrara, 1974); Serenella Armellini, ‘Le due “anime” dell’illuminismo giuridico e politico italiano,’ Rivista internazionale di filosofia del diritto, vol. LV, no. 4 (1978), 253–93; Luigi Ferrajoli, Diritto e ragione: Teoria del garantismo penale (Rome and Bari: Laterza, 1990), esp. 325ff. Jacques Godechot, ‘Beccaria et la France,’ in Atti del Convegno internazionale su Cesare Beccaria promosso dall’Accademia delle Scienze di Torino nel secondo centenario dell’opera ‘Dei delitti e delle pene’: Torino 4–6 ottobre 1964 (Turin: Accademia delle Scienze, 1966), 253ff. See ‘Osservazioni su i fedecommessi,’ in Il Caffè ossia brevi e varj discorsi distribuiti in foglj periodici, vol. I (Dal Giugno 1764 a tutto Maggio 1765), issue nos. X–XII, reprinted in Gianni Francioni and Sergio Romagnoli, eds., Il Caffè, 1764–1766 (Turin: Bollati Boringhieri, 1993), esp. 117, where the celebration of the ‘middle classes,’ which are seen as the principal source of the ‘most active men’ of society, is accompanied by a severe critique of the legal institutions (entails and primogeniture) that assured the hereditary transmission of the great estates. If the idler deserves poverty, that is, ‘those who are decidedly useless and constitute a drag on society,’ for Longo then, ‘all of the honours and riches’ should constitute a ‘reward for industriousness,’ such that even nobility ‘could be lost through idleness and acquired through virtue.’ See Giuseppe Zarone, Etica e politica nell’utilitarismo di Cesare Beccaria (Naples: Istituto italiano per gli studi storici, 1977), 40–1. On Beccaria’s utilitarianism, see H.L.A. Hart, ‘Beccaria and Bentham,’ in Atti del Convegno internazionale su Cesare Beccaria, 253–77, reprinted in H.L.A. Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford: Clarendon Press, 1982) 40–52; August Viglione, ‘The Idea of Utility in Beccaria’s Articles in “Il Caffè,”’ Rivista rosminiana di filosofia e cultura, vol. LXXIII, no. 1 (1979), 38–46; Gianni Francioni, ‘Beccaria filosofo utilitarista,’ in Cesare Beccaria tra Milano e l’Europa, 69–87. For further development of this idea, see my critical notes to Beccaria’s Dei delitti e delle pene (Milan: Feltrinelli, 1997), 127ff. On the notion of Rousseauian ‘utilitarianism,’ see Alberto Burgio, Eguaglianza Interesse Unanimità: La politica di Rousseau (Naples: Bibliopolis, 1989), 118ff, 254ff. Francis Hutcheson, An Inquiry into the Original of Our Ideas of Beauty and Virtue in Two Treatises. I. Concerning Beauty, Order, Harmony, Design. II. Concerning Moral Good and Evil (1725), II: iii, 5th ed. corrected (London: Ware, 1753), 185. See Robert Shackleton, ‘The Greatest Happiness of the

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No te s to p a g e s x x xv i – x l v

9 10 11 12 13 14 15

16 17

18 19 20 21 22 23

24 25

26

27

Greatest Number: The History of Bentham’s Phrase,’ Studies on Voltaire and the Eighteenth Century, vol. XC (1972), 1461–82. Claude-Adrien Helvétius, De l’esprit (1758), III: 30, in Oeuvres complètes de M. Helvétius (London: Bouillon, 1781), vol. II, 237. Ibid. II: 24, vol. I, 252. ‘Di Giustiniano e delle sue leggi,’ in Il Caffè, vol. I, issue no. XVI, reprinted in Il Caffè, 1764–1766, 188. ‘Osservazioni su i fedecomessi’ in Il Caffè, 1764–1766, 120–1. ‘Considerazioni sul lusso’ in Il Caffè, vol. I, issue no. XIV, reprinted in Il Caffè, 1764–1766, 157–88. Meditazioni sulla felicità (Milan: Galeazzi, [1763] 1766), 84–5. ‘Frammento sugli odori,’ in Opere di Cesare Beccaria, vol. II, Scritti filosofici e letterari, ed. Luigi Firpo, Gianni Francioni, and Gianmarco Gaspari (Milan: Mediobanca, 1984), 26. Elementi di economia pubblica, Part IV, in Opere, ed., Sergio Romagnoli (Florence: Sansoni, 1958), vol. I, 603. Cesare Beccaria, Dei delitti e delle pene, con una raccolta di lettere e documenti relativi alla nascita dell’opera e alla sua fortuna nell’Europa del Settecento, ed. Franco Venturi (Turin: Einaudi, 1965). Cf. § XXII. Elementi di economia pubblica, Part II, 494. Cf. § XXVI. Del piacere e del dolore ed altri scritti (Milan: Feltrinelli, 1964), 256. Ibid. 109. Alessandro Giulini, Emanuele Greppi, Francesco Novati, and Giovanni Seregni, eds., Carteggio di Pietro e di Alessandro Verri, 12 vols. (Milan: Cogliati, 1910–42), vol. II, 156–7. ‘Sulla interpretazione delle leggi,’ in Il Caffè, vol. II, issue no. XXVII, reprinted in Il Caffè, 1764–1766, 703. I have dealt with this at greater length in Alberto Burgio, ‘Tra diritto e politica: Note sul rapporto Beccaria – Montesquieu,’ Rivista di storia della filosofia, vol. LI, no. 3 (1996), 659–76. De l’esprit des lois, VI: 3, in Montesquieu, Oeuvres complètes, ed. Roger Caillois, 2 vols. (Paris: Gallimard, 1951), vol. II, 311. For an English translation, see Montesquieu, The Spirit of the Laws, ed. and trans. Anne Cohler, Basia Miller, and Harold Stone (Cambridge: Cambridge University Press, 1989), 76 § II. For more on this subject, see J. Graven, ‘Montesquieu et le droit penal,’ in B.S. Mirkine-Guetzévitch and H. Pujet, eds., La pensée politique et constitutionnelle de Montesquieu: Bicentenaire de l’‘Esprit des lois,’ 1748–1948

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N o t e s t o p a ge s xl v – l

28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51

52 53 54

(Paris: Recueil Sirey, 1952), 209–54; R. Derathé, ‘Le droit de punir chez Montesquieu, Beccaria et Voltaire,’ in Atti del Convegno internazionale su Cesare Beccaria, 85–100. For a more general perspective, see Giovanni Tarello, Le ideologie della codificazione nel secolo XVII. Corso di filosofia del diritto (Genoa: Cooperativa libraria universitaria, 1974), esp. chapter VI; and Tarello, ‘Montesquieu criminalista,’ Materiali per una storia della cultura giuridica, vol. V, Idee e atteggiamenti sulla repressione penale (1975), 201–60. Cf. De l’esprit des lois, VI: 9, 318; Spirit of the Laws, 82; On Crimes, § XLI. See Beccaria’s letter to André Morellet (26 January 1766) in Beccaria, Dei delitti e delle pene, ed. Venturi, 364. Cf. De l’esprit des lois, VI: 6, VI: 12; The Spirit of the Laws, 80, 84–6. De l’esprit des lois, VI: 16, 327; The Spirit of the Laws, 91–2. Ibid., XIX: 14, 565; The Spirit of the Laws, 316. Cf. De l’esprit des lois, VI: 17 and XXVI: 11; The Spirit of the Laws, 92–3, 504. Cf. De l’esprit des lois, XII: 4, 435; The Spirit of the Laws, 191. Cf. De l’esprit des lois, VI: 20; The Spirit of the Laws, 94. Cf. De l’esprit des lois, XII: 3; The Spirit of the Laws, 189. Cf. De l’esprit des lois, XXVI: 24; The Spirit of the Laws 517–18. Cf. De l’esprit des lois, XII: 11; The Spirit of the Laws, 197. Cf. De l’esprit des lois, XII: 5; The Spirit of the Laws, 192–3. Cf. De l’esprit des lois, XII: 7–10; The Spirit of the Laws, 194–7. De l’esprit des lois, XI: 6, 399; The Spirit of the Laws, 158. De l’esprit des lois, XXIX: 16, 880; The Spirit of the Laws, 615. De l’esprit des lois, XII: 4, 433; The Spirit of the Laws, 189. De l’esprit des lois, XII: 4, 435; The Spirit of the Laws, 191. Cf. De l’esprit des lois, VI: 18, 330; The Spirit of the Laws, 93. De l’esprit des lois, VI: 10, 319; The Spirit of the Laws, 83. Ibid. De l’esprit des lois VI: 18, 329; The Spirit of the Laws, 93. De l’esprit des lois, XI: 6; The Spirit of the Laws, 158–59. De l’esprit des lois, XI. 6, 404; The Spirit of the Laws, 163. See Léon Poliakov, Le mythe aryen: Essai sur les sources du racisme et des nationalisms (Paris: Calmann-Lévy, 1971); Alberto Burgio, Rousseau, la politica e la storia: Tra Montesquieu e Robespierre (Milan: Guerini, 1996), 112ff; and Alberto Burgio, L’invenzione delle razze: Studi sul razzismo e revisionismo storico (Rome: Manifestolibri, 1998), Part I. Cf. § XIV. § XXVIII. § XLI.

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Notes to pages l–3

55 56 57 58 59 60 61 62 63

§ XXI. ‘De’ fogli periodici’ (June 1765), in Opere di Cesare Beccaria, vol. II, 50. § VI. § XXIII. § II. § IV. § XIV. § IX. Jean-Jacques Rousseau, Emile, III, in Oeuvres completes (Paris: Gallimard, 1959–95), vol. IV (1969), 468. 64 Helvétius, De l’esprit, IX: 7, vol. IV, 297. 65 Opere, vol. I, 28.

Part I On Crimes and Punishments 1 The idea expressed in this epigraph, which Beccaria drew from the concluding sentence of Bacon’s essay ‘Of Negociating,’ was recognized as valid by the anonymous author of a brief note in the Gazette littéraire de l’Europe announcing the publication of the fifth Italian edition of Dei delitti e delle pene in 1766: ‘This eloquent philosopher knows all too well the human spirit and even more so the spirit of his age, the force of prejudices that attack him and the inadequacy of the arms he employs to flatter himself that his book will produce in the criminal jurisprudence of Europe the reform that he desires; he knows too well that new truths germinate slowly, that time and circumstances alone can bring about their maturation and hasten their development.’ The French text is reproduced in Cesare Beccaria, Dei delitti e delle pene, con una raccolta di lettere e documenti relativi alla nascita dell’opera e alla sua fortuna nell’Europa del Settecento, ed. Franco Venturi (Turin: Einaudi, 1965), 369–70. Beccaria had been engaged with Bacon’s works at least since August 1762, when he wrote in a letter to Giambattista Biffi that ‘I am entirely absorbed in copying some works of Bacon of Verulam, who not only ranks among the most sublime geniuses, but may also be considered the legislator of the intellect.’ For Beccaria’s letter, see Edizione Nazionale delle opere di Cesare Beccaria, vol. IV, Carteggio, ed. Carlo Capra, Renato Pasta, and Francesca Pino Pongolini (Milan: Mediobanca, 1994), 62–3. Some of Bacon’s passages that Beccaria copied into his notebooks are included in the Edizione Nazionale delle opere di Cesare Beccaria, vol. II, Scritti filosofici e letterari, ed. Luigi Firpo, Gianni Francioni, and Gianmarco Gaspari (Milan: Mediobanca, 1984), 459–71.

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Notes to pages 3–8

2 The Codex Justinianeus or Corpus Juris Civilis as it is formally known, was compiled at the behest of the Byzantine Emperor Justinian I (482–565), who ruled from 527 to 565. Although the Corpus fell largely into disuse with the demise of the Roman Empire, jurists in the Middle Ages – particularly at the University of Bologna – devoted considerable attention to Justinian’s Code. Their commentaries did much to revive Roman law and were ‘received’ – along with the Codex itself – by subsequent jurists and formed the basis of most of the so-called civil law systems in Western continental Europe and Latin America. 3 Benedikt Carpzov (1595–1666), a professor of law at the University of Leipzig, is generally considered the founder of German legal science and of Protestant ecclesiastical law. His Practica nova imperialis Saxonica rerum criminalium (1635) was widely influential in the development of German criminal law. 4 Giulio Claro or Julius Clarus (1525–1575), a jurist from Alessandria who studied at the universities of Pavia and Bologna, held a number public offices in the Duchy of Milan, including podesta of Cremona, and was nominated by Philip II to serve as regent of the Supreme Council of Italy in Madrid. His Practica criminalis, the fifth volume of his five-volume study Receptae sententiae (1568), dealt with criminal law and was important not only in Italy, but in Germany as well, where it influenced Carpzov. 5 Prospero Farinacci (1544–1618) studied law at the University of Pavia and was employed as a lawyer by popes Clement VIII and Paul V. His fourvolume work Praxis et theorica criminalis (1616), which dealt in part with the jurisprudence of torture, was influential in Italian and European penal practices until the end of the eighteenth century. 6 Beccaria’s allusion is to the Austrian government in Lombardy headed by the reformer Count Carlo Firmian, plenipotentiary of Empress Maria Theresa in Milan. 7 The ‘mistaken criticisms’ were those lodged by the monk Ferdinando Facchinei, whose ascerbic Note ed osservazioni sul libro intitolato ‘Dei delitti e delle pene’ was published in Venice in 1765 in reaction to the first edition of Dei delitti e delle pene. 8 The allusion is to Risposta ad uno scritto che s’intitola ‘Note ed osservazioni sul libro Dei delitti e delle pene’ (Lugano, 1765), which was written by Alessandro and Pietro Verri and published anonymously, as if by the same unknown author of On Crimes and Punishments itself. Some passages are included in the present volume.

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Notes to pages 9–43

9 As Gianni Francioni points out, this ‘passage alludes to the practices of espionage and secret accusations in the Republic of Venice’ and was even more sharply worded in the manuscript, until Beccaria deleted this clause that initially followed ‘secret accusations’: ‘and those mouths open to calumnies in some Italian cities.’ See Edizione Nazionale delle opere di Cesare Beccaria, vol. I, Dei delitti e delle pene, ed. by Gianni Francioni (Milan: Mediobanca, 1984) 60, 192. While the formulation of the manuscript echoed a line from Montesquieu, who wrote that ‘in Venice, a stone mouth is open for every informer,’ Beccaria’s position in this section diverges from that of the ‘immortal President.’ For while Montesquieu recognized that some ‘might say it is the mouth of tyranny,’ he nonetheless accepted secret accusations and magistracies such as those in Venice, which were ‘subject to no formalities,’ as necessary to safeguard the republic’s ruling aristocracy against threats from the nobility. See Montesquieu, The Spirit of the Laws, ed. and trans. Anne Cohler, Basia Miller, and Harold Stone (Cambridge: Cambridge University Press, 1989), 16, 54, 81–2. 10 Beccaria’s claim regarding the abolition of torture in Sweden is not entirely accurate. While torture was abolished for common crimes in 1734, it was not until Gustavus III came to power that it was definitively abolished in 1772. See Franco Venturi, ed., Illuministi italiani, vol. III, Riformatori lombardi, piemontesi e toscani (Milan: Riccardo Ricciardi, 1983), 58. For a broader discussion, see John H. Langbein, Torture and the Law of Proof: Europe and England in the Ancien Régime (Chicago: University of Chicago Press, 1977), esp. 64–9. 11 Upon taking the throne as king of Prussia in 1740, Frederick II (1712– 1786) abolished judicial torture, except in cases involving treason and the murder of many individuals. In 1754, he ordered an end to torture calling it ‘gruesome’ and ‘an uncertain means to discover the truth’; quoted in Langbein, Torture and the Law of Proof, 62. 12 I.e., petitio principii a logical fallacy in which the premise is either equivalent to, or dependent upon, the conclusion which is to be proved. 13 The problem of property was formulated differently in Beccaria’s manuscript and in the first edition of On Crimes and Punishments, qualifying the right of property at this point as ‘a terrible but perhaps necessary right.’ The change to ‘unnecessary’ was made in the third edition, although it was not registered as one of the additions to the work. See, Dei delitti e delle pene, ed. Francioni, 75, 160.

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Notes to pages 44–53

14 Lucius Cornelius Sulla (138–78 BC) was appointed Dictator of Rome in 82 BC, a position he held until 79 BC, when he stepped down after having carried out an extensive set of reforms. Although posterity has generally viewed Sulla’s reign as despotic and cruel, his far-reaching reforms have sometimes been seen in positive terms, despite the inhumanity of his actions. Thus, Montesquieu suggested that ‘in Sulla’s whole life, even in the midst of his acts of violence, a republican spirit was revealed. All his regulations, although tyrannically executed, always tended toward a certain form of republic. Sulla, a man of passion, violently led the Romans to liberty.’ Montesquieu, Considerations on the Causes of the Greatness of the Romans and Their Decline, trans. David Lowenthal (New York: Free Press, 1965), 123. That some participants in the Milanese Enlightenment may have shared something of Montesqueiu’s judgment in this regard is suggested moreover by the case of Pietro Verri, who chose Sulla as his own nickname among his consorts in the Accademia dei Pugni and did not shy away from recommending that political reforms be carried out by a dictator, as Alberto Burgio reminds us in his introduction to this volume. While some historians have seen the reference to Sulla in this passage as a veiled tribute Beccaria pays to his mentor, it may have come from the hand of Pietro Verri himself, who substantially reworked this paragraph of Beccaria’s text. See Gianni Francioni, ‘Nota al testo,’ in Dei delitti e delle pene, ed. Francioni, 276–81. 15 Elizabeth Petrovna (1709–1761), empress of Russia from 1741 to 1761, abolished the death penalty with two decrees in 1753 and 1754. But the esteem in which she was held by abolitionists and reformers such as Beccaria was not entirely merited, for as Venturi notes, ‘in reality, the death penalty was replaced by terribly cruel punishments which often resulted in the convict’s death. In fact, convicts were beaten with the knut, their nostrils were torn, and then their forehead and cheeks were branded with an iron. Many died and those who survived were usually deported to do forced labour in Siberia.’ See Venturi, Illuministi italiani, 73–4n1. 16 As Francioni’s analysis of the manuscript given to the printer reveals, a typographical error was introduced here in the first edition of On Crimes and Punisments and repeated in subsequent editions: ‘passions’ was substituted for ‘impressions.’ See Gianni Francioni, ‘Notizia sul manoscritto della seconda redazione del Dei delitti e delle pene (con una appendice di inediti di Pietro Verri relativi all’opera di Beccaria),’ Studi settecenteschi, nos. 7–8 (1985), 250 n55. That ‘impressions’ is what was intended here can be seen moreover in Beccaria’s manuscript; see Dei delitti e delle pene, ed. Francioni, 169.

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Notes to pages 54–100

17 In civil law systems, the period of prescription – or prescriptive period – is analogous to the statute of limitations in common law systems. 18 This is most likely an allusion to Rousseau, whose books The Social Contract and Emile, both published in May 1762, earned him the wrath of the political and ecclesiastical authorities in Geneva, Paris, and Rome. In June 1762, both books were burned in Geneva, and he was forced into exile. In August of the same year, the Archbishop of Paris followed both the Sorbonne and the Parisian parlement in condemning Emile and ordered it to be burned. On 6 October, 1763, Emile was condemned by the Pope and placed on the Index of Forbidden Books. Facchinei himself certainly took Beccaria’s discussion of education to be inspired by Rousseau’s Emile.

Part II Contemporary Reactions Ferdinando Facchinei 1 As Franco Venturi notes, the term ‘socialist’ seems to have appeared in the Italian language for the first time in Facchinei’s Notes and Observations, published in 1765. But Facchinei meant something different than what the word now connotes. A socialist for Facchinei was someone who believed that society was formed through a contract between free and equal men – a notion he firmly rejected. ‘It is absolutely certain,’ he asserted it in the opening pages of his attack on Beccaria’s On Crimes, ‘that on this earth there never has been a perfect society created by the express will and choice of free men, as our author imagines, and I challenge the socialists and anyone else to find me a single example in all the histories and annals of the world of societies created in that way.’ Quoted in Franco Venturi, Italy and the Enlightenment: Studies in a Cosmopolitan Century (London: Longman 1972), 56. For an annotated version of this chapter of Venturi’s book, see his earlier article, ‘“Socialista” e “socialismo” nell’Italia del Settecento,’ Rivista Storica Italiana, vol. LXXV, no. 1 (March 1963), 129–40. 2 Facchinei quotes only a fragment of the entire sentence. 3 Giuseppe Baretti (1719–1789) was the publisher of the periodical La frusta letteraria from 1763 to 1765. 4 As Franco Venturi notes, Facchinei probably drew his arguments from Giovanni Vincenzo Patuzzi, De futuro impiorum statu libri tres (Venetiis: Remondiniana, 1764), a book that deals with some of the theological

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arguments then circulating in discussions of penal law. See Cesare Beccaria, Dei delitti e delle pene, con una raccolta di lettere e documenti relativi alla nascita dell’opera e alla sua fortuna nell’Europa del Settecento, ed. Franco Venturi (Turin: Einaudi, 1965), 176n3. Venturi, however, does not venture a guess as to the identity of that ‘modern Protestant writer’ discussed by Patuzzi. On the basis of some preliminary research Alberto Burgio has been able to advance the following hypothesis in a personal communication: Patuzzi’s De futuro impiorum, which is devoted to a refutation of the heretical positions of those who oppose the Catholic doctrine regarding the ‘truth, quality and eternity of the punisments of hell,’ and which in the first chapter of book 3 takes aim at those ‘who have denied the eternity of the punishments of hell,’ discusses on page 195 the work of Ferdinandus Hefreich Lichtscheid (rectius : Ferdinand Helfreich Lichtscheid). Lichtscheid, according to Patuzzi’s comment, not only failed in demonstrating the thesis formulated by Origen concerning the non-eternal nature of hell and of punishment, but on the contrary had to admit the existence of purgatory (‘medium quemdam animarum statum post mortem admisit’). Since these are the terms used by Facchinei himself, it seems likely that Facchinei is referring specifically to Lichtscheid. A problem in identification arises, however, given that there is no text of Lichtscheid’s with a title analogous to the one proffered by Facchinei. And this no doubt justifies Venturi’s caution in his editorial note. However, we may make a few observations in this regard. First, we cannot be certain that Facchinei intended to cite a title with any precision; it may be that he aimed more simply at a synthetic rendering of the thesis advanced by the author under consideration. Second, one must take into account the fact that there exist many eighteenth-century collections of Lichtscheid’s works, and it is possible that one of them contains a piece with the title in question. What is clear, in any case, is that a quick perusal of Lichtscheid’s works reveals that some of them deal with themes close to those dear to the followers of Origen, such as grace, punishment, sin, hell, duration and the eternity of punishments. To cite just one example, he is the author of a work on the forgiveness of sins, in which it is likely that the theological problem of punishment is discussed in connection with the Catholic doctrine of the eternity of hell. See Ferdinand Helfreich Lichtscheid, Die Macht Sünde zu vergeben (Cölln an der Spree: U. Liebpert, [c. 1705]).

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Notes to pages 101–22

Pietro and Alessandro Verri 1 Ludovico Antonio Muratori (1672–1750), a historian and Roman Catholic priest, was himself a key figure in the early Italian Enlightenment. His twentyfive-volume compilation Rerum italicarum scriptores (1723–51), which collected chronicles frm the sixth to the sixteenth centuries, was important in the historiography of the Italian middle ages. Marquis Scipione Maffei (1675–1755), who was known and celebrated in the enlightened circles of Paris and London for his work as a dramatist and as one of the founders of the influential literary journal Giornale de’ letterati d’Italia, published in fact a range of works devoted to political, economic, and religious matters. 2 Maurice (c. 539–602) was Byzantine emperor from 582 to 602; Anastasius I (c. 430–518) was Roman emperor of the East from 491 to 518; Isaac I Comnenus (c. 1005–1061) was Byzantine emperor from 1057 to 1059. 3 The Verri brothers paraphrase here. 4 Marcus Porcius Cato (234 BC–149). 5 Like Ludovico Antonio Muratori, the reformist historian with whom he corresponded, Maffei engaged in the heated debate that erupted in the 1740s surrounding magic, superstition, and witchcraft. Such beliefs, he argued, were compatible neither with reason nor with any sort of enlightened Christianity. And when subjected to rational and historical scrutiny, such prejudices were easily ‘dispelled’ or ‘annihilated,’ as Maffei’s titles on this controversy variously suggest: Arte magica dileguata (Verona, 1749), Arte magica annichilata (Verona, 1754), and Riflessioni sopra l’Arte magica annichilata (Venice, 1755).

Voltaire 1 2 3 4 5

Theodosius II, emperor 408–50. Gratian, emperor 367–83. Valentinian II, emperor 375–92, junior half-brother of Gratian. As the Lord liveth. Marie Madeleine d’Aubray, marquise de Brinvilliers (c. 1630–76); she conspired with her lover, Godin de Sainte-Croix, an army captain, to poison her father and two brothers in order to secure the family fortune and to end interference in her adulterous relationship. The crime became known as the ‘Poison Affair.’ 6 Montesquieu, The Spirit of the Laws (Cambridge: Cambridge University Press, 1989), Book 12, chapter 4, 190.

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7 Virgil, Eclogues, III: 12. ‘From Jove [the Muse] began.’ 8 Seneca. 9 Leonora Dori Galigai, wife of the Marshal d’Ancre Concino Concini, was accused of sorcery and burned at the stake in 1617. 10 Horace, Satires, I: 1.108: ‘There is a moderate measure in things, there are definite limits.’ Satires and Epistles of Horace, trans. Smith Palmer Voie (Chicago: University of Chicago Press, 2002), 37. 11 Horace, Satires, I: 3.119: ‘So that what should be whipped is not fanatically flayed.’ Ibid. 50. 12 Matthew 18: 17.13. 13 Deuteronomy 13. 14 Michael Servetus (1511–1553), a physician who served the Archbishop of Vienne, France, gained notoriety for his anti-Trinitarian theological writings and beliefs. He was condemned as a heretic by both Protestants and Roman Catholics for his theology, not for his theory on the circulation of blood, which was relatively unknown at the time. Placed on trial in Lyon, he escaped to Geneva, only to be captured, put on trial again, and burned. Calvin played a significant role in his prosecution and urged that he be put to death. 15 Paul Ferry (1591–1669). 16 A famous psychiatric hospital in Paris. 17 I.e., the ‘beheader.’ 18 Jacques Clément (1567–89), assassin of Henry III of France; Jean Châtel (1575–1594) would-be assassin of Henry IV; and François Ravaillac (1578–1610), assassin of Henry IV. 19 Famiano Strada (1572–1649), author of De bello belgico (The History of the Low Country Wars). 20 A Franciscan friar, so-called for the cord worn around their waist. 21 Jean Duvergier de Hauranne (1581–1643), also known as Saint-Cyran, was one of the founders of Jansenism. 22 Matthew 19: 12.4. 23 Kings III, 21: 10. 24 Samuel 16: 4.12. 25 Jean Calas, French Calvinist (1698–1762), executed at Toulouse.

Part III Revisiting the Death Penalty 1 Francesco Gallarati Scotti, a councillor in the ministry of justice, was one of Beccaria’s pupils when he taught economics at the Scuole Palatine in

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Milan. Paolo Risi, an associate of the Accademia dei Trasformati and friend of Parini, authored Animadversiones ad criminalem jurisprudentiam pertinentes (Milan: Galeazzi, 1766), a work that took up themes similar to those found in Beccaria’s On Crimes and Punishments. Beccaria, Gallarati Scotti, and Risi held the minority position in the commission. The majority of the members argued to retain the death penalty for serious crimes, based on what they believed to be its deterrent effect. See Carlo Capra, La Lombardia austriaca nell’età delle riforme, 1706–1796 (Turin: UTET, 1987), 460–2.

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Bibliography

Beccaria’s Writings Cesare Beccaria’s works are collected in the multivolume Edizione nazionale delle opere di Cesare Beccaria (Milan: Mediobanca, 1984–2005), vols. I–II, IV–XII (vol. III is in preparation). Volume I contains Dei delitti e delle pene, together with Beccaria’s manuscript and extensive commentaries by Gianni Francioni and Luigi Firpo. Some of the writings to appear in the projected third volume of the Edizione nazionale are collected in Cesare Beccaria, Opere, ed. Sergio Romagnoli (Florence: Sansoni, 1958), 2 vols.

Further Reading Anglani, Bartolo. 2004. Il dissotto delle carte: Sociabilità, sentimenti e politica tra i Verri e Beccaria. Milan: Franco Angeli. Armani, Giuseppe. 1989. ‘Beccaria e la riforma penale.’ In Giuseppe Armani et al., Il Secolo dei lumi e delle riforme. Milan: Teti Editore. Beccaria, Cesare. 1965. Dei delitti e delle pene, con una raccolta di lettere e documenti relativi alla nascita dell’opera e alla sua fortuna nell’Europa del Settecento, ed. Franco Venturi. Turin: Einaudi. Beccaria, Cesare. 1991. Dei delitti e delle pene, ed. Alberto Burgio. Milan: Feltrinelli. Beirne, Piers. 1991. ‘Inventing Criminology: The “Science of Man” in Cesare Beccaria’s Dei Delitti e Delle Pene (1764).’ Criminology 29(4): 777–820. Bobbio, Norberto. 1996. The Age of Rights. Trans. Allan Cameron. Cambridge: Polity Press.

B i b l i o gr a p h y

Burgio, Alberto. 1996. ‘Tra diritto e politica: Note sul rapporto BeccariaMontesquieu.’ Rivista di storia della filosofia 60(3): 659–76. Capra, Carlo. 1987. La Lombardia austriaca nell’età delle riforme, 1706–1796. Turin: UTET. Capra, Caro. 2002. I progressi della ragione: Vita di Pietro Verri. Bologna: Il Mulino. Carpanetto, Dino, and Giuseppe Ricuperati. 1987. Italy in the Age of Reason, 1685–1789. London: Longman. Casati, Carlo. 1879–81. Lettere e scritti inediti di Pietro e di Alessandro Verri, vols. I–IV. Milan: Giuseppe Galli. Corpaci, Francesco. 1965. Ideologie e politica in Cesare Beccaria. Milan: Giuffrè. Draper, Anthony J. 2000. ‘Cesare Beccaria’s influence on English discussions of punishment, 1764–1789.’ History of European Ideas 26(3–4): 177–99. Ferrajoli, Luigi. 1989. Diritto e ragione: Teoria del garantismo penale. Bari: Laterza. Ferrone, Vincenzo, and Gianni Francioni, eds. 2000. Cesare Beccaria. La pratica dei Lumi. Florence: Leo S. Olschki. Francioni, Gianni, and Sergio Romagnoli, eds. 1998. Il Caffè, 1764–1766, 2 vols. Turin: Bollati Boringhieri. Gay, Peter. 1988. Voltaire’s Politics: The Poet as Realist, 2nd ed. New Haven: Yale University Press. Hanlon, Gregory. 2000. Early Modern Italy, 1550–1800. New York: St Martin’s Press. Hart, H.L.A. 1982. ‘Bentham and Beccaria.’ In Essays on Bentham: Studies in Jurisprudence and Political Theory. Oxford: Clarendon. Jenkins, Philip. 1984. ‘Varieties of Enlightenment Criminology.’ British Journal of Criminology 24(2): 112–30. Klang, Daniel M. 1984. ‘Reform and Enlightenment in Eighteenth-Century Lombardy.’ Canadian Journal of History / Annales Canadiennes d’Histoire 19(1): 39–70. Langbein, John H. 1976. Torture and the Law of Proof. Chicago: University of Chicago Press. Maddalena, Aldo, Ettore Rotelli, and Gennaro Barbarisi, eds. 1982. Economia, istituzioni, cultura in Lombardia nell’età di Maria Teresa, vol. II: Cultura e società. Bologna: Il Mulino. Maestro, Marcello. 1973. Cesare Beccaria and the Origins of Penal Reform. Philadelphia: Temple University Press. Maestro, Marcello. 1942. Voltaire and Beccaria as Reformers of Criminal Law. New York: Columbia University Press.

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Marino, John A., ed. 2002. Early Modern Italy, 1550–1796. Oxford: Oxford University Press. Mondolfo, Rodolfo. 1960. Cesare Beccaria. Milan: Nuova Accademia. Pasta, Renato. 1995. ‘Il Dei delitti e delle pene in Italia: Appunti e riflessioni.’ Materiali per una storia della cultura giuridica 25(2): 313–39. Peters, Edward. 1996. Torture, expanded ed. Philadelphia: University of Pennsylvania Press. Phillipson, Coleman. 1970. Three Criminal Law Reformers: Beccaria, Bentham, Romilly. Montclair, NJ: Patterson Smith. Porret, Michel, ed. 1997. Beccaria et la culture juridique des lumières. Geneva: Librairie Droz. Romagnoli, Sergio, and Gian Domenico Pisapia, eds. 1990. Cesare Beccaria tra Milano e l’Europa. Bari: Cariplo-Laterza. Shackleton, Robert. 1988. ‘The Greatest Happiness of the Greatest Number: The History of Bentham’s Phrase.’ In Robert Shackleton, Essays on Montesquieu and on the Enlightenment, ed. David Gilson and Martin Smith. Oxford: Voltaire Foundation. Spurlin, Paul M. 1963. ‘Beccaria’s Essay on Crimes and Punishments in Eighteenth-Century America.’ Studies on Voltaire and the Eighteenth Century 27(4): 1489–1504. Torcellan, Gianfranco. 1964. ‘Cesare Beccaria a Venezia.’ Rivista storica italiana 76(3): 720–48. Venturi, Franco. 1963. ‘“Socialista” e “socialismo” nell’Italia del Settecento.’ Rivista Storica Italiana 75(1): 129–40. Venturi, Franco. 1964. ‘L’immagine della giustizia.’ Rivista storica italiana 76(3): 707–19. Venturi, Franco. 1969. Settecento riformatore, vol. I: Da Muratori a Beccaria. Turin: Einaudi. Venturi, Franco. 1971. Utopia and Reform in the Enlightenment. Cambridge: Cambridge University Press. Venturi, Franco. 1972. Italy and the Enlightenment: Studies in a Cosmopolitan Century. Trans. Susan Corsi. London: Longman. Venturi, Franco. 1987. Settecento riformatore, vol. V: L’Italia dei lumi. Turin: Einaudi. Wheelock, James T. S. 1972. ‘The Anonymity of the Milanese “Caffè” 1764– 1766.’ Eighteenth-Century Studies 5(4): 527–44. Woolf, Stuart. 1979. A History of Italy, 1700–1860: The Social Constraints of Political Change. London: Routledge.

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Young, David. 1983. ‘Cesare Beccaria: Utilitarian or Retributivist?’ Journal of Criminal Justice 11(4): 317–26. Young, David. 1984. ‘“Let Us Content Ourselves with Praising the Work While Drawing a Veil Over Its Principles”: Eighteenth-Century Reactions to Beccaria’s On Crimes and Punishments.’ Justice Quarterly 1(2): 155–69. Young, David. 1986. ‘Property and Punishment in the Eighteenth Century: Beccaria and His Critics.’ American Journal of Jurisprudence 31: 121–35. Young, David. 1989. ‘Alternative Ideologies of Law: Traditionalists and Reformers in Eighteenth-Century Lombardy.’ McGill Law Journal 43(2): 264–85. Zarone, Giuseppe. 1971. Etica e politica nell’utilitarismo di Cesare Beccaria. Naples: Istituto italiano per gli studi storici. Zorzi, Renzo. 1996. Cesare Beccaria: Il dramma della giustizia. Milan: Mondadori.

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Index

Accademia dei Pugni, xvii, xxii– xxiii, xxxvii, xl, 167n2, 174n14 Accademia dei Trasformati, xvii, 179n accomplices, 32, 37, 73–4, 131–2 accusations, secret, 30–2, 98, 173n9 acquittal, 14, 32, 36, 58, 63, 147 Adams, John, xxix Addison, Joseph, xix adultery, 63 d’Alembert, Jean-Baptiste, xxi, xxvii–xxviii, xxxviii Amidei, Cosimo, xxvii, xxxi, 166n39 Anastasius I (Roman emperor), 177n2 Arouet, François Marie. See Voltaire asylum, places of, 72 Atticus, Titus Pomponius, xvii, xxi Aubert, Giuseppe, xxii, xxvi, 166n37 d’Aubigny, 137–8 d’Aubray, Marie Madeleine (marquise de Brinvilliers), 121, 177n5 Augustine, Saint, 131 Austrian Succession, War of (1740– 48), xx

d’Avrigny, 138n Bacon, Francis, xxi, 3, 171n1 banishment, 45–6, 74 Beccaria, Cesare: Del disordine e de’ rimedi delle monete nello Stato di Milano nel 1762, lii; Elementi di economia pubblica, xxxvii, xxxix Beccaria, Giulia, xxi Bentham, Jeremy, xv betrayal, 17, 73–4, 80 Biffi, Giambattista, xviii, xxi, 171n1 Blackstone, William, xv; Commentaries on the Laws of England, xv Buffon, Comte George Louis Le Clerc, xxi Burgh, James, xv; Political Disquisitions, xv Caffè, Il, xix, xxxiv, xxxvii, xli, xliv, l Calvin, John (Jehan), 124–5, 178n14 Calas, Jean, xxxiii, 149, 178n25 Camus, Albert, ix Capet, Hugh, 134 capital punishment. See death penalty

Index

despotism, xxxiv, xliii, xliv, 15, 23–4, 38, 42–3, 49, 56–7, 62, 67; enlightened, xviii, xxv detention, 58–61 deterrence, 26, 37, 52–3, 55, 60, 72, 97, 107, 155, 159, 179n dictatorship, xviii, xliv, 49, 174n14 Diderot, Denis, xxi, xxviii, xxx, xxxviii, xli disgrace, public, xlix, 43–5, 47, 65, 68–9, 145 duels, 24–5

Carli, Gian Rinaldo, xviii, xxv, xxvi, 166n38 Carpzov, Benedikt, 5, 172nn3 and 4 Catherine the Great, xxviii–xxix, xli, 129 Charles I (Duke of Lorraine), 134 Charles II, 135 Chaudron, Michelle, 127–8 Claro (Clarus), Giulio (Julius), 5, 172n4 clemency, 84–5, 110–11 Clément, Jacques, 137, 178n18 Collegio Farnesiano, Parma, xvi commerce, xx, xl, 9, 25, 35, 66–7, 69–71, 91, 106 Concini, Concino (Marshal d’Ancre), 123, 178n9 Condillac, abbé Etienne Bonnot de, xxi, xxxiv confessions, 37–8, 58, 76, 90, 137– 9, 157; and torture, 32–3, 36, 38, 75, 89, 98, 131 confiscations, 46, 142–5 conscience, 118, 139 Constantine, Emperor, 118 contracts, 66, 69, 71 corporal punishment, xxlvii, xlviii, 41, 43–4 Corpus Juris Civilis, 172n2 cruelty, 10, 25–6, 28, 49–51, 55, 100, 109, 123, 132, 156

education, 48, 54, 64, 84, 175n18 Encyclopédie, xviii, xxvii entails, 168n5 equality, xxxiii–lii passim, 20, 24, 35, 42, 47 evidence, 27–30, 37–8, 40, 46, 58, 60, 62, 76, 128, 149, 157 exile, 37, 59, 61 Facchinei, Ferdinando, xxiii–xxvii, xxxii, 89–101, 161, 166n36, 172n7, 175nn18, 1, 2, 4, 176n fanaticism, xvii, xxvi, xxxii, 19, 25–6, 44, 48, 51, 54, 82, 91, 137, 139, 178n11 Farinacci, Prospero, 5, 172n5 fear, x, 22, 25, 27n, 33–4, 37, 42, 47–50, 53, 65, 67, 70, 74, 78, 80, 83, 85, 95–6, 148 feelings, 30, 39–40, 47, 70–1, 76–7, 79, 84, 147 Firmian, Count Carlo, xxi, 172n6 Firpo, Luigi, xxii forgery, 71 Francioni, Gianni, vii, xxx, 161, 165, 173n9, 174n16

death penalty, x, xi, xv, xxiv, xxix, xxxi, xxxiii, xxxviii, xlvi, 26, 51–7, 68, 92–8, 100, 106–11, 114–16, 128–30, 132–4, 140, 142, 150, 153–9 debtors, 37, 69–71, 147–8 Descartes, xvii

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Index

honour, xxxiv, xlvii, xlix, l, 21–4, 42, 44, 83, 130n, 168n5 human nature, xxxiv, xxxvi, 7, 9, 38, 52, 61, 77, 92, 105, 145, 155 humanity, xxvi, xxxii, xxxviii, 5, 7, 10, 17–18, 51–2, 59–60, 63, 65, 71n, 72, 78, 81–2, 84, 90, 92, 98, 106, 108, 128–9, 132 Hume, David, xxi Hutcheson, Francis, xxi, xxxvi

Frederick II (the Great of Prussia), 173n11 Frisi, Paolo, xvii, xxvii Galigai, Leonora Dori, 178n9 Galilei, Galileo, xxv, 166n37 Gallarati Scotti, Francesco, 159, 178–9n garantismo, xxxiii, xxxiv Gassendi, Pierre, xvii Gazette littéraire de l’Europe, xxii, xxiv, xxvii, 164n24, 165n32, 171n1 Giannone, Pietro, xxv Godin, Jean-Baptiste (de SainteCroix), 177n5 Gratian, Emperor, 116, 177nn2 and 3 Grimm, Melchior, xxviii, xxx Guicciardini, Francesco, 136

Idacio, 116 Imbonati, Count Giuseppe Maria, xvii immunity, 74 inequality, xli, xlii, 30, 42, 67 infamy, 32–4, 59 infanticide, 65 informers, 30–1, 74, 127, 135–6, 173n9 interests, li, 12, 14, 16–18, 20, 25, 30–1, 39, 47–8, 72, 77, 80, 83, 85 interrogations, 75–6 Isaac I Comnenus (Byzantine emperor), 177n2 Ithacus (Ithacius), 116

Habsburgs, xx, xxviii hangman, 56 happiness, xv, xix, xx, xxxiv, xxxv– xxxvii, 6, 9, 12, 30, 46–7, 54–5, 57, 66–8, 73, 78–9, 82–5, 96 Hauranne, Jean Duvergier de (Saint-Cyran), 140–1, 178n21 Hegel, Georg Wilhelm Friedrich, xlii, 165n31 Helvétius, Claude-Adrien, xxi, xxxiv, xxxvi, li–lii; De l’esprit, xxi, xxxvi Henry III, 178n18 Henry IV, 136, 138, 178n18 Henry VII, Emperor, 129, 134 heresy, xxv, xlvi, 102, 105, 117 Hobbes, Thomas, xxi, xxxi, li, 7 d’Holbach, Baron Paul-Heinrich Dietrich, xxviii, xli

Jefferson, Thomas, xxix Jesuits, xvi, 124, 135, 137–8 Jews, 118–20, 125, 139 Jousse, Daniel, xxix judgment, forms of, 28–30 judges, xlviii, 13, 30, 58–9, 63, 71, 121, 129–30, 133–4, 148–9, 157 jurisconsults, 27n, 127 jurisprudence, xvi, xxii, xxiii, xxxi, xlv, 27n, 113–14, 120, 143–4, 146–7, 150, 171n1, 172n5 jurors, xlix

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Index

Montesquieu, Baron Charles Louis Secondat de, xix, xliv–l, 10–11, 31, 122, 173n9, 174n14, 177n6; Persian Letters, xix, xxi; The Spirit of the Laws, xxvii, xlv–l, 130n; Considerations on the Causes of the Greatness of the Romans and Their Decline, 174n14 Morellet, André, xvii, xxvii–xxx, xxxix Morin, Simon, 126–7 Muratori, Lodovico Antonio, 102, 109, 177nn1 and 5 murder, ix, xxiv, 22, 55, 68, 78, 97, 128, 141, 154, 156 Muyart de Vouglans, PierreFrançois, xxix

justice, x, xviii, xxxvi, xxxviii, xl, xlvi, l, 7, 12–13, 20, 22, 30, 92, 98, 115, 121, 133, 146, 154 Justinian I, 172n2 Kant, Immanuel, 165nn31 and 33 Lambertenghi, Luigi, xviii, xxiii Lamoignon, 149 legitimacy, xxv, xxxiv, xxxv, l, 165n33 Leopold II of Habsburg (Duke of Tuscany), xxix lese-majesty (lèse-majesté), xlvi, 21, 109, 134, 143–4 lex talionis, 119 Lichtscheid, Ferdinandus (Ferdinand) Hefreich (Helfreich), 176n Locke, John, xxi, xxxi, xxxiv Longo, Alfonso, xviii, xxxiii, xxxvii, xli, 168n5 Louis IX, 119 Louis XI, 136 Louis XII, 136 Louis XIII, 136 Louis XIV, 146–7 luxury, 17, 67–8

natural law, 6, 133 Newton, xvii nobility, xliv, xlix, l, 42, 120, 168n5, 173n9 Oates, Titus, 134–5 oaths, 14, 36, 39 obligation, xxxvi, xxxvii, 7, 13, 70 opinion, xx, xxvi, xlv, xlvi, li, 5, 10, 14, 15, 22–3, 26, 29–30, 33, 44– 5, 52, 58–9, 66, 68, 72, 77, 82, 109, 117–18 ordeals, 34

Machiavelli, Niccolò, xxv, xliv Maffei, Scipione, 102, 111, 177nn1 and 5 magistrates, xix, 10, 12–13, 15, 22– 3, 25, 31, 40, 49, 56, 58, 83, 118, 130, 135, 138, 157–8 Maria Theresa, Empress, xx, 172n6 Maurice (Byzantine emperor), 177n2 Maximus, 115–16

pain, xxxiv, 19–20, 32–6, 38, 40, 44, 54, 64, 75, 79, 128, 141 Pallavicini, Count Gian Luca, xxi pardons, 84, 107 Parini, Giuseppe, xvii, 179n Passerin d’Entrèves, Alessandro, xxix

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Index

Racine, xvii reason, xv, xxvii, xxxii, li, 5, 10, 13, 16, 25, 33, 43, 52, 56, 62, 72, 77, 105, 111, 124–5, 127, 141 religion, 6–7, 25, 39, 55–6, 63–4, 91, 96, 98, 100–1, 102–5, 111, 115, 119, 123–5, 128 republic, 32, 47–9, 130n; of letters, xix, xxvi revolution, li, 24, 52, 72, 89, 97, 107, 118–19 rewards, 83 Richard III, 134 Richelieu, Cardinal, 136–7 Risi, Paolo, 159, 179n Romulus, 90 Rousseau, Jean-Jacques, xxi, xxiv, xxxi, xxxiv, xxxv, xxxix, xli, li–lii, 97, 99, 168n7, 175n18; Emile, li, 175n18; Julie; ou, la nouvelle Héloïse, xxi; The Social Contract, xxi, xxiv, xxv, 175n18 Rush, Benjamin, xxix

pederasty, 64 penal servitude, 43, 53–4, 69 periodicals, xx Phillipson, Coleman, xvi philosophers, xix, xxxiv, xliii, 5, 9, 15, 38, 49, 57, 83, 85, 94, 99, 105, 171n1 philosophy, xxi, xxxiv, xlv, 21, 35, 77, 81–2, 105 pleasure, xxxvii, 19–20, 31, 40, 45, 55, 65, 79, 94–5, 105 Poison Affair, 121, 177n5 police, 25 politics, xxxiii passim, 17, 43, 45, 71, 73, 166n38 Pope, Alexander, xix popes: Celestine III, 120; Clement VIII, 138, 172n5; Gregory XV, 138; Innocent III, 138; Innocent IV, 120; Paul IV, 138; Pius IV 138 prescriptions, 60–2 primogeniture, 168n5 printing press, 9, 16 Priscillian, 115–16 proof, 28–30, 38, 58, 63, 89–90, 103, 147, 149, 157 property, xxxix, xlvii, xlviii, 21–2, 41, 43, 61, 65–6, 70, 121, 142–4, 154, 173n13 proportionality, xxix, xlvi, 17–19, 26, 46, 50, 60–1, 86, 140, 153, 155–6 public good, xviii, xxxvii, 11–13, 17–18, 21, 32, 56, 60, 62, 66, 71, 74, 77–8, 85, 98, 108, 128 punish, right to, 11–12

sacrifices, human, 57 sciences, xix, 16, 57, 71n, 80–3 Secco-Comneno, Pietro, xviii secrecy, 31 sects, 6, 118–19, 133 sedition, xxv, 71n, 98, 105, 139, 154 Servetus, Michael, 124, 178n14 Seven Years’ War (1756–63), xx social contract, xxiv, xxx, xxxv, xxxvii, 12–13, 48, 93, 165n31, 175n1 social pact, xxx, xxxv, xxxvii, lii, 6, 7, 9, 11, 13, 16, 18, 32, 42, 43, 56, 59, 71n, 77, 81, 97, 98, 105 socialism, xxiv, 92–3, 165n28 sodomy, 63

Quirites, 90

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Index

Venturi, Franco, xxx, xxxiii, xxxviii, 165n28, 166n38, 174n15, 175nn1 and 4, 176n4 Verri, Alessandro, xviii, xxv, xxvii, xxviii, xxxii, xxxvii, xl, xlv, 102– 12 Verri, Pietro, xvii–xviii, xix, xxi– xxiii, xxv, xxxii, xxxvii, xl–xli, xliii, xlv, 102–12, 164nn8, 25, and 26, 165n27, 166n36, 172n8, 174n14, 177n3; Discorso sulla felicità, xliii; Economia politica, xliii; Meditazioni sulla felicità (Meditations on Happiness), xix, xxii–xxiii, xxxvii violence, 43, 54, 65, 86, 128, 133, 174n14 virtue, xviii, xxxxiv, 6–7, 13, 15, 17, 18–19, 22–3, 32–3, 35, 48–9, 57, 73, 79, 83–5, 91, 106, 110, 125, 130n, 168n5 Visconti, Giuseppe, di Saliceto, xviii Voltaire, xvii, xxvii, xxxii, xxxviii, 113–50

Spectator, The, xix Steele, Richard, xix Strada, Famiano, 137, 178n19 suicide, 65–8, 140–2 Sulla, Lucius Cornelius, xviii, 49, 174n14 superstitions, xxvi, 17, 127, 133, 177 Sweden, 35 Swift, Jonathan, xix theft, xxxix, xlvi, xlvii, 22, 43, 69, 121, 133–4, 140, 143, 154 Theodosius, 109, 115–16 Theodosius II, 123, 177n1 Thou, François-Auguste de, 134, 136 Tocqueville, Alexis de, l tolerance, 17, 110, 119 torture, xii, xvi, xxxiii, xlvi, 5, 10, 26, 32–8, 50–1, 63, 75, 89–92, 100, 114–15, 117, 119, 121–2, 127, 128, 131–2, 134, 145, 148, 172n5, 173nn10 and 11 trade, 67, 71, 91 trials, 38, 40, 60, 76 tyranny, xxxviii, xlviii, xlix, li, 16, 18, 21, 25–6, 31, 41, 46, 65, 68, 72, 82, 115, 173n9

War of Austrian Succession, xx witchcraft, 27, 111–12, 127–8, 177n5 witnesses, xlvi, 27–8, 37, 63, 90, 135, 146–9, 157

utility, xxxiv–xxxviii, 6, 17, 20, 61, 74, 77–8, 109 Valentinian II, Emperor, 116, 177n3

1 90