On Torture, On the Punishment of Death
In 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 generally 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 are 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 receive 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 the 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 nations 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 obscurity 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 knowledge 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 much 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 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 nature 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 eternally 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 and philosophy, and excite that tender emotion in which sensible minds sympathise with him who pleads the cause of humanity.
The torture of a criminal during the course of his trial is a cruelty consecrated by custom in most nations. It is used with an intent either to make him confess his crime, or to explain some contradictions into which he had been led during his examination, or discover his accomplices, or for some kind of metaphysical and incomprehensible purgation of infamy, or, finally, in order to discover other crimes of which he is not accused, but of which he may be guilty.
No man can be judged a criminal until he be found guilty; nor can society take from him the public protection until it have been proved that he has violated the conditions on which it was granted. What right, then, but that of power, can authorise the punishment of a citizen so long as there remains any doubt of his guilt? This dilemma is frequent. Either he is guilty, or not guilty.
If guilty, he should only suffer the punishment ordained by the laws, and torture becomes useless, as his confession is unnecessary, if he be not guilty, you torture the innocent; for, in the eye of the law, every man is innocent whose crime has not been proved. Besides, it is confounding all relations to expect that a man should be both the accuser and accused; and that pain should be the test of truth, as if truth resided in the muscles and fibres of a wretch in torture. By this method the robust will escape, and the feeble be condemned. These are the inconveniences of this pretended test of truth, worthy only of a cannibal, and which the Romans, in many respects barbarous, and whose savage virtue has been too much admired, reserved for the slaves alone.
What is the political intention of punishments? To terrify and be an example to others. Is this intention answered by thus privately torturing the guilty and the innocent? It is doubtless of importance that no crime should remain unpunished; but it is useless to make a public example of the author of a crime hid in darkness.
A crime already committed, and for which there can be no remedy, can only be punished by a political society with an intention that no hopes of impunity should induce others to commit the same. If it be true, that the number of those who from fear or virtue respect the laws is greater than of those by whom they are violated, the risk of torturing an innocent person is greater, as there is a greater probability that, cæteris paribus, an individual hath observed, than that he hath infringed the laws.
There is another ridiculous motive for torture, namely, to purge a man from infamy. Ought such an abuse to be tolerated in the eighteenth century? Can pain, which is a sensation, have any connection with a moral sentiment, a matter of opinion? Perhaps the rack may be considered as the refiner’s furnace.
It is not difficult to trace this senseless law to its origin; for an absurdity, adopted by a whole nation, must have some affinity with other ideas established and respected by the same nation. This custom seems to be the offspring of religion, by which mankind, in all nations and in all ages, are so generally influenced.
We are taught by our infallible church, that those stains of sin contracted through human frailty, and which have not deserved the eternal anger of the Almighty, are to be purged away in another life by an incomprehensible fire. Now infamy is a stain, and if the punishments and fire of purgatory can take away all spiritual stains, why should not the pain of torture take away those of a civil nature?
I imagine, that the confession of a criminal, which in some tribunals is required as being essential to his condemnation, has a similar origin, and has been taken from the mysterious tribunal of penitence, were the confession of sins is a necessary part of the sacrament. Thus have men abused the unerring light of revelation; and, in the times of tractable ignorance, having no other, they naturally had recourse to it on every occasion, making the most remote and absurd applications. Moreover, infamy is a sentiment regulated neither by the laws nor by reason, but entirely by opinion; but torture renders the victim infamous, and therefore cannot take infamy away.
Another intention of torture is to oblige the supposed criminal to reconcile the contradictions into which he may have fallen during his examination; as if the dread of punishment, the uncertainty of his fate, the solemnity of the court, the majesty of the judge, and the ignorance of the accused, were not abundantly sufficient to account for contradictions, which are so common to men even in a state of tranquillity, and which must necessarily be multiplied by the perturbation of the mind of a man entirely engaged in the thoughts of saving himself from imminent danger.
This infamous test of truth is a remaining monument of that ancient and savage legislation, in which trials by fire, by boiling water, or the uncertainty of combats, were called judgments of God; as if the links of that eternal chain, whose beginning is in the breast of the first cause of all things, could ever be disunited by the institutions of men.
The only difference between torture and trials by fire and boiling water is, that the event of the first depends on the will of the accused, and of the second on a fact entirely physical and external: but this difference is apparent only, not real. A man on the rack, in the convulsions of torture, has it as little in his power to declare the truth, as, in former times, to prevent without fraud the effects of fire or boiling water.
Every act of the will is invariably in proportion to the force of the impression on our senses. The impression of pain, then, may increase to such a degree, that, occupying the mind entirely, it will compel the sufferer to use the shortest method of freeing himself from torment. His answer, therefore, will be an effect as necessary as that of fire or boiling water, and he will accuse himself of crimes of which he is innocent: so that the very means employed to distinguish the innocent from the guilty will most effectually destroy all difference between them.
It would be superfluous to confirm these reflections by examples of innocent persons who, from the agony of torture, have confessed themselves guilty: innumerable instances may be found in all nations, and in every age. How amazing that mankind have always neglected to draw the natural conclusion! Lives there a man who, if he has carried his thoughts ever so little beyond the necessities of life, when he reflects on such cruelty, is not tempted to fly from society, and return to his natural state of independence?
The result of torture, then, is a matter of calculation, and depends on the constitution, which differs in every individual, and it is in proportion to his strength and sensibility; so that to discover truth by this method, is a problem which may be better solved by a mathematician than by a judge, and may be thus stated: The force of the muscles and the sensibility of the nerves of an innocent person being given, it is required to find the degree of pain necessary to make him confess himself guilty of a given crime.
The examination of the accused is intended to find out the truth; but if this be discovered with so much difficulty in the air, gesture, and countenance of a man at case, how can it appear in a countenance distorted by the convulsions of torture? Every violent action destroys those small alterations in the features which sometimes disclose the sentiments of the heart.
These truths were known to the Roman legislators, amongst whom, as I have already observed, slaves only, who were not considered as citizens, were tortured.
They are known to the English a nation in which the progress of science, superiority in commerce, riches, and power, its natural consequences, together with the numerous examples of virtue and courage, leave no doubt of the excellence of its laws. They have been acknowledged in Sweden, where torture has been abolished. They are known to one of the wisest monarchs in Europe, who, having seated philosophy on the throne by his beneficent legislation, has made his subjects free, though dependent on the laws; the only freedom that reasonable men can desire in the present state of things.
In short, torture has not been thought necessary in the laws of armies, composed chiefly of the dregs of mankind, where its use should seem most necessary. Strange phenomenon! that a set of men, hardened by slaughter, and familiar with blood, should teach humanity to the sons of peace.
It appears also that these truths were known, though imperfectly, even to those by whom torture has been most frequently practised; for a confession made during torture, is null, if it be not afterwards confirmed by an oath, which if the criminal refuses, he is tortured again.
Some civilians and some nations permit this infamous petitio principii to be only three times repeated, and others leave it to the discretion of the judge; therefore, of two men equally innocent, or equally guilty, the most robust and resolute will be acquitted, and the weakest and most pusillanimous will be condemned, in consequence of the following excellent mode of reasoning. I, the judge, must find some one guilty. Thou, who art a strong fellow, hast been able to resist the force of torment; therefore I acquit thee. Thou, being weaker, hast yielded to it; I therefore condemn thee. I am sensible, that the confession which was extorted from thee has no weight; but if thou dost not confirm by oath what thou hast already confessed, I will have thee tormented again.
A very strange but necessary consequence of the use of torture is, that the case of the innocent is worse than that of the guilty. With regard to the first, either he confesses the crime which he has not committed, and is condemned, or he is acquitted, and has suffered a punishment he did not deserve. On the contrary, the person who is really guilty has the most favourable side of the question; for, if he supports the torture with firmness and resolution, he is acquitted, and has gained, having exchanged a greater punishment for a less.
The law by which torture is authorised, says, Men, be insensible to pain. Nature has indeed given you an irresistible self-love, and an unalienable right of self-preservation; but I create in you a contrary sentiment, an heroic hatred of yourselves. I command you to accuse yourselves, and to declare the truth, amidst the tearing of your flesh, and the dislocation of your bones.
Torture is used to discover whether the criminal be guilty of other crimes besides those of which he is accused, which is equivalent to the following reasoning. Thou art guilty of one crime, therefore it is possible that thou mayest have committed a thousand others; but the affair being doubtful I must try it by my criterion of truth. The laws order thee to be tormented because thou art guilty, because thou mayest be guilty, and because I choose thou shouldst be guilty.
Torture is used to make the criminal discover his accomplices; but if it has been demonstrated that it is not at a proper means of discovering truth, how can it serve to discover the accomplices, which is one of the truths required? Will not the man who accuses himself yet more readily accuse others?
Besides, is it just to torment one man for the crime of another? May not the accomplices be found out by the examination of the witnesses, or of the criminal; from the evidence, or from the nature of the crime itself; in short, by all the means that have been used to prove the guilt of the prisoner? The accomplices commonly fly when their comrade is taken. The uncertainty of their fate condemns them to perpetual exile, and frees society from the danger of further injury; whilst the punishment of the criminal, by deterring others, answers the purpose for which it was ordained.
On the Punishment of Death
The useless profusion of punishments, which has never made men better induces me to inquire, whether the punishment of death be really just or useful in a well governed state? What right, I ask, have men to cut the throats of their fellow-creatures? Certainly not that on which the sovereignty and laws are founded.
The laws, as I have said before, are only the sum of the smallest portions of the private liberty of each individual, and represent the general will, which is the aggregate of that of each individual. Did any one ever give to others the right of taking away his life? Is it possible that, in the smallest portions of the liberty of each, sacrificed to the good of the public, can be contained the greatest of all good, life? If it were so, how shall it be reconciled to the maxim which tells us, that a man has no right to kill himself, which he certainly must have, if he could give it away to another?
But the punishment of death is not authorised by any right; for I have demonstrated that no such right exists. It is therefore a war of a whole nation against a citizen whose destruction they consider as necessary or useful to the general good. But if I can further demonstrate that it is neither necessary nor useful, I shall have gained the cause of humanity.
The death of a citizen cannot be necessary but in one case: when, though deprived of his liberty, he has such power and connections as may endanger the security of the nation; when his existence may produce a dangerous revolution in the established form of government.
But, even in this case, it can only be necessary when a nation is on the verge of recovering or losing its liberty, or in times of absolute anarchy, when the disorders themselves hold the place of laws: but in a reign of tranquillity, in a form of government approved by the united wishes of the nation, in a state well fortified from enemies without and supported by strength within, and opinion, perhaps more efficacious, where all power is lodged in the hands of a true sovereign, where riches can purchase pleasures and not authority, there can be no necessity for taking away the life of a subject.
If the experience of all ages be not sufficient to prove, that the punishment of death has never prevented determined men from injuring society, if the example of the Romans, if twenty years’ reign of Elizabeth, empress of Russia, in which she gave the fathers of their country an example more illustrious than many conquests bought with blood; if, I say, all this be not sufficient to persuade mankind, who always suspect the voice of reason, and who choose rather to be led by authority, let us consult human nature in proof of my assertion.
It is not the intenseness of the pain that has the greatest effect on the mind, but its continuance; for our sensibility is more easily and more powerfully affected by weak but repeated impressions, than by a violent but momentary impulse. The power of habit is universal over every sensible being. As it is by that we learn to speak, to walk, and to satisfy our necessities, so the ideas of morality are stamped on our minds by repeated impression.
The death of a criminal is a terrible but momentary spectacle, and therefore a less efficacious method of deterring others than the continued example of a man deprived of his liberty, condemned, as a beast of burden, to repair, by his labour, the injury he has done to society, If I commit such a crime, says the spectator to himself, I shall be reduced to that miserable condition for the rest of my life. A much more powerful preventive than the fear of death which men always behold in distant obscurity.
The terrors of death make so slight an impression, that it has not force enough to withstand the forgetfulness natural to mankind, even in the most essential things, especially when assisted by the passions. Violent impressions surprise us, but their effect is momentary; they are fit to produce those revolutions which instantly transform a common man into a Lacedaemonian or a Persian; but in a free and quiet government they ought to be rather frequent than strong.
The execution of a criminal is to the multitude a spectacle which in some excites compassion mixed with indignation. These sentiments occupy the mind much more than that salutary terror which the laws endeavor to inspire; but, in the contemplation of continued suffering, terror is the only, or at least predominant sensation. The severity of a punishment should be just sufficient to excite compassion in the spectators, as it is intended more for them than for the criminal.
A punishment, to be just, should have only that degree of severity which is sufficient to deter others. Now there is no man whop upon the least reflection, would put in competition the total and perpetual loss of his liberty, with the greatest advantages he could possibly obtain in consequence of a crime. Perpetual slavery, then, has in it all that is necessary to deter the most hardened and determined, as much as the punishment of death. I say it has more.
There are many who can look upon death with intrepidity and firmness, some through fanaticism, and others through vanity, which attends us even to the grave; others from a desperate resolution, either to get rid of their misery, or cease to live: but fanaticism and vanity forsake the criminal in slavery, in chains and fetters, in an iron cage, and despair seems rather the beginning than the end of their misery.
The mind, by collecting itself and uniting all its force, can, for a moment, repel assailing grief; but its most vigorous efforts are insufficient to resist perpetual wretchedness.
In all nations, where death is used as a punishment, every example supposes a new crime committed; whereas, in perpetual slavery, every criminal affords a frequent and lasting example; and if it be necessary that men should often be witnesses of the power of the laws, criminals should often be put to death: but this supposes a frequency of crimes; and from hence this punishment will cease to have its effect, so that it must be useful and useless at the same time.
I shall be told that perpetual slavery is as painful a punishment as death, and therefore as cruel. I answer, that if all the miserable moments in the life of a slave were collected into one point, it would be a more cruel punishment than any other; but these are scattered through his whole life, whilst the pain of death exerts all its force in a moment.
There is also another advantage in the punishment of slavery, which is, that it is more terrible to the spectator than to the sufferer himself; for the spectator considers the sum of all his wretched moments whilst the sufferer, by the misery of the present, is prevented from thinking of the future. All evils are increased by the imagination, and the sufferer finds resources and consolations of which the spectators are ignorant, who judge by their own sensibility of what passes in a mind by habit grown callous to misfortune.
Let us, for a moment, attend to the reasoning of a robber or assassin, who is “Who made these laws? The rich and the great, who never deigned to visit the miserable hut of the poor, who have never seen him dividing a piece of mouldy bread, amidst the cries of his famished children and the tears of his wife.
Let us break those ties, fatal to the greatest part of mankind, and only useful to a few indolent tyrants. Let us attack injustice at its source. I will return to my natural state of independence. I shall live free and happy on the fruits of my courage and industry. A day of pain and repentance may come, but it will be short; and for an hour of grief I shall enjoy years of pleasure and liberty. King of a small number as determined as myself, I will correct the mistakes of fortune, and I shall see those tyrants grow pale and tremble at the sight of him, whom, with insulting pride, they would not suffer to rank with their dogs and horses.”
Religion then presents itself to the mind of this lawless villain, and, promising him almost a certainty of eternal happiness upon the easy terms of repentance, contributes much to lessen the horror of the last scene of the tragedy.
But he who foresees that he must pass a great number of years, even his whole life, in pain and slavery, a slave to those laws by which he, was protected, in sight of his fellow-citizens, with whom he lives in freedom and society, makes an useful comparison between those evils, the uncertainty of his success, and the shortness of the time in which he shall enjoy the fruits of his transgression. The example of those wretches, continually before his eyes, makes a much greater impression on him than a punishment, which instead of correcting, makes him more obdurate.
The punishment of death is pernicious to society, from the example of barba- rity it affords. If the passions, or the necessity of war, have taught men to shed the blood of their fellow creatures, the laws, which are intended to moderate the ferocity of mankind, should not increase it by examples of barbarity, the more horrible as this punishment is usually attended with formal pageantry.
Is it not absurd, that the laws, which detest and punish homicide, should, in order to prevent murder, publicly commit murder themselves? What are the true and most useful laws? Those compacts and conditions which all would propose and observe in those moments when private interest is silent, or combined with that of the public. What are the natural sentiments of every person concerning the punishment of death?
We may read them in the contempt and indignation with which every one looks on the executioner, who is nevertheless an innocent executor of the public will, a good citizen, who contributes to the advantage of society, the instrument of the general security within, as good soldiers are without. What then is the origin of this contradiction? Why is this sentiment of mankind indelible to the scandal of reason?
It is, that, in a secret corner of the mind, in which the original impressions of nature are still preserved, men disco- ver a sentiment which tells them, that their lives are not lawfully in the power of any one, but of that necessity only which with its iron sceptre rules the universe.
What must men think, when they see wise magistrates and grave ministers of justice, with indifference and tranquillity, dragging a criminal to death, and whilst a wretch trembles with agony, expecting the fatal stroke, the judge, who has condemned him, with the coldest insensibility, and perhaps with no small gratification from the exertion of his authority, quits his tribunal, to enjoy the comforts and pleasures of life?
They will say, “Ah! those cruel formalities of justice are a cloak to tyranny, they are a secret language, a solemn veil, intended to conceal the sword by which we are sacrificed to the insatiable idol of despotism. Murder, which they would represent to us an horrible crime, we see practised by them without repugnance or remorse. Let us follow their example. A violent death appeared terrible in their descriptions, but we see that it is the affair of a moment.
It will be still less terrible to him who, not expecting it, escapes almost all the pain.” Such is the fatal though absurd reasonings of men who are disposed to commit crimes, on whom the abuse of religion has more influence than religion itself.
If it be objected, that almost all nations in all ages have punished certain crimes with death, I answer, that the force of these examples vanishes when opposed to truth, against which prescription is urged in vain. The history of mankind is an immense sea of errors, in which a few obscure truths may here and there be found.
But human sacrifices have also been common in almost all nations. That some societies only it either few in number, or for a very short time, abstained from the punishment of death, is rather favourable to my argument; for such is the fate of great truths, that their duration is only as a flash of lightning in the long and dark night of error. The happy time is not yet arrived, when truth, as falsehood has been hitherto, shall be the portion of the greatest number.
I am sensible that the voice of one philosopher is too weak to be heard amidst the clamours of a multitude, blindly influenced by custom; but there is a small number of sages scattered on the face of the earth, who will echo to me from the bottom of their hearts; and if these truths should happily force their way to the thrones of princes be it known to them, that they come attended with the secret wishes of all mankind; and tell the sovereign who deigns them a gracious re- ception, that his fame shall outshine the glory of conquerors, and that equitable posterity will exalt his peaceful trophies above those of a Titus, an Antoninus, or a Trajan.
How happy were mankind if laws were now to be first formed! now that we see on the thrones of Europe benevolent monarchs, friends to the virtues of peace, to the arts and sciences, fathers of their people, though crowned, yet citizens; the increase of whose authority augments the happiness of their subjects, by de- stroying that inter. mediate despotism which intercepts the prayers of the people to the throne.
If these humane princes have suffered the old laws to subsist, it is doubtless because they are deterred by the numberless obstacles which oppose the subversion of errors established by the sanction of many ages; and therefore every wise citizen will wish for the increase of their authority.
Cesare Bonesana Marchese di Beccaria, 1738-1794, enlightenment philosopher and one of the fathers of utilitarianism. Beccaria was one of the main developers of the Italian tradition in economics, combining a utilitarian theory of statecraft and a demand-and-supply theory of value (anticipating the Marginalist Revolution).
Dei 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: Printed and sold by R. Bell, next door to St. Paul’s Church, in Third-Street. MDCCLXXVIII. 
Translated by Edward D. Ingraham. Second American edition. Philadelphia (No. 175, Chesnut St.): Published by Philip H. Nicklin: A. Walker, printer, 24, Arch St., 1819
Leave a Reply