论犯罪与刑罚(英文版)

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1、 . . 论犯罪与刑罚Of Crimes and PunishmentsCesare Bonesana, Marchese Beccaria, 1738-1794Originally published in Italian in 1764Dei delitti e delle pene. English: An essay on crimes and punishments. Written by the Marquis Beccaria, of Milan. With a commentary attributed to Monsieur de Voltaire. Philadelphia

2、: Printed and sold by R. Bell, next door to St. Pauls Church, in Third-Street. MDCCL#VIII. 1778Translated from the French by Edward D. Ingraham. Second American edition. Philadelphia (No. 175, Chesnut St.): Published by Philip H. Nicklin: A. Walker, printer, 24, Arch St., 1819.Table of Contents Intr

3、oduction. Chapter 01 Of the Origin of Punishments. Chapter 02 Of the right to punish. Chapter 03 Consequences of the foregoing Principles. Chapter 04 Of the Interpretation of Laws. Chapter 05 Of the Obscurity of Laws. Chapter 06 Of the Proportion between Crimes and Punishments. Chapter 07 Of estimat

4、ing the Degree of Crimes. Chapter 08 Of the Division of Crimes. Chapter 09 Of Honour. Chapter 10 Of Duelling. Chapter 11 Of crimes which disturb the Public Tranquillity. Chapter 12 Of the Intent of Punishments. Chapter 13 Of the Credibility of Witnesses. Chapter 14 Of Evidence and the Proofs of a Cr

5、ime, and of the Form of Judgment. Chapter 15 Of secret Accusations. Chapter 16 Of Torture. Chapter 17 Of pecuniary Punishments. Chapter 18 Of Oaths. Chapter 19 Of the Advantage of immediate Punishment. Chapter 20 Of Acts of violence. Chapter 21 Of the Punishment of the Nobles. Chapter 22 Of Robbery.

6、 Chapter 23 Of Infamy considered as a Punishment. Chapter 24 Of Idleness. Chapter 25 Of Banishment and Confiscation. Chapter 26 Of the Spirit of Family in States. Chapter 27 Of the Mildness of Punishments. Chapter 28 Of the Punishment of Death. Chapter 29 Of imprisonment. Chapter 30 Of Prosecution a

7、nd Prescription. Chapter 31 Of Crimes of difficult Proof. Chapter 32 Of Suicide. Chapter 33 Of Smuggling. Chapter 34 Of bankrupts Chapter 35 Of Sanctuaries. Chapter 36 Of Rewards for apprehending or killing Criminals. Chapter 37 Of Attempts, Accomplices, and Pardon. Chapter 38 Of suggestive Interrog

8、ations. Chapter 39 Of a particular Kind of Crimes. Chapter 40 Of false Ideas of Utility. Chapter 41 Of the Means of preventing Crimes. Chapter 42 Of the Sciences. Chapter 43 Of Magistrates. Chapter 44 Of rewards. Chapter 45 Of Education. Chapter 46 Of Pardons. Chapter 47 Conclusion. Introduction.In

9、every human society, there is an effort continually tending to confer on one part the height of power and happiness, and to reduce the other to the extreme of weakness and misery. The intent of good laws is to oppose this effort, and to diffuse their influence universally and equally. But men genera

10、lly abandoned the care of their most important concerns to the uncertain prudence and discretion of those whose interest it is to reject the best and wisest institutions; and it is not till they have been led into a thousand mistakes in matters the most essential to their lives and liberties, and ar

11、e weary of suffering, that they can be induced to apply a remedy to the evils with which they are oppressed. It is then they begin to conceive and acknowledge the most palpable truths which, from their very simplicity, commonly escape vulgar minds, incapable of analysing objects, accustomed to recei

12、ve impressions, without distinction, and to be determined rather by the opinions of others than by the result of their own examination.If we look into history we shall find that laws, which are, or ought to be, conventions between men in a state of freedom. have been, for the most part the work of t

13、he passions of a few, or the consequences of a fortuitous or temporary necessity; not dictated by a cool examiner of human nature, who knew how to collect in one point the actions of a multitude, and had this only end in view, the greatest happiness of the greatest number. Happy are those few nation

14、s who have not waited till the slow succession of human vicissitudes should, from the extremity of evil, produce a transition to good; but by prudent laws have facilitated the progress from one to the other! And how great are the obligations due from mankind to that philosopher, who, from the obscur

15、ity of his closet, had the courage to scatter among the multitude the seeds of useful truths, so long unfruitful!The art of printing has diffused the knowledge of those philosophical truths, by which the relations between sovereigns and their subjects, and between nations are discovered. By this kno

16、wledge commerce is animated, and there has sprung up a spirit of emulation and industry, worthy of rational beings. These are the produce of this enlightened age; but the cruelty of punishments, and the irregularity of proceedings in criminal cases, so principal a part of the legislation, and so muc

17、h neglected throughout Europe, has hardly ever been called in question. Efforts, accumulated through many centuries, have never yet been exposed by ascending to general principles; nor has the force of acknowledged truths been ever opposed to the unbounded licentiousness of ill-directed power, which

18、 has continually produced so many authorised examples of the most unfeeling barbarity. Surely, the groans of the weak, sacrificed to the cruel ignorance and indolence of the powerful, the barbarous torments lavished, and multiplied with useless severity, for crimes either not proved, or in their nat

19、ure impossible, the filth and horrors of a prison, increased by the most cruel tormentor of the miserable, uncertainty, ought to have roused the attention of those whose business is to direct the opinions of mankind.The immortal Montesquieu has but slightly touched on this subject. Truth, which is e

20、ternally the same, has obliged me to follow the steps of that great man; but the studious part of mankind, for whom I write, will easily distinguish the superstructure from the foundation. I shall be happy if, with him, I can obtain the secret thanks of the obscure and peaceful disciples of reason a

21、nd philosophy, and excite that tender emotion in which sensible minds sympathise with him who pleads the cause of humanity.Of the Origin of Punishments.Laws are the conditions under which men, naturally independent, united themselves in society. Weary of living in a continual state of war, and of en

22、joying a liberty which became of little value, from the uncertainty of its duration, they sacrificed one part of it, to enjoy the rest in peace and security. The sum of all these portions of the liberty of each individual constituted the sovereignty of a nation and was deposited in the hands of the

23、sovereign, as the lawful administrator. But it was not sufficient only to establish this deposit; it was also necessary to defend it from the usurpation of each individual, who will always endeavour to take away from the mass, not only his own portion, but to encroach on that of others. Some motives

24、 therefore, that strike the senses were necessary to prevent the despotism of each individual from plunging society into its former chaos. Such motives are the punishments established, against the infractors of the laws. I say that motives of this kind are necessary; because experience shows, that t

25、he multitude adopt no established principle of conduct; and because society is prevented from approaching to that dissolution, (to which, as well as all other parts of the physical and moral world, it naturally tends,) only by motives that are the immediate objects of sense, and which being continua

26、lly presented to the mind, are sufficient to counterbalance the effects of the passions of the individual which oppose the general good. Neither the power of eloquence nor the sublimest truths are sufficient to restrain, for any length of time, those passions which are excited by the lively impressi

27、ons of present objects. Of the right to punish.Every punishment which does not arise from absolute necessity, says the great Montesquieu, is tyrannical. A proposition which may be made more general thus: every act of authority of one man over another, for which there is not an absolute necessity, is

28、 tyrannical. It is upon this then that the sovereigns right to punish crimes is founded; that is, upon the necessity of defending the public liberty, entrusted to his care, from the usurpation of individuals; and punishments are just in proportion, as the liberty, preserved by the sovereign, is sacr

29、ed and valuable.Let us consult the human heart, and there we shall find the foundation of the sovereigns right to punish; for no advantage in moral policy can be lasting which is not founded on the indelible sentiments of the heart of man. Whatever law deviates from this principle will always meet w

30、ith a resistance which will destroy it in the end; for the smallest force continually applied will overcome the most violent motion communicated to bodies.No man ever gave up his liberty merely for the good of the public. Such a chimera exists only in romances. Every individual wishes, if possible,

31、to be exempt from the compacts that bind the rest of mankind.The multiplication of mankind, though slow, being too great, for the means which the earth, in its natural state, offered to satisfy necessities which every day became more numerous, obliged men to separate again, and form new societies. T

32、hese naturally opposed the first, and a state of war was transferred from individuals to nations.Thus it was necessity that forced men to give up apart of their liberty. It is certain, then, that every individual would choose to put into the public stock the smallest portion possible, as much only a

33、s was sufficient to engage others to defend it. The aggregate of these, the smallest portions possible, forms the right of punishing; all that extends beyond this, is abuse, not justice.Observe that by justice I understand nothing more than that bond which is necessary to keep the interest of indivi

34、duals united, without which men would return to their original state of barbarity. All punishments which exceed the necessity of preserving this bond are in their nature unjust. We should be cautious how we associate with the word justice an idea of any thing real, such as a physical power, or a bei

35、ng that actually exists. I do not, by any means, speak of the justice of God, which is of another kind, and refers immediately to rewards and punishments in a life to come.Consequences of the foregoing Principles.The laws only can determine the punishment of crimes; and the authority of making penal

36、 laws can only reside with the legislator, who represents the whole society united by the social compact. No magistrate then, (as he is one of the society,) can, with justice, inflict on any other member of the same society punishment that is not ordained by the laws. But as a punishment, increased

37、beyond the degree fixed by the law, is the just punishment with the addition of another, it follows that no magistrate, even under a pretence of zeal, or the public good, should increase the punishment already determined by the laws.If every individual be bound to society, society is equally bound t

38、o him, by a contract which from its nature equally binds both parties. This obligation, which descends from the throne to the cottage, and equally binds the highest and lowest of mankind, signifies nothing more than that it is the interest of all, that conventions, which are useful to the greatest n

39、umber, should be punctually observed. The violation of this compact by any individual is an introduction to anarchy.The sovereign, who represents the society itself, can only make general laws to bind the members; but it belongs not to him to judge whether any individual has violated the social comp

40、act, or incurred the punishment in consequence. For in this case there are two parties, one represented by the sovereign, who insists upon the violation of the contract, and the other is the person accused who denies it. It is necessary then that there should be a third person to decide this contest

41、; that is to say, a judge, or magistrate, from whose determination there should be no appeal; and this determination should consist of a simple affirmation or negation of fact.If it can only be proved, that the severity of punishments, though not immediately contrary to the public good, or to the en

42、d for which they were intended, viz. to prevent crimes, be useless, then such severity would be contrary to those beneficent virtues, which are the consequence of enlightened reason, which instructs the sovereign to wish rather to govern men in a state of freedom and happiness than of slavery. It wo

43、uld also be contrary to justice and the social compact.Of the Interpretation of Laws.Judges, in criminal cases, have no right to interpret the penal laws, because they are not legislators. They have not received the laws from our ancestors as a domestic tradition, or as the will of a testator, which

44、 his heirs and executors are to obey; but they receive them from a society actually existing, or from the sovereign, its representative. Even the authority of the laws is not founded on any pretended obligation, or ancient convention; which must be null, as it cannot bind those who did not exist at

45、the time of its institution; and unjust, as it would reduce men in the ages following, to a herd of brutes, without any power of judging or acting. The laws receive their force and authority from an oath of fidelity, either tacit or expressed, which living subjects have sworn to their sovereign, in

46、order to restrain the intestine fermentation of the private interest of individuals. From hence springs their true and natural authority. Who then is their lawful interpreter? The sovereign, that is, the representative of society, and not the judge, whose office is only to examine if a man have or h

47、ave not committed an action contrary to the laws.In every criminal cause the judge should reason syllogistically. The major should be the general law; the minor, the conformity of the action, or its opposition to the laws; the conclusion, liberty, or punishment. If the judge be obliged by the imperf

48、ection of the laws, or chooses to make any other or more syllogisms than this, it will be an introduction to uncertainty.There is nothing more dangerous than the common axiom, the spirit of the laws is to be considered. To adopt it is to give way to the torrent of opinions. This may seem a paradox t

49、o vulgar minds, which are more strongly affected by the smallest disorder before their eyes, than by the most pernicious though remote consequences produced by one false principle adopted by a nation.Our knowledge is in proportion to the number of our ideas. The more complex these are, the greater i

50、s the variety of positions in which they may be considered. Every man hath his own particular point of view, and, at different times, sees the same objects in very different lights. The spirit of the laws will then be the result of the good or bad logic of the judge; and this will depend on his good

51、 or bad digestion, on the violence of his passions, on the rank or condition. of the accused, or on his connections with the judge, and on all those little circumstances which change the appearance of objects in the fluctuating mind of man. Hence we see the fate of a delinquent changed many times in

52、 passing through the different courts of judicature, and his life and liberty victims to the false ideas or ill humour of the judge, who mistakes the vague result of his own confused reasoning for the just interpretation of the laws. We see the same crimes punished in a different manner at different

53、 times in the same tribunals, the consequence of not having consulted the constant and invariable voice of the laws, but the erring instability of arbitrary interpretation.The disorders that may arise from a rigorous observance of the letter of penal laws are not to be compared with those produced b

54、y the interpretation of them. The first are temporary inconveniences which will oblige the legislature to correct the letter of the law, the want of preciseness and uncertainty of which has occasioned these disorders ; and this will put a stop to the fatal liberty of explaining, the source of arbitr

55、ary and venal declamations. When the code of laws is once fixed, it should be observed in the literal sense, and nothing more is left to the judge than to determine whether an action be or be not conformable to the written law. When the rule of right, which ought to direct the actions of the philoso

56、pher, as well as the ignorant, is a matter of controversy, not of fact, the people are slaves to the magistrates. The despotism of this multitude of tyrants is more insupportable the less the distance is between the oppressor and the oppressed, more fatal than that of one, for the tyranny of many is

57、 not to be shaken off but by having recourse to that of one alone. It is more cruel, as it meets with more opposition, and the cruelty of a tyrant is not in proportion to his strength, but to the obstacles that oppose him.These are the means by which security of person and property is best obtained,

58、 which is just, as it is the purpose of uniting in society; and it is useful as each person may calculate exactly the inconveniences attending every crime. By these means, subjects will acquire a spirit of independence and liberty, however it may appear to those who dare to call the weakness of subm

59、itting blindly to their capricious and interested opinions by the sacred name of virtue.These principles will displease those who have made it a rule with themselves to transmit to their inferiors the tyranny they suffer from their superiors. I should have every thing to fear if tyrants were to read

60、 my book; but tyrants never read.Of the Obscurity of Laws.If the power of interpreting laws be an evil, obscurity in them must be another, as the former is the consequence of the latter. This evil will be still greater if the laws be written in a language unknown to the people; who, being ignorant o

61、f the consequences of their own actions, become necessarily dependent on a few, who are interpreters of the laws, which, instead of being public and general, are thus rendered private and particular. What must we think of mankind when we reflect, that such is the established custom of the greatest p

62、art of our polished and enlightened Europe? Crimes will be less frequent in proportion as the code of laws is more universally read and understood; for there is no doubt but that the eloquence of the passions is greatly assisted by the ignorance and uncertainty of punishments.Hence it follows, that,

63、 without written laws, no society will ever acquire a fixed form of government, in which the power is vested in the whole, and not in any part of the society; and in which the laws are not to be altered but by the will of the whole, nor corrupted by the force of private interest. Experience and reason show us that the probability of human traditions diminishes in proportion as they are distant from. their sources. How then can laws resis