The torture of a criminal while his trial is being put together is a cruelty accepted by most nations, whether to compel him to confess a crime, to exploit the contradictions he runs into, to uncover his accomplices, to carry out some mysterious and incomprehensible metaphysical purging of his infamy, {or, lastly, to expose other crimes of which he is guilty but with which he has not been charged}.

No man may be called guilty before the judge has reached his verdict; nor may society withdraw its protection from him until it has been determined that he has broken the terms of the compact by which that protection was extended to him. By what right, then, except that of force, does the judge have the authority to inflict punishment on a citizen while there is doubt about whether he is guilty or innocent? This dilemma is not a novelty: either the crime is certain or it is not; if it is certain, then no other punishment is called for than what is established by law and other torments are superfluous because the criminal's confession is superfluous; if it is. not certain, then an innocent man should not be made to suffer, because, in law, such a man's crimes have not been proven.

I am prompted by this futile excess of punishments, which have never made men better, to enquire whether the death penalty is really useful and just in a well-organised state. By what right can men presume to slaughter their fellows? Certainly not that right which is the foundation of sovereignty and the laws. For these are nothing but the sum of the smallest portions of each man's own freedom; they represent the general will which is the aggregate of the individual wills. Who has ever willingly given up to others the authority to kill him? How on earth can the minimum sacrifice of each individual's freedom involve handing over the greatest of all goods, life itself? And even if that were so, how can it be reconciled with the other principle which denies that a man is free to commit suicide, which he must be, if he is able to transfer that right to others or to society as a whole?

Thus, the death penalty is not a matter of right, as I have just shown, but is an act of war on the part of society against the citizen that comes about when it is deemed necessary or useful to destroy his existence. But if I can go on to prove that such a death is neither necessary nor useful, I shall have won the cause of humanity.

Such lamentable but authorised injustices were sanctioned by the most enlightened men and implemented by the freest republics, as a result of regarding society as a union of families rather than as a union of persons. Say there are one hundred thousand people, divided into twenty thousand families, each comprising five people including the head of the family who represents it: then if the association is regarded as consisting of families, there will be twenty thousand persons and eighty thousand slaves; if it is regarded as consisting of individuals there will be one hundred thousand citizens and no slaves. In the former case, there will be one republic and twenty thousand little monarchies which make it up; in the latter, the republican spirit will be breathed not only in the squares and in public meetings, but also within the home, where much of a man's happiness or misery is to be found. In the first case, since laws and customs are the product of the habitual sentiments of the members of the republic – that is, of the heads of households – the spirit of monarchism will gradually infiltrate the republic itself and the effects of this change will be curbed only by the conflict of individual interests, and not by an atmosphere of freedom and equality. Family feeling is a feeling for details and is limited to small matters.

Thefts without violence should be punished with fines. Whoever seeks to enrich himself at the expense of others ought to be deprived of his own wealth. But, since this is generally the crime of poverty and desperation, the crime of that unhappy section of men to whom the perhaps ‘terrible’ and ‘unnecessary’ right to property has allowed nothing but a bare existence, {and since fines only increase the number of criminals above the original number of crimes, and take bread from the innocent when taking it from the villains,} the most fitting punishment shall be the only sort of slavery which can be called just, namely the temporary enslavement of the labour and person of the criminal to society, so that he may redress his unjust despotism against the social contract by a period of complete personal subjection.

But when violence is added to theft, then the punishment ought to be likewise a mixture of corporal punishment and penal servitude. Other writers before me have shown the disarray which arises from failing to distinguish between the punishments for violent thefts and those by stealth, by trying to set up an absurd equation between a large sum of money and the life of a man; but it is never redundant to repeat what has almost never been put into practice. Once set in motion, political machines continue the longest in one direction and are the slowest to adjust to a new one.

There is a very useful theorem for calculating the certainty of a matter, such as the evidence for a crime. When the pieces of evidence for some matter are interdependent, that is, when the pieces of evidence cannot be tested except against each other, then, the more evidence is adduced, the less credible is the matter in question, because anything which would make the earlier parts fail will make the later parts fail too. {{When all the pieces of evidence for some matter depend equally on a single piece, the number of pieces neither increases nor decreases the probability of the matter, because their joint value as evidence is included in the value of the piece on which they all depend.}} When the pieces of evidence are independent of each other, that is, when the evidence can be tested other than by each other, then, the more evidence is adduced, the more credible is the matter in question, because the falsity of one piece of evidence does not affect the validity of the others.

It may seem odd that I talk of probability in relation to crimes, which have to be certain if they are to call for punishment. But the paradoxicality here will disappear if we see that moral certainty is, strictly speaking, nothing but a probability, though a probability of such a sort as to be called certainty because every reasonable man necessarily assents to it out of force of habit born of the need to act and antecedent to any theorising.

Private duels, whose origin lay in the very anarchy of the laws, arose from this need for others' esteem. Duels are alleged to have been unknown in the ancient world, perhaps because the ancients did not foregather in temples, in theatres and with their friends warily forearmed, or perhaps because the duel was a common and ordinary spectacle which enslaved and debased gladiators gave to the public, and free men disdained to be considered and called gladiators because of their private combats.

Attempts to put a stop to this custom by decrees of death against those who engage in duels have been in vain, for it is founded on something which some men fear more than death. Deprived of the esteem of others, the man of honour sees himself doomed to become either a merely solitary being, which would be an insupportable condition for a sociable man, or the butt of insults and slander, whose combined effect would be greater than the danger of punishment.

Why is it that ordinary people for the most part do not duel as noblemen do? It is not just that they are unarmed, but because the need for others' esteem is less common among the humble classes than it is among those who, being exalted, regard each other with greater circumspection and jealousy.

Anyone who disturbs the public peace, who does not obey the laws which are the conditions under which men abide with each other and defend themselves, must be ejected from society – in other words, he must be banished. This is the reason why wise states will not endure, in the midst of effort and industriousness, that sort of political parasitism which is confused by stern moralists with the idleness of wealth accumulated by hard work. This latter is a necessary idleness and useful insofar as society expands and the administration of public affairs contracts. By parasitism I mean that kind of inactivity which contributes neither labour nor wealth to society, which accumulates without ever losing, and which the masses regard with foolish admiration and the wise with scornful compassion for those victims who fall into its clutches and who lacking that drive towards an active life which is given by the necessity of caring for or increasing the requisites of life, let all their energies drift at the mercy of the passions of opinion, which are not the weakest of passions. We cannot call someone a social parasite who enjoys the fruits of his own forefathers' virtues or vices and who, in return for his temporary pleasures, dispenses bread and a livelihood to the industrious poor, and who wages by means of his wealth the silent war of trade in peacetime, rather than waging with force the uncertain and bloody sort of war.

Every punishment which is not derived from absolute necessity is tyrannous, says the great Montesquieu, a proposition which may be generalised as follows: every act of authority between one man and another which is not derived from absolute necessity is tyrannous. Here, then, is the foundation of the sovereign's right to punish crimes: the necessity of defending the repository of the public well-being from the usurpations of individuals. The juster the punishments, the more sacred and inviolable is the security and the greater the freedom which the sovereign preserves for his subjects. If we consult the human heart, we find in it the fundamental principles of the sovereign's true right to punish crimes, for it is vain to hope that any lasting advantage will accrue from public morality if it be not founded on ineradicable human sentiments. Any law which differs from them will always meet with a resistance that will overcome it in the end, in the same way that a force, however small, applied continuously, will always overcome a sudden shock applied to a body.

No man has made a gift of part of his freedom with the common good in mind; that kind of fantasy exists only in novels. If it were possible, each one of us would wish that the contracts which bind others did not bind us. Every man makes himself the centre of all the world's affairs.

Smuggling is a real crime against the sovereign and the nation, but the punishment of it should not involve dishonour since it does not seem disgraceful in the eyes of the public. If humiliating punishments are given to crimes which are not held to be dishonourable, then the feeling of disgrace aroused by those that really are so diminishes. One who sees the same punishment of death, for instance, for the killer of a pheasant as for the killer of a man or for the forger of an important document, cannot see any difference among these crimes. In this way the moral sentiments are destroyed, feelings which are the work of many centuries and much blood, and which are so slow and difficult to kindle in human hearts that it was believed necessary to employ the most sublime motives and the trappings of solemn ceremonial to arouse them.

This is a crime which arises from the law itself because the higher the custom duty, the greater the advantage; and so the temptation to smuggle and the ease of committing it grow as the borders to be protected lengthen and the volume of goods necessary for a profit diminishes. Punishment by confiscation of both the contraband goods and the gear found with it is very fair, but the lower the duty the more effective it would be, since men do not take risks except in proportion to the profit they expect to result from a successful venture.

Two questions remain to be considered: the first is whether it is just that there be places of asylum, and whether it is useful or not to have extradition treaties between different countries. Within a country's borders there should be no place which is outside the law. Its power should follow every citizen like a shadow. Impunity and asylum differ only in degree, and since the certainty of punishment makes more of an impression than its harshness, asylums invite men to commit crimes more than punishments deter them from them. To increase the number of asylums is to create so many little sovereign states, because where the law does not run, there new laws can be framed opposed to the common ones and there can arise a spirit opposed to that of the whole body of society. The whole of history shows that great revolutions, both in states and in the views of men, have issued forth from places of asylum. But as to whether extradition is useful I would not dare to say until there are laws better suited to human needs, and more lenient punishments that put an end to dependence on fickleness and mere opinion, so that persecuted innocence and despised virtue are protected; until tyranny has been banished to the vast plains of Asia by that universal reason which ever more closely unites the interests of the throne and its subjects.

Finally, in the third type of crimes we find particularly those which disturb the public peace and the calm of the citizenry, such as brawls and revels in the public streets which are meant for the conduct of business and traffic. Likewise, there is fanatical demagogy which arouses the volatile emotions of curious crowds, emotions that gain in strength from the mass of the listeners and from dark and inscrutable enthusiasm more than from clear and calm reason, which never influences a large gathering of men.

Among the measures effective in forestalling the dangerous amassing of popular emotions are street-lighting at public expense, the posting of guards in the various districts of the city, sober and moral sermons delivered in the silence and sacred peace of churches protected by public authorities, and homilies in defence of public and private interests in the nation's councils, in parliaments or wherever the majesty of the sovereign power resides. These make up one of the main branches of the care of the magistrate, which the French call police. But if the magistrate implements laws which are arbitrary and not set down in a code which is diffused among all the citizens, then the door is open to tyranny, which always hems in political liberty.

I can find no exception to the general truism that every citizen ought to know when he is guilty and when he is innocent.

Some crimes are assaults on persons, others are offences against goods. The former should always be punished with corporal punishment: the rich and the powerful should not be able to put a price on assaults on the weak and the poor; otherwise wealth, which is the reward of industry under the protection of the laws, feeds tyranny. There is no freedom when 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 devoted to discovering from amongst the mass of civil relations those in which the law most favours his interests. The discovery of these is the magic secret which turns citizens into beasts of burden and which, in the hands of the strong, becomes the chain by which the actions of the rash and the weak are shackled. And it is the reason why, in some states which have all the appearance of being free, tyranny is hidden or worms its way unforeseen into a corner neglected by the lawgiver and gathers strength and grows unobserved. Men generally build the most solid bulwarks against open tyranny, but they do not see the tiny insect which gnaws away at them and opens a path for the river's flood that is the more sure for being concealed.

A fourth consequence. Nor can the authority to interpret the laws devolve upon the criminal judges, for the same reason that they are not legislators. The judges have not received the laws from our fore-fathers as if they were a family tradition or a will which leaves its inheritors no duty but that of obedience. Rather, they receive them from the living society or from the sovereign which represents it as the legitimate repository of the current sum of the will of the whole of society. The judges do not receive the laws as obligations of an ancient oath, which is void because it enchains the wills of those not yet born, and iniquitous because it reduces men from a state of society to the state of a herd. Rather, they receive them as the result of a tacit or express oath which the united wills of the subjects have made to the sovereign, as the bonds necessary to curb and control the domestic turbulence of particular interests. Such is the laws' physical and real authority. Who, then, shall be the rightful interpreter of the law? Shall it be the sovereign, that is the repository of the current will of all, or the judge, whose task is merely that of enquiring whether a given man has committed an unlawful act or not?

But should someone who is banished and excluded forever from the society of which he was a member be deprived of his possessions? This question can be considered from various points of view. The loss of one's goods is a greater punishment than that of banishment; so there ought to be some cases in which, proportionately with the crime, there ought to be partial or total loss of possessions or none at all. All possessions shall be forfeit when the banishment laid down by law is such as to sever all the ties between society and the malefactor. In such a case, the citizen dies and the man remains, and as far as the body politic is concerned, this should have the same effect as natural death. It would therefore seem that the convict's goods should pass to his legitimate heirs rather than to the prince, since death and banishment are identical in the eyes of the body politic. But it is not on account of this subtlety that I dare to oppose the confiscation of goods. If some writers have upheld the view that confiscations have put a brake on vendettas and private bullying, they have not observed that a punishment is just not simply because it produces some good, but because it is necessary.

What, then, shall be the punishments fitting for the nobility, whose privileges make up a large part of the laws of nations? This is not the place to consider whether the hereditary distinction between nobility and commoners is useful to a government or necessary in a monarchy, whether it really constitutes a power interposed between and limiting the excesses of the two extremes, or whether it is not rather a class which, a slave to itself and to others, restricts the circulation of credit and hope to a very narrow compass, like those fertile and pleasant oases that stand out in the vast and sandy deserts of Arabia. Nor shall I consider whether, supposing it to be true that inequality is either necessary or useful in society, it is also true that it should subsist between classes rather than between individuals, should be fixed at one part rather than distributed throughout the body politic, or should be perpetual rather than continually destroyed and reborn. I shall confine myself to the punishments suited to this class of person, observing that the punishments ought to be the same for the highest as they are for the lowest of citizens. To be legitimate, every distinction whether of honour or wealth presupposes an antecedent equality based on the laws, which treat every subject as equally subordinate to them.

A few odd remnants of the laws of an ancient conquering race codified twelve hundred years ago by a prince ruling at Constantinople, and since jumbled together with the customs of the Lombards and bundled up in the rambling volumes of obscure academic interpreters – this is what makes up the tradition of opinions that passes for law across a large portion of Europe. It is as deplorable as it is common that an opinion of Carpzov's, an ancient custom noted by Claro, or a mode of punishment suggested with vengeful complacency by Farinacci have become the laws so confidently implemented by those who should tremble at the responsibility of ordering the lives and fortunes of men. These laws, which are the residue of the most barbarous centuries, are examined in this book insofar as they relate to the system of criminal justice. This book presumes to set out their confusions for the benefit of those who are charged with the public welfare in a style designed to ward off the unenlightened and impatient run of men. That sincere search for the truth, that independence of vulgar opinion with which this work is written, are the effects of the benign and enlightened government under which the present author lives. The great monarchs, the human benefactors who rule us, love the truths which are expounded by humble philosophers with an unfanatical zeal directed exclusively against those who, eschewing reason, rely on force or machination.

Then let us take a more careful look at this supreme being and this new discovery.

What is not supposed to be my concern! First and foremost the good cause, then God's cause, the cause of mankind, of truth, of freedom, of humanity, of justice; further, the cause of my people, my prince, my fatherland; finally, even the cause of mind and a thousand other causes. Only my cause is never to be my concern. ‘Shame on the egoist who thinks only of himself!’

Let us look and see, then, how they manage their concerns, they for whose cause we are to labour, devote ourselves, and grow enthusiastic.

You have much profound information to give about God, and have for thousands of years ‘searched the depths of the Godhead’, and looked into its heart, so that you can doubtless tell us how God himself attends to ‘God's cause’, which we are called to serve. And you do not conceal the Lord's doings either. Now, what is his cause? Has he, as is demanded of us, made an alien cause, the cause of truth or love, his own? You are shocked by this misunderstanding, and you instruct us that God's cause is indeed the cause of truth and love, but that this cause cannot be called alien to him, because God is himself truth and love; you are shocked by the assumption that God could be like us poor worms in furthering an alien cause as his own.