CHAPTER XVI.

CAPITAL PUNISHMENT.

This useless prodigality of punishments, by which men have never been

made any better, has driven me to examine whether the punishment

of death be really useful and just in a well organised government.

What kind of right can that be which men claim for the slaughter of

their fellow-beings? Certainly not that right which is the source of

sovereignty and of laws. For these are nothing but the sum-total of

the smallest portions of individual liberty, and represent the general

will, that is, the aggregate of individual wills. But who ever wished to

leave to other men the option of killing him? How in the least possible

sacrifice of each man’s liberty can there be a sacrifice of the greatest

of all goods, namely, of life? And if there could be that sacrifice, how

would such a principle accord with the other, that a man is not the

master of his own life? Yet he must have been so, could he have given to

himself or to society as a body this right of killing him.

The death penalty therefore is not a right; I have proved that it cannot

be so; but it is a war of a nation against one of its members, because

his annihilation is deemed necessary and expedient. But if I can show

that his death is neither necessary nor expedient, I shall have won the

cause of humanity.

The death of a citizen can only be deemed necessary for two reasons.

The first is when, though deprived of his personal freedom, he has

still such connections and power as threaten the national security;

when his existence is capable of producing a dangerous revolution in

the established form of government. The death of a citizen becomes

then necessary when the nation is recovering or losing its liberty, or

in a time of anarchy, when confusion takes the place of laws; but in

times when the laws hold undisturbed sway, when the form of government

corresponds with the wishes of a united nation, and is defended

internally and externally by force, and by opinion which is perhaps even

stronger than force, where the supreme power rests only with the real

sovereign, and riches serve to purchase pleasures but not places, I see

no necessity for destroying a citizen, except when his death might be the

real and only restraint for diverting others from committing crimes; this

latter case constituting the second reason for which one may believe

capital punishment to be both just and necessary.

Since mankind generally, suspicious always of the language of reason, but

ready to bow to that of authority, remain unpersuaded by the experience

of all ages, in which the supreme punishment has never diverted resolute

men from committing offences against society; since also they are equally

unmoved by the example of the Romans and by twenty years of the reign

of the Empress Elizabeth of Russia, during which she presented this

illustrious example to the fathers of their people, an example which

is at least equivalent to many conquests bought by the blood of her

country’s sons, it is sufficient merely to consult human nature itself,

to perceive the truth of the assertion I have made.

The greatest effect that any punishment has upon the human mind is not

to be measured by its intensity but by its duration, for our sensibility

is more easily and permanently affected by very slight but repeated

impressions than by a strong but brief shock. Habit holds universal sway

over every sentient being, and as we speak and walk and satisfy our

needs by its aid, so moral ideas only stamp themselves on our mind by

long and repeated impressions. It is not the terrible yet brief sight of

a criminal’s death, but the long and painful example of a man deprived

of his liberty, who, having become as it were a beast of burthen,

repays with his toil the society he has offended, which is the strongest

restraint from crimes. Far more potent than the fear of death, which men

ever have before their eyes in the remote distance, is the thought, so

efficacious from its constant recurrence: ‘I myself shall be reduced to

as long and miserable a condition if I commit similar misdeeds.’

Capital punishment makes an impression in prospect which, with all

its force, does not fully meet that ready spirit of forgetfulness, so

natural to man even in his most important concerns, and so liable to

be accelerated by his passions. As a general rule, men are startled

by the sight of violent sufferings, but not for long, and therefore

such impressions are wont so to transform them as to make of ordinary

men either Persians or Spartans; but in a free and settled government

impressions should rather be frequent than strong.

Capital punishment becomes a spectacle for the majority of mankind, and

a subject for compassion and abhorrence for others; the minds of the

spectators are more filled with these feelings than with the wholesome

terror the law pretends to inspire. But in moderate and continuing

penalties the latter is the predominant feeling, because it is the only

one. The limit, which the legislator should affix to the severity of

penalties, appears to lie in the first signs of a feeling of compassion

becoming uppermost in the minds of the spectators, when they look upon

the punishment rather as their own than as that of the criminal.

In order that a punishment may be just, it must contain only such

degrees of intensity as suffice to deter men from crimes. But as there

is no one who on reflection would choose the total and perpetual loss

of his liberty, however great the advantages offered him by a crime,

the intensity of the punishment of servitude for life, substituted for

capital punishment, has that in it which is sufficient to daunt the most

determined courage. I will add that it is even more deterrent than death.

Very many men face death calmly and firmly, some from fanaticism, some

from vanity, which almost always attends a man to the tomb; others from a

last desperate attempt either no longer to live or to escape from their

misery; but neither fanaticism nor vanity have any place among fetters

and chains, under the stick, under the yoke, in a cage of iron; the

wretch thus punished is so far from terminating his miseries that with

his punishment he only begins them.

The mind of man offers more resistance to violence and to extreme but

brief pains than it does to time and to incessant weariness; for whilst

it can, so to speak, gather itself together for a moment to repel the

former, its vigorous elasticity is insufficient to resist the long and

repeated action of the latter. In the case of capital punishment, each

example presented of it is all that a single crime affords; in penal

servitude for life, a single crime serves to present numerous and lasting

warnings. And if it be important that the power of the laws should often

be witnessed, there ought to be no long intervals between the examples

of the death penalty; but this would presuppose the frequency of crimes,

so that, to render the punishment effective, it must not make on men

all the impression that it ought to make, in other words, it must be

useful and not useful at the same time. And should it be objected that

perpetual servitude is as painful as death, and therefore equally cruel,

I will reply, that, taking into consideration all the unhappy moments of

servitude, it will perhaps be even more painful than death; but whilst

these moments are spread over the whole of a lifetime, death exercises

all its force in a single moment. There is also this advantage in penal

servitude, that it has more terrors for him who sees it than for him

who suffers it, for the former thinks of the whole sum-total of unhappy

moments, whilst the latter, by the unhappiness of the present moment, has

his thoughts diverted from that which is to come. All evils are magnified

in imagination, and every sufferer finds resources and consolations

unknown to and unbelieved in by spectators, who substitute their own

sensibility for the hardened soul of a criminal.

The following is the kind of reasoning adopted by the thief or the

assassin, whose only motives for not breaking the laws are the gallows

or the wheel. (I know that the analysis of one’s own thoughts is an art

only learnt by education, but a thief does not the less act according to

certain principles because he is unable to express them). ‘Of what sort,’

he argues, ‘are these laws that I am bound to observe, that leave so

great an interval between myself and the rich man? He denies me the penny

I ask of him, and excuses himself by ordering from me a work of which

he himself knows nothing. Who has made these laws? Were they not made

by rich and powerful men, who have never deigned to visit the wretched

hovels of the poor, who have never divided a musty loaf of bread amid

the innocent cries of famished children and the tears of a wife? Let

us break these bonds, which are fatal to the greater number, and only

useful to a few indolent tyrants; let us attack injustice in its source.

I will return to my state of natural independence; I will live for some

time happy and free on the fruits of my courage and address; and if

the day should ever come when I have to suffer and repent for it, the

time of suffering will be short, and I shall have one day of misery for

many years of liberty and pleasure. As the king of a small band, I will

correct the errors of fortune, and see these tyrants pale and tremble

before one, whom in their insolent arrogance they rated lower than their

horses or their dogs.’ Then religion hovers before the mind of the

criminal, who turns everything to a bad use, and offering him a facile

repentance and an almost certain eternity of bliss does much to diminish

in his eyes the horror of that last tragedy of all.

But the man who sees in prospect a great number of years, or perhaps the

whole of his life, to be passed in servitude and suffering before the

eyes of fellow-citizens with whom he is living in freedom and friendship,

the slave of those laws which had once protected him, makes a useful

comparison of all these circumstances with the uncertain result of his

crimes and with the shortness of the time for which he would enjoy their

fruits. The ever present example of those whom he actually sees the

victims of their own imprudence, impresses him much more strongly than

the sight of a punishment which hardens rather than corrects him.

Capital punishment is injurious by the example of barbarity it presents.

If human passions, or the necessities of war, have taught men to shed

one another’s blood, the laws, which are intended to moderate human

conduct, ought not to extend the savage example, which in the case of a

legal execution is all the more baneful in that it is carried out with

studied formalities. To me it seems an absurdity, that the laws, which

are the expression of the public will, which abhor and which punish

murder, should themselves commit one; and that, to deter citizens from

private assassination, they should themselves order a public murder. What

are the true and the most useful laws? Are they not those covenants and

conditions which all would wish observed and proposed, when the incessant

voice of private interest is hushed or is united with the interest of the

public? What are every man’s feelings about capital punishment? Let us

read them in the gestures of indignation and scorn with which everyone

looks upon the executioner, who is, after all, an innocent administrator

of the public will, a good citizen contributory to the public welfare,

an instrument as necessary for the internal security of a State as

brave soldiers are for its external. What, then, is the source of this

contradiction; and why is this feeling, in spite of reason, ineradicable

in mankind? Because men in their most secret hearts, that part of them

which more than any other still preserves the original form of their

first nature, have ever believed that their lives lie at no one’s

disposal, save in that of necessity alone, which, with its iron sceptre,

rules the universe.

What should men think when they see wise magistrates and grave priests

of justice with calm indifference causing a criminal to be dragged

by their slow procedure to death; or when they see a judge, whilst a

miserable wretch in the convulsions of his last agonies is awaiting the

fatal blow, pass away coldly and unfeelingly, perhaps even with a secret

satisfaction in his authority, to enjoy the comforts and pleasures of

life? ‘Ah’ they will say, ‘these laws are but the pretexts of force,

and the studied cruel formalities of justice are but a conventional

language, used for the purpose of immolating us with greater safety, like

victims destined in sacrifice to the insatiable idol of tyranny. That

assassination which they preach to us as so terrible a misdeed we see

nevertheless employed by them without either scruple or passion. Let us

profit by the example. A violent death seemed to us a terrible thing in

the descriptions of it that were made to us, but we see it is a matter of

a moment. How much less terrible will it be for a man who, not expecting

it, is spared all that there is of painful in it.’

Such are the fatal arguments employed, if not clearly, at least vaguely,

by men disposed to crimes, among whom, as we have seen, the abuse of

religion is more potent than religion itself.

If I am confronted with the example of almost all ages and almost all

nations who have inflicted the punishment of death upon some crimes, I

will reply, that the example avails nothing before truth, against which

there is no prescription of time; and that the history of mankind conveys

to us the idea of an immense sea of errors, among which a few truths,

confusedly and at long intervals, float on the surface. Human sacrifices

were once common to almost all nations, yet who for that reason will dare

defend them? That some few states, and for a short time only, should

have abstained from inflicting death, rather favours my argument than

otherwise, because such a fact is in keeping with the lot of all great

truths, whose duration is but as of a lightning flash in comparison with

the long and darksome night that envelops mankind. That happy time has

not yet arrived when truth, as error has hitherto done, shall belong to

the majority of men; and from this universal law of the reign of error

those truths alone have hitherto been exempt, which supreme wisdom has

seen fit to distinguish from others, by making them the subject of a

special revelation.

The voice of a philosopher is too feeble against the noise and cries

of so many followers of blind custom, but the few wise men scattered

over the face of the earth will respond to me from their inmost hearts;

and, amid the many obstacles that keep it from a monarch, should truth

perchance arrive in spite of him at his throne, let him know that it

comes there attended by the secret wishes of all men; let him know that

before his praises the bloody fame of conquerors will be silenced, and

that posterity, which is just, will assign him the foremost place among

the pacific triumphs of a Titus, an Antonine, or a Trajan.

Happy were humanity, if laws were now dictated to it for the first

time, when we see on the thrones of Europe beneficent monarchs, men

who encourage the virtues of peace, the sciences and the arts, who are

fathers to their people, who are crowned citizens, and the increase of

whose authority forms the happiness of their subjects, because it removes

that intermediate despotism, more cruel because less secure, by which the

people’s wishes, always sincere, and always attended to when they can

reach the throne, have been usually intercepted and suppressed. If they,

I say, suffer the ancient laws to exist, it is owing to the infinite

difficulties of removing from errors the revered rust of many ages; which

is a reason for enlightened citizens to desire with all the greater

ardour the continual increase of their authority.

Crimes and Punishments Including a New Translation of Beccaria's 'Dei Delitti e delle Pene' · 第 16 / 42 章