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.AN

ESSAYON

CBtIMES AND PUNISHMENTS.DY

Cc:.~£\.~e. "'eloV\e.!oA."~YI'IOI.'('~"I'" J,,',.THE MA.RQUIS,,~ECvARIX OF MILAN.

WITH A.

OOMMENTARY

DY

M. DE VOLTAIRE.

A. NEW EDITION CORRECTED.

III rebus fJuibuftunfJue dijJiciliorif1usMil erpel1anrlum, uttjuisjimul, ~ ferat, ~ metat,fed pnzparatioHe opus eft, utper gradus mature.fcant. BACON. :

NEW EDITION.

ALBANY:W. O. LITTLE &; 00

1872.

,

, PREFACE OF THE TRANSLATOR.

PENAL LAWS, so considerable a part of every~'"systemof legislation, and of so great importance

, \'! to the happiness, peace and security of everyfmember of society, are still so imperfect, and are

~~ attended with so many unnecessary circumstances.)of cruelty in all nations, that an attempt to reduce

them to the standard of reason must be interest-ing to all mankind. It is not surprising then,

~

that this little book hat.h engaged the attentionof all ranks of people III every part of Europe.t is now about eighteen months since the first

(Jpublication; in which time it hath passed no less~ than six editions in the original language; thet third of which was printed within six months

after its first appearance. It hath been trans-

4 PREFACE. ,luted into French; that translation hath also beenseveral times reprinted, and perhaps no book, onany subject, was ever received with more avidity,more generally read, or more universally applauded.

The author is the Marquis BECCARIA,of Milan.Upon considering the nature of the religion andgovernment under which he lives, the reasons forconcealing his name are obvious. The whole was

. read, at different times, in a society of learnedmen in that city, and was published at theirdesire. As to the translation, I have preservedthe order of the original, except in a paragraphor two, which I have taken the liberty to restoreto the chapters to which they evidently belong,and from which they must have been accidentallydetached. The French translator hath gone muchfarther; he hath not only transposed every chap-ter, but every paragraph in the whole book. Butin this, I conceive he hath assumed a right whichbelongs not to any translator, and which cannotbe justified. His disposition may appear moresystematical, but certainly the author has asundoubted a right to the arrangement of his ownideas as to the ideas themselves; and therefore todestroy that arrangement, is to pervert his mean-ing, if he had any meaning in his plan, the con-trary to which can hardly be supposed.

l,.

PREFACE. 5

With regard to the Commentary, attributed tol\Ions. de Voltaire, my only authority for suppos·ing it his, is the voice of the public, which illdeedis the only authority we have for most of hisworks. Let those who are acquainted with thepeculiarity of his manner judge for themselves.

The facta above mentioned would preclude allapology for this translation, if any apology werenecessary, for translating into our language awork, which, from the nature of the subject, mustbe interesting to every nation; but must be par·ticularly acceptable to the English, from the elo-quent and forcible manner in which the authorpleads the cause of liberty, benevolence andhumanity. It may however be objected, that atreatise of this kind is useless in England, where,from the excellence of our laws and government,no examples of cruelty or oppression are to befound. But it must also be allowed, that much isstill wanting to perfect our system of legislation j

the confinement of debtors, the filth and horrorof our prisons, the cruelty of jailors, and theextortion of the petty officers of justice, to allwhich may be added the melancholy reflection,that the number of criminals put to death inEngland is much gfeater than in any other partof Europe, are considerations which will suffi-

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6 PREFACE.

ciently answer every objection. These are myonly reasons for endeavouring to diffuse the knowl-edge of the useful truths contained in this littleessay; and I say, with my author, that if I canbe instrumental in rescuing a single victim fromthe hand of tyranny or ignorance, his transportswill sufficiently console me for the contempt ofall mankind.

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OONTENTS

PAGE.Introduction •..•.•••.•••...•....•..•.. ~. . . .• . . •. . • . . . •• . 11Chap. I. Of the Origin of Punishments..... ••••• ••• ••••••• 15

II. Of the Right to Punish :........ 17III. Consequencesof the foregoing Principles..... • • •• 19IV. Of the Interpretation of Lases •••••••••••••••••• 21V. Of the Obscurityof LatCs........................ 20VI. Of the Proportion betweenCrimesand Punishments, 28VII. Of eBtimatillgthe Degreeof Crimes.............. 33VIII. Of theDhision of Crimes •••• •••• •••• •••• •••• 35 IIIX. Of Honor .. 39X. Of Duelling......................... • ••• •••• •• 42XI. Of Crimeswhich disturb the public Tranquillitf ,.• 44XII. Of the Intent of Punishments.................. 40XIII. Of the Credibility of Wit,lesSes • •••• •••••• •••• 47XIV. Of Evidence and the Proofs of a Crime,and of

the Form of Judgment..... •••• •••• •• •• •••• •••••• 51XV. Of secret.Accusations.••• •••• .. • • .. • • •• •• .. • • •• 55XVI. Of Torture............ 58XVII. Of Pecuniary Punishments.... • • •• ••••••• ••• 08XVIII. OJ Oaths.... •••• ••• •••• 71XIX. Of the .Advantageof immediatePlmishment •••• : 73XX. Of .Acts of Violellce.......... 77XXI. Of tilePunishment of the Nobles... • •••• •••••• 71\

8 CONTENTS.

l'.lG1!l.Ohap. XXII. Of Robbery.................. •••• •• •• •••••• 81

XXIII. Of I1ifamy, considered as a Punishment.. •••• 82XXIV. Of Idleness.. • • • • • • • • .. • • .. • • • • • • • • • • • • .. • • 85XXV. Of Banishment and Oonfiscation......... ..... 86XXVI. Of the Spirit of Family in Stafes •• •• •••• •• • • 89XXVII. Of the Mildnus of Punishmeni« •••• 0.0..... 93XXVIU. Of the Punishment of Death............... 97XXIX. Of Imprisonment 108XXX. Of Prosecution and Prescription. •• • •• • ••• •• •• 111XXXI. Of Orimes of difficult Proof 115XXXII. Of Suicide........ .. 121XXXIII. Of Smuggling 126XXXIV. Of Bankrupts ,.... • .. • .. •• 129XXXV. Of Sanctuaries ~ 133XXXVI. Of Rewards for apprehending or killing Orimi~

nals ••••••••••••••••••••••••••••••••••••••••••• 135XXXVII. Of .Attempts, .Accomplices, anef Pardon ••••• 131XXXVIII. Of Buggestive Interrogations •............. 141XXXIX. Of a ptJrticular Kind of Crimes 143XL. Of false Ideas of Utility 145XLI. Of the Means of preventing Orimes ••••••••••••• 148XLII. Of the Sciences ". . • .• ••• •••••.• 150XLIII. Of Magist/'ates •• ".... •• .. • • .. • • .. • • • • • • • ... 15SXLIV. Of Rewards.. .. • • .. .. • • .... .. • ... • •• 156XLV. Of Education. • ... • • .. • • • • • .. • • .. • ... 157XLVI. 01Pardons. . . • • • •• . . • • • . . . • . • • . . . • ..• • • . • .. 158XLVII. Conclu8ion 4 "~ .. ,, .. .. .. 160

A COMMENTARY ON THE BOOK OF CRIMES AN.p PUNISH-MENTS.

Ohap. I. The Occasion of this O(fTTImentary 163II. Of Punishments "......... 166III. On the Punishment of Heretics." •••••••••••••••• 167IV. On the Extirpation of Heresy 172T" Of Profanation " i 175VI. Of the Indulgence of tIlt Romans in Matters of

Religion ".. ....,. "".. ..........• 180VII. Of the Orimeof Preaching; and of .Anthony •••• 183VIII. The History of Simoo Morin. ••• • • • • •• • • •• •••• 181IX. Of Witches ..........••..••.•.•• _••...••...•... 190X. On tlle Punishment of Death................ .... 193

CONTENTS. 9PAGE.

Chap. XI. On Deaili lVarrallts ••••••••••••••••••••••••••• 195XII. On Torture. • ... • • • • • • • •• •• • • • • •• • • • • • • • • • • •• 197XIII. Of certain sanguinary lHbulials • • •• • • • • • • • • •• 199XIV. On the Difference betzceen Political and Natural

Laws ..................................•....... 202XV. On the Crime of Higll Treason, on Titus Oates,

and on the Death of Augustill de Thou ••••••••••••• 204XVI. On Religious Confession , • • • •• • • • • • • • •• • • • • • •• 20!JXVII. Of false Money 214XVIII. On domestic Theft ••••••••••................ 215XIX. On Suicide. • • • •• • • • • • • • • • • • • •• •• • • • • • • • • • • •• 21GXX. 011 a certain Species of Mutilation •••••••••••••• 21!JXXI. On COtlfiscation 220XXII. On criminal Procedure, and other Forms •••••• 224XXIII. The Idea of Reformation •••••••••••••••••••• 228

2

INTRODUCTION.

IN every humansociety, there is an effort con-tinually tending to confer on one part the heightof power and happiness, and to reduce the otherto the extreme of weakness and misery. Theintent of good laws is to oppose this effort, and todiffuse their influence universally and equally.But men generally abandon the care of their mostimportant concerns tothe uncertain prudence anddiscretion of those, whose interest it is to rejectthe best and wisest institutions; and it is not tillthey have been led into a thousand mistakes, inmatters the most essential to their lives and liber-ties, and are weary of suffering, that they can beinduced to apply a remedy to the evils with which

12 INTRODUCTION.

they are oppressed. It is then they begin to con-ceive, and acknowledge the most palpable truths,which, from their very simplicity, commonly escapevulgar minds, incapable of analysing objects, ac-customed to receive impressions without distinc-tion, and to be determined ruther by the opinionsof others, than by the result of their own exami-nation.

If we look into history we shall find that lawswhich are, or ought to be, conventions betweenmen in a state of freedom, have been, for the mostpart, the work of the passions of a few, or theconsequences of a fortuitous or temporary neces-sity; not dictated by a cool examiner of humannature, who knew how to collect in one point theactions of a multitude, and had this only end inview, t~e greatest happiness of the greatest num?er•.Happy are those few nations who have not waitedtill the slow succession of human vicissitudes

~~L; .

should, from the extremity of evil, produce atransition to good; but, by prudent laws, havefacilitated the progress from one to the other!And how great are the obligations due from man-kind to that philosopher, who, from the obscurityof his closet, had the courage to scatter amongthe multitude the seeds of useful truths, so longunfruitful!

INTRODUCTION. 13The art of printing has diffused the knowledge

of those philosophical truths, by which, the rela-tions between sovereigns and their subjects, andbetween nations, are discovered. By this know-ledge commerce is animated, and there has sprungup a spirit of emulation and industry worthy ofrntional beings. These are the produce of thisenlightened age; but the cruelty of punishments,and the irregularity of proceeding in criminalcases, so principal a part of the legislation, andso much neglected throughout Europe, has hardlyever been called in question. Errors, accumulatedthrough many centuries, have never been exposedby ascending to general principles; nor has theforce of acknowledged truths been ever opposedto the unbounded licentiousness of ill-directed

Ipower, which has continually produced so manyauthorized examples of the most unfeeling bar-barity. Surely, the groans of the weak, sacrificedto the cruel ignorance and indolence of the pow-erful; the barbarous torments lavished and multi-plied with useless severity, for crimes either notproved. or in their nature impossible; the filthand horrors of a prison, increased by the mostcruel tormentor of the miserable, uncertainty,ought to have roused the attention of those, whosebusiness is to direct the opinions of mankind.

14 INTRODUCTION.

The immortal Moniesquieu has but slightlytouched on this subject. Truth, which is eter-nally the same, has obliged me to follow the stepsof that great man; but the studious part of man-kind, for whom I write, will easily distinguish thesuperstructure from the foundation. I. shall behappy, if, with him, I can obtain the secret thanksof the obscure and peaceful disciples of reasonand philosophy, and excite that tender emotion,in which sensible minds sympathise with him whopleads the cause of humanity.

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AN

ESSAY

OK

CRIMES AND PUNISHMENTS.

By M. DE VOLTAIRE.

CHAPTER 1.

OF THE ORIGIN OF PUNISHMENTS.

LAWS are the conditions under which men, natu-rally independent, united themselves in society.Weary of living in a continual state of war, andof enjoying a liberty which became of little value,from the uncertainty of its duration, they sacri-ficed one part of it to enjoy the rest in peace andsecurity. The sum of all these portions of theliberty of each individual constituted the sever-

16 AN ESSAY ON

eignty of a nation; and was deposited in thehands of the sovereign, as the lawful administra-tor. But it was not sufficient only to establishthis deposit; it was also necessary to defend itfrom the usurpation of each individual, who willalways endeavour to take away from the mass,not only his own portion, but to encroach on thatof others. Some motives, therefore, that strikethe senses, were necessary to prevent the despotismof each individual from plunging society into itsformer chaos. Such motives are the punishmentestablished against the infractors of the laws. Isay that motives of this kind are necessary;because experience shews that, the multitudeadopt no established rules of conduct; and because,society is prevented from approaching to thatdissolution (to which, as well as all other parts ofthe physical and moral world, it naturally tends)only by motives that are the Immediate objectsof sense, and which, being continually presentedto the mind, are sufficient to counterbalance theeffects of the passions of the individual whichnppo.se the general good. Neither the power ofeloquence, nor the .sublimest truths, ar-esufficientto restrain, for aJly length of time, those passionswhich are excited by the lively impression ofpresent objects.

CRIMES AND PUNISHMENTS. 17

CHAPTER II.

OF TIlE mGIIT TO PUNISH.

EVERYpunishment which does not arise fromabsolute necessity, says the great Montesquieu, istyrannical. A proposition which may be mademore general, thus. Every act of authority ofone man over another, for which there is not anabsolute necessity, is tyrannical. It is upon this,then, that the sovereign'S right to punish crimesis founded; that is, upon the necessity of defend-ing the public liberty, intrusted to his care, fromthe usurpation of individuals; and punishmentsare just in proportion as the liberty, preserved bythe sovereign, is sacred and valuable.

Let us consult the human heart, and there weshall find the foundation of the sovereign's rightto punish; for no advantage in moral policy canbe lasting, which is not founded on the indeliablesentiments of the heart of man. Whatever lawdeviates from this principle will always meetwith a resistance, which will destroy it in theend; for the smallest force, continually applied,

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•18 AN ESSAY ON

will overcome the most violent motion communi-cated to bodies.

No man ever gnve up his liberty merely forthe good of the public. Such n chimera existsonly in romances. Every individual wishes, ifpossible, to be exempt from the compacts that bindthe rest of mankind.

The multiplication of mankind, though slow,being too great for the means which the earth, inits natural state, offered to satisfy necessities, whichevery day became more numerous, obliged men toseparate again, and form new societies. Thesenaturally opposed the first, and a state of war wastransferred from individuals to nations.

Thus it was necessity that. forced men to giveup a part of their liberty; it is certain, then, thatevery individual would chuse to put into the pub-lic stock the smallest portion possible; as muchonly as was sufficient to engage others to defendit. The aggregate of these, the smallest portionspossible, forms the right of punishing: all thatextends beyond this is abuse, not justice.

Observe, that by justice I understand nothingmore than that bond, which is necessary to keepthe interest of individuals united; without which,men would return to the original state of barbarity.All punishments, which exceed the necessity of

cnnus xxn l'UNISIlMENTS. 19preserving this bond, are in their nature unjust.'Ve should be cautious how we associate with theword justice, an idea of anything 'real, such as aphysical power, or a being that actually exists. Ido not, by any means, speak of the justice of God,which is of another kind, and refers immediatelyto rewards and punishments in a life to come.

CHAPTER III.

COXSEQUEXCES OF TUE FOUEGOING rUINCIl'LES.

THE laws only can determine the punishmentof crimes; and the authority of making penallaws can only reside with the legislator, who rep-resents ~he whole society united by the socialcompact, No magistrate. then, (as he is one ofthe society,) can, with justice, inflict on any othermember of the same society, punishment that isnot ordained by the laws. But as a punishment,increased beyond the degree fixed by the law, isthe just punishment, with the addition of another;it follows, that no magistrate, even under a pre-

20 AN ESSAY ON

tence of zeal, or the public good, should increasethe punishment already determined by the laws.

If every individual be bound to society, societyis equally bound to him by a contract, which, fromits nature, equally binds both parties. This obli-gation, which descends from the throne to thecottage, and equally binds the highest and lowestof mankind, signifies nothing more, than thatit is the interest of all, that conventions, whichare useful to the greatest number, should bepunctually observed. The violation of this com-pact by any individual, is an introduction toanarchy.

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 anyindividual has violated the social compact, orincurred the punishment in consequence. Forin this case there are two parties, one representedby the sovereign, who insists upon the- violationof the contract, and the other is the person accused,who denies it. It is necessary then that thereshould be a third person to decide this contest;that is to say, a judge, or magistrate, from whosedetermination there should be no appeal; and thisdetermination should consist of a simple affirma-tion, or negation of fact.

CRIMES AND PUNISHMENTS. 21If it cq,n only be proved, that the severity of

punishments, though not immediately contraryto the public good, or to the end for which theywere intended, viz., to prevent crimes, be useless j

then such severity would be contrary to thosebeneficent virtues, which are the consequence ofenlightened reason, which instructs the sovereignto wish rather to govern men in a state of free-dom and happiness, than of slavery. It wouldalso be contrary to justice, and the social compact.

CHAPTER IV.

OF THE INTERPRETATION OF LAWB.

JUnGES, in criminal cases, have no right to in ter-pret the penal laws, because they are not legislators.They have not received the laws from our ances-tors as a domestic tradition, or as the will of atestator, which his heirs and executors are toobey; but they receive them from a society act-ually existing, or from the sovereign, its repre-sentative. Even the authority of the laws is not

22 AN ESSAY ON

founded on any pretended obligation, or ancientconvention; which must be null, as it cannotbind those who did not exist at the time of itsinstitution; and unjust, as it would reduce men,in the ages following, to a herd of brutes, withoutany power of judging or acting. The laws recei ve

their force and authority from an oath of fidelity,either tacit or expressed, which living subjectshave sworn to their sovereign, in order to restrainthe intestine fermentation of the pri vate interestsof individuals. From hence springs their trueand natural authority. "Whothen is their lawfulinterpreter 1 The sovereign, that is, the repre-sentative of society, and not the judge, whoseoffice is only to examine, if a man have or havenot, committed an action contrary to the laws.

In every criminal cause the judge should reasonsyllogistically. The major should be the generallaw; the minor the conformity of the ~ction, orits opposition to the laws; the conclusion, libertyor punishment. If the judge be obliged by theimperfection of the laws, or chuses to make anyother, or more syllogisms than this, it will be anintroduction to uncertainty.

There is nothing more dangerous than the com-mon axiom: the spirit of the laws is to be considered.To adopt it is to give way to the torrent of opin-

cntxzs AIm l'U"!S;DICXTS. 23Ions. This may seem a puradox to vulgar minds,which arc more strongly uffcctcd hy the smallestdisorder before their eyes, than by the most per-nicious, though remote, consequences produced byone false principle adopted by a nation.

Our knowledge is in proportion to the numberof our ideas. The more complex these are, thegreater is the variety of positions in which theymay be considered. Every man hath his ownparticular point of view, and at different timessees the same objects ill very different lights.The spirit of the laws will then be the result ofthe good or bad logic of the judge; and this willdepend on his good or bad digestion; on the vio-lence of his passions; on the rank and conditionof the abused, or on his connections with thejudge; and on all those circumstances whichchange the appearance of objects in the fluctuat-ing mind of man. Hence we sec the fate of adelinquent changed many times in passing throughthe different courts of judicature, and his life andliberty victims to the false ideas or ill humourof the judge; who mistakes the vague result 0('

his own confused reasoning, for the just inter-pretation of the laws. 'Ve see the same crimespunished in a different manner at different timesin the flame tribunals; the consequence of not

24. .AN ESSAY ON

having consulted the constant and invariablevoice of the laws, but the erring instability ofarbitrary interpretation.

The disorders that may arise from a rigorousJ •

observance of the letter of penal laws, are not tobe compared with those produced by the interpre-tation of them. The first are temporary incon-veniencies, which will oblige the legislator tocorrect the letter of the law, the want of precise-ness and uncertainty of which has occasionedthese disorders; and this will put a stop to thefatal liberty of explaining; the source of arbi-trary and venal declamations. When the codeof laws is once fixed, it should be observed in theliteral sense, and nothing more is left to the judgethan to determine, whether an action be, or benot, conformable to the written law. When therule of right, which ought to direct the actionsof the philosopher as well as the· ignorant, is amatter of controversy, not of fact, the people areslaves to the magistrates. The despotism of thismultitude of tyrants is more insupportable, theless the distance is between the oppressor and theoppressed ; more fatal than that of one, for thetyranny of many is not to be shaken off, but byhaving recourse to that of one alone. It is morecruel, as it meets with more opposition, and the

CRIl\lES ,HID rUNIsmIE~TS. 25cruelty of a tyrant is not in proportion to hisstrength, but to the obstacles that oppose him.

These are the means by which security ofperson and property is best obtained; which isjust, as it is the purpose of uniting in society;and it is useful, as each person may calculateexactly the inconveniencies attending everycrime. By these means subjects will acquire aspirit of independence and liberty; however itmay appear to those who dare to call the weak-ness of submitting blindly to their capriciousand interested opinions by the sacred name ofvirtue.

These principles will displease those who havemade it a rule with themselves, to transmit totheir inferiors the tyranny they suffer from theirsuperiors.· I should have every thing to fear, iftyrants were to read my book; but tyrants neverread.

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26 AN ESSAY ON

CHAPTER V.

OF THE onscr un-r OF L.\WS.

IF the power of interpreting laws be an evil,obscurity in them must be another, as the formeris the consequence of the latter. This evil willbe still greater, if the laws be written in a Ian-guage unknown to the people; who, being igno-rant of the consequences of their own actions,become necessarily dependent on a few, who areinterpreters of the laws, which, instead of beingpublic and general, arc thus rendered private andparticular. What must we think of mankindwhen we reflect, that such is the establishedcustom of the greatest part of our polished andenlightened Europe? Crimes will he less fre-quent, in proportion as the code of laws is moreuniversally read, and understood; for there is nodoubt, but that the eloquence of the passions isgreatly assisted by the ignorance and uncertaintyof punishments.

Hence it follows, that without written laws, nosociety will ever acquire a fixed form of govern-

CRBIES AND rUNISam:NTS. 27ment, in which the power is vested in the whole,and not in any part of the society; and in whichthe laws are not to be altered but by the will ofthe whole, nor corrupted by the force of privateinterest. Experience and reason shew us, thatthe probability of human traditions diminishes inproportion as they are distant from their sources,How then can laws resist the inevitable force oftime, if there be not a lasting monument of thesocial compact?

Hence we see the use of printing, which alonemakes the public, and not a few individuals, theguardians and defenders of the laws. It is thisart which, by diffusing literature, has graduallydissipated the gloomy spirit of cabal and intrigue.To this art it is owing, that the atrocious crimesof our ancestors, who were alternately slaves andtyrants, are become less frequent. Those whoare acquainted with the history of the two orthree last centuries, may observe, how from thelap of luxury and effeminacy have sprung themost tender virtues, humanity, benevolence, andtoleration of human errors. They may contem-plate the effects of, what was so improperly called,ancient simplicity and good faith; humanitygroaning under implacable superstition; theavarice and ambition of a few, staining with

28 AN ESSAY ON

human blood the thrones and palaces of kings;secret treasons and public massacres; e\'ery noblea tyrant over the people; and the ministers ofthe gospel of Christ bathing their hands in blood,in the name of the God of all mercy. We maytalk as we please of the corruption and degeneracyof the present age. but happily we see no suchhorrid examples of cruelty and oppression.

CHAPTER VI.

OF THE PROPORTION BETWEEN CRIlIES A~D PUNISIIMENTS.I

IT is not only the common interest of mankindthat crimes should not be committed, but thatcrimes of every kind should be less frequent, inproportion to the evil they produce to societyTherefore, the means made use of by the Iegisla-ture to prevent crimes, should be more powerful,in proportion 8S they are destructive of the pub-lic safety and happiness, and 88 the inducementsto commit them are stronger. Therefore there

CRIMES AND PU!'ISmIENTS. 29ought to be a fixed proportion bet ween crrmesand punishments.

It is impossible to prevent entirely all the dis-orders which the passions of mankind cause insociety. These disorders increase in proportionto the number of people, and the opposition ofprivate interests. If we consult history, weshall find them increasing, in every state, withthe extent of dominion. In political arithmetic,it is necessary to substitute a calculation of prob-abilities to mathematical exactness. That forcewhich continually impels us to our own privateinterest, like gravity, acts incessantly, unless itmeet- with an obstacle to oppose it. The effectsof this force are the confused series of humanactions. Punishments, which I would call politi-cal obstacles, prevent the fatal effects of privateinterest, without destroying the impelling cause,which is that sensibility inseparable from man.The legislator acts, in thia case, like a skilfularchitect, who endeavours to counteract the forceof gravity by combining the circumstances whichmay contribute to the strength of his edifice.

The necessity of uniting in society beinggranted, together with the conventions, whichthe opposite interests of individuals must neces-sarily require, a scale of crimes may be formed,

30 AN ESSAY ON

of which the first degree should consi-t of thosewhich immediately tend to the dissolution ofsociety, and the last, of the smallest possibleinjustice done to a private member of thatsociety. Between these extremes will be com-prehended, all actions contrary to the publicgood, which are called criminal, and whichdescend by insensible degrees, decreasing fromthe highest to the lowest. If mathematical cal-culation could be applied to the obscure and infi-nite combinations of human actions, there mightbe a corresponding scale of punishments, descend-ing from the greatest to the least; but it will besufficient that the wise legislator mark the prin-cipal divisions, without disturbing the order, lestto crimes of the first degree, be assigned punish-ments of the last. If there were an exact anduniversal scale of crimes and punishments, weshould then have a common measure of the degreeof liberty and slavery, humanity and cruelty, ofdifferent nations.

Any action, which is not comprehended in theabove mentioned scale, will not he called a crime,or punished as such, except by those who have aninterest in the denomination. The uncertaintyof the extreme points of this scale, hath produceda system of morality which contradicts the laws;

CRIMES AND PUNISHMENTS. 31a multitude of laws that contradict each other;and many which expose the best men to theseverest punishments, rendering the ideas of riceand virtue vague and fluctuating, and even theirexistence doubtful. Hence that tidal lethargyof political bodies, which terminates III theirdestruction.

Whoever reads, with a philosophic eye, thehistory of nations, and their laws, will generallyfind, that the ideas of virtue and vice, of a goodor a bad citizen, change with the revolution ofage8; not in proportion to the alteration of cir-cumstances, and consequently conformable to thecommon good; but in proportion to the passionsand errors by which the different lawgivers weresuccessively influenced. He will frequently ob-serve, that the passions and vices of one age, arethe foundation of the morality of the following;that violent passion, the offspring of fanaticismand enthusiasm, being weakened by time, whichreduces all the phenomena of the natural andmoral world to an equality, become, by degrees,the prudence of the age, and an useful instrumentin the hands of the powerful or artful politician.Hence the uncertainty of our notions of honourand virtue; an uncertainty which will ever remain,because they change with the revolutions of time,

82 AN ESSAY ON

and names survive the things they originally sig-nified; they change with the boundaries of states,which are often the same both in physical andmoral geography.

Pleasure and pain are the only springs of actionin beings endowed with sensibility. Even amongthe motives which incite men to acts of religion,the invisible Legislator has ordained rewards andpunishments. From a partial distribution of thesewill arise that contradiction, so little observed,because so common; I mean, that of punishingby the laws the crimes which the laws have occa-sioned. If an equal punishment be ordained fortwo crimes that injure society in different degrees,there is nothing to deter men from committingthe greater, as often as it is attended with greateradvantage.


CHAPTER VII.

OF ESTIMATI~G THE DEGREE OF CRIMES.

THEforegoing reflections authorise me to assert,that crimes are only to be measured by the injurydone to society.

They err, therefore, who imagine that a crimeis greater, or less, according to the intention ofthe person by whom it is committed; for thiswill depend on the actual impression of objectson the senses, and on the previous disposition ofthe mind; both which will vary in different per-sons, and even in the same person at differenttimes, according to the succession of ideas, pas-sions, and circumstances. Upon that system, itwould be necessary to form, not only a particularcode for every individual, but a new penal lawfor every crime. \ Men, often with the best inten-tion, do the greatest injury to society, and withthe worst, do it the most essential services.

Others have estimated crimes rather by thedignity of the person offended, than by their con-sequences to society. If this were the true stand-

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ard, the smallest irreverence to the divine Beingought to be punished with infinitely more severity,than the assassinat ion of' It monarch.

In short, others have imagined, that the great-ness of the sin should aggravate the crime. Butthe fallacy of this opinion will appear on theslightest consideration of the relations betweenman and man, and between God and man. Therelations between man and man are rei at ions ofequality. Necessity alone hath produced, fromthe opposition of private passions and interests,the idea of public utility, which is the foundationof human justice. The other are relations ofdependence, between an imperfect creature andhis Creator, the most perfect of beings, who hasreserved to himself the sole right of being bothlawgiver and judge; for he alone can, withoutinjustice, be, at the same time, both one and theother. If he hath decreed eternal punishmentsfor those who disobey his will, shall an insectdare to put himself in the place of divine justice,to pretend to punish for the Almighty, who ishimself all-sufficient; who cannot receive impres-sions of pleasure or pain, and who alone, of allother beings, acts without being acted upon 1 Thedegree of sin depends on the malignity of theheart, which is impenetrable to finite being. How

UlES AND PUNISHMENTS. 35

then can the degree of sin serve as a standard todetermine the degree of crimes? If that wereadmitted, men may punish when God pardons,and pardon when God condemns; and thus act inopposition to the Supreme Being.

CHAPTER VIII.

OF THE DIVISION OF CRIMES.

WE have proved, then, that crimes are to beestimated by the z"njury done to sodety. This is oneof those palpable truths, which, though evidentto the meanest capacity, yet, by a combinationof circumstances, are only known to a few think-ing men in every nation, and in every age. Butopinions, worthy only of the despotism of Asia,and passions armed with power and authority,have, generally by insensible and sometimes byviolent impressions on the timid credulity of men,effaced those simple ideas which perhaps consti-tuted the first philosophy of infant society. Hap-pily the philosophy of the present enlightened

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age seems again to conduct us to the same princi-ples, and with that degree of certainty which isobtained by a rational examination, and repeatedexperience.

A scrupulous adherence to order would require,that we should now examine and distinguish thedifferent species of crimes, and the modes ofpunishment; but they are so variable in theirnature, from the different circumstances of agesand countries, that the detail would be tiresomeand endless. It will be sufficient for my purpose,to point out the most general principles, and themost common and dangerous errors, in order toundeceive, as well those who, from a mistakenzeal for liberty, would introduce anarchy and con-fusion, as those who pretend to reduce society ingeneral to the regularity of a convent.

Some crimes are immediately destructive ofsociety, or its representative; others attack theprivate security of the life, property or honourof individuals; and a third class consists of suchactions as are contrary to the laws which relateto the general good of the community.

The first, which are of the highest degree, asthey are most destructive to society, are calledcrimes of Leze-majesty.* Tyranny and ignorance,

• High-treason.

CRIMES AND PUNISHMENTS. •which have confounded the clearest terms andideas, have given this appellation to crimes of n.different nature, and consequently have establishedthe same punishment for each; and on this occa-sion, as on a thousand others, men have beensacrificed victims to a word. Every crime, evenof the most private nature, injures society; butevery crime does not threaten its immediatedestruction. Moral, as well as physical actions,have their sphere of activity differently circum-scribed, like all the movements of nature, by timeand space; it is therefore a sophistical interpre-tation, the common philosophy of slaves, thatwould confound the limits of things established byeternal truth.

To these succeed crimes which are destructiveof the security of individuals. This securitybeing the principal end of all society, and towhich every citizen hath an undoubted right, itbecomes indispensably necessary, that to thesecrimes the greatest of punishments should beassigned.

The opinion, that every member of societyhas a right to do anything that is not contrary tothe laws, without fearing any other inconvenienciesthan those which are the natural consequencesof the action itself, is a political dogma, which

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should be defended by the laws, inculcated bythe magistrates, and believed by the people; asacred dogma, without which there can be nolawful society; a just recompence for our sacri-fice of that universal liberty of action, commonto all sensible beings, and only limited by ournatural powers. By this principle, our mindsbecome free, active and vigorous; by this alonewe are inspired with that virtue which knows nofear, so different from that pliant prudence worthyof those only who can bear a precarious existence.

Attempts, therefore, against the life and libertyof a citizen, are crimes of the highest nature.Under this head we comprehend not on1yassassi-nations and robberies committed by the populace,hut by grandees and magistrates; whose exampleacts with more force, and at a greater distance,destroying the ideas of justice and duty amongthe subjects, and substituting that of the right ofthe strongest, equally dangerous to those whoexercise it, and to those who suffer.

CRIMES AND PUNISHMENTS. 39 •

CHAPTER IX.

OF HONOUR.

THERE is a remarkable difference between thecivil laws, those jealous guardians of life andproperty, and the laws of, what is called, honour,which particularly respects the opinion of others.

Honour is a term which has been the foundationof many long and brilliant reasonings, withoutannexing to it any precise or fixed idea. Howmiserable is the condition of the human mind, towhich the most distant and least essential matters,the revolution of the heavenly bodies, are more dis-tinctly known, than the most interesting truths ofmorality, which are always confused and fluctuat-ing, as they happen to be driven by the gales ofpassion, or received and transmitted by ignorance!But this will cease to appear strange, if it be con-sidered, that as objects, when too near the eye,appear confused, so the too great vicinity of theideas of morality, is the reason why the simpleideas, of which they are composed, are easilyconfounded; but which must be separated, before

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we can investigate the phenomena of humansensibility; and the intelligent observer of humannature will cease to be surprised, that so manyties, and such an apparatus of morality are neces-sary to the security and happiness of mankind.

Honour, then, is one of those complex ideas,which are an aggregate not only of simple ones,but of others so complicated, that, in their variousmodes of affecsing the human mind, they some-times exclude part of the elements of which theyare composed; retaining only some few of themost common, as many algebraic quantities admitone common divisor. To find this common divi-sor of the different ideas attached to the wordhonour, it will be necessary to go back to theoriginal formation of society.

The first laws, and the first magistrates, owedtheir existence to the necessity of preventing thedisorders, which the natural despotism of indi-viduals would unavoidably produce. This wasthe object of the establishment of society, and waseither in reality or in appeaJ:ance, the principaldesign of all codes of laws, even the most perni-cious. But the more intimate connections ofmen, and the progress of their knowledge, gaverise to an infinite number of necessities, andmutual acts of friendship, between the members

CRIMES AND PUNISHMENTS. 41of society. These necessities were not foreseenby the laws, and could not be satisfied by theactual power of each individual. At this epochabegan to be established the despotism of opinion,as being the only means of obtaining those bene-fits which the law could not procure, and of remov-ing those evils against which the laws were nosecurity. It is opinion, that tormentor of thewise and the ignorant, that has exalted the appear-ance of virtue above virtue itself. Hence theesteem of men becomes not only nseful, but neces-sary, to everyone, to prevent his sinking belowthe common level. The ambitious man grasps atit, as being necessary to his designs; the vainman sues for it, as a testimony of his merit; thehonest man demands it as his due; and the mostmen consider it as necessary to their existence.

Honour, being produced after the formation ofsociety, could not be a part of the common deposite,and therefore, whilst we act under its influence,we return, for that instant, to a state of nature,and withdraw ourselves from the laws, which inthis case are insufficient for our protection.

Hence it follows, that in extreme politicalliberty, and in absolute despotism, all ideas ofhonour disappear, or are confounded with others.In the first case, reputation becomes useless from

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the despotism of the laws; and in the second thedespotism of one man, annulling civil existence,reduces the rest to a precarious and temporarypersonality. Honour, then, is one of the funda-mental principles of those monarchies, which area limited despotism, and in these, like revolutionsin despotic states, it is a momentary return to astate of nature, and original equality.

CHAPTER X.

OF DUELJ,ING.

FROM the necessity of the esteem of others,have arisen single combats, and they have beenestablished by the anarchy of the laws. Theyare thought to have been unknown to the ancients;perhaps because they did not assemble in theirtemples, in their theatres, or with their friends,suspiciously armed with swords; and, perhaps,because single combats were a common spectacle,exhibited to the people by gladiators, who wereslaves, and whom freemen disdained to imitate.

CRIMES AND PUNISHl\IENTS. 43In vain have the laws endeavoured to abolish

this custom, by punishing the offenders withdeath. A man of honour, deprived ofthe esteemof others, foresees that he must be reduced, eitherto a solitary existence, insupportable to a socialcreature, or become the object of perpetual insult;considerations sufficient to overcome the fear ofdeath.

What is the reason that. duels are not 80 frequentamong the common people, as amongst the great?Not only because they do not wear swords, butbecause to men of that class reputation is of lessimportance than it is to those of a higher rank,who commonly regard each other with distrustand jealousy.

It may not be without its use to repeat here,what has been mentioned by other writers, viz.,that the best method of preventing this crime is topunish the aggressor, that is, the person who gaveoccasion to the duel, and to acquit him, who,without any fault on his side, is obliged to defendthat, which is not sufficiently secured to him bythe laws.

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CHAPTER XI.

OF CRIMES WHICII DISTFRB TIlE l'UBLlC TRAKQtJILLITY.

ANOTHER class of crimes are those which dis-turb the public tranquillity and the quiet of thecitizens; such as tumults and riots in the publicstreets, which are intended for commerce and thepassage of the inhabitants; the discourses offanatics, which rouse the passions of the curiousmultitude, and gain strength from the number oftheir hearers, who, though deaf to calm and solidreasoning, are always affected by obscure andmysterious enthusiasm.

The illumination of the streets, during thenight, at the public expense; guards stationed indifferent quarters of the city; the plain and moraldiscourses of religion, reserved for the silence andtranquillity of churches, and protected by author-ity; and harangues in support of the interest ofthe public, delivered only at the general meetingsof the nation, in parliament, or where the sovereigncesides; are all means to prevent the dangerouseffects of the misguided passions of the people


These should be the principal objects of the vigi-lance of a magistrate, and which the Frcnch callPolice; but if this magistrate should act in anarbitrary manner, and not in conformity to thecode of laws, which ought to be in the hand ofevery member of the community, he opens a doorto tyranny, which always surrounds the confinesof political liberty.

I do not know of any exception to this generalaxiom, that Every member of the soriety should. knowwhen he is criminal, and when innocent. If censors,and, in general, arbitrary magistrates, be neces-sary in any government, it proceeds from somefault in the constitution. The uncertainty ofcrimes hath sacrificed more victims to secrettyranny, than have ever suffered by public andsolemn cruelty.

What are, in general, the proper punishmentsfor crimes? Is the punishment of death, reallyuseful, or necessary for the safety or good orderof society? Are tortures and torments consist-ent with justice, or do they answer the end proposedby the laws? Which is the best method of pre-venting crimes? Are the same punishments equallyuseful at all times? What influence have they onmanners? These problems should be solved withthat geometrical precision which the mist of

46 AN ESSAY ON

sophistry, the seduction of eloquence, and thetimidity of doubt are unable to resist.

If I have no other merit than that of havingfirst presented to my country, with a greaterdegree of evidence, what other nations havewritten, and are beginning to practise, I shallaccount myself fortunate; but if, by supportingthe rights of mankind and of invincible truth, Ishall contribute to save from the agonies of deathone unfortunate victim of tyranny, or of igno-rance, equally fatal; his blessings, and tears oftransport, will be a sufficient consolation to mefor the contempt of all mankind.

CHAPTER XII.

OF THE INTENT OF PUNISHMENTS.

FROM the foregoing considerations it is evident,that theintent of punishments is not to tormenta sensible being, nor to undo a crime already com-mitted. Is it possible that torments, and uselesscruelty, the instruments of furious fanaticism, or

CRIMES AND PUNISHMENTS. 47of impotency of tyrants, can be authorized by apolitical body 1 which, so far from being influencedby passion, should be the cool moderator of thepassions of individuals. Can the groans of a tor-tured wretch recal the time past, or reverse thecrime he has committed 1

The end of punishment, therefore, is no other,than to prevent others from committing the likeoffence. Such punishments, therefore, and such amode of inflicting them, ought to be chosen, aswill make strongest and most lasting impressionson the minds of others, with the least torment tothe body of the criminal.

CHAPTER XIII.

OP THE CREDIBILITY OP WITNESSES.

To determine exactly the credibility of a wit-ness, and the force of evidence, is an importantpoint in every good legislation. Every man ofcommon sense, that is, everyone whose ideas havesome connexion with each other, and whose sensa-

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tions are conformable to those of other men, maybe a witness; but the credibility of his evidencewill be in proportion as he is interested in declar-ing or concealing the truth. Hence it appears,how frivolous is the reasoning of those, who rejectthe testimony of women on account of their weak-ness; how puerile it is, not to admit the evidenceof those who are under sentence of death, becausethey are dead in law; and how irrational, toexclude persons branded with infamy: for in allthese cases they ought to be credited, when theyhave no interest in giving false testimony.

The credibility of a witness, then, should onlydiminish in proportion to the hatred, friendship,or connexions subsisting between him and thedelinquent. One witness is not sufficient; forwhilst the accused denies what the other affirms,truth remains suspended, and the right that everyone has to be believed innocent, turns the balancein his favour.

The credibility of a witness is the less, as theatrociousness of the crime is greater, from theimprobability of its having been committed; as incases of witchcraft, and acts of wanton cruelty.'I'he writera on penal Iaws have adopted a contraryprinciple, viz., that the credibility of a witness isgreatez. as the crime is more atrocious. Behold

cnnrss AND PUNISHME~TS. 49their inhuman maxim, dictated by the most cruelimbecility. In airocissimis, leoiores conjecture [email protected], ~ lice! judici jura transgredi. Let us trans-late this sentence, that mankind may see one ofthe many unreasonable principles to which theyare ignorantly subject. In the most atrocious crimesthe slightest conjectures are sufficient, and the judge isallowed to exceed the limits of the law. The absurdpractices of legislators are often the effect oftimidity, which is a principal source of the con-tradictions of mankind. The legislators, (or ratherlawyers, whose opinions, when alive, were inter-ested and venal, but which after their deathbecome of decisive authority, and are sovereignarbiters of the lives and fortunes of men), terrifiedby the condemnation of some innocent person,have burdened the law with pompous and uselessformalities, the scrupulous observance of whichwill place anarchical impunity on the throne ofjustice; at other times, perplexed by atrociouscrimes of difficult proof, they imagined them-selves under a necessity of superseding the veryformalities established by themselves; and thus,at one time, with despotic impatience, and atanother with feminine timidity, they transformt~eir solemn judgments into a game of hazard.

But to return. In the case of witchcraft, it

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is much more probable, that a number of menshould be deceived, than that any person shouldexercise a power which God hath refused toevery created being. In like manner, in cases ofwanton cruelty, the presumption is always againstthe accuser, without some motive of fear or hate.There are' no spontaneous or superfluous senti-ments in the heart of man; they are all the resultof impressions on the senses......The credibility of a witness may also be dimin-ished, by his being a member of a private society,whose customs and principles of conduct areeither not known, or are different from those ofthe public. Such a man has not only his ownpassions, but those of the society of which he isa member.

Finally, the credibility of a witness is null,when the question relates to the words of a crim-inal; for the tone of voice, the gesture, all thatprecedes, accompanies and follows the differentideas which men annex to the same words, mayso alter and modify a man's discourse, that it isalmost impossible to repeat them precisely in themanner in which they were spoken. Besides,violent and uncommon actions, such as real crimes,leave a trace in the multitude of circumstancesthat attend them, and in their effects; but words

CRIMES AND PUNISHMENTS. 51remain only in the memory of the hearers, whoare commonly negligent or prejudiced. It is infi-nitely easier then to found an accusation on thewords, than on the actions of a man; for in these,the number of circumstances, urged against theaccused, afford him variety of means of justifi-cation.

CHAPTER XIV.

OF EVIDENCE AND THE PROOFS OF A CRIME, AND OF THEFORM OF J{;DGMENT.

THE following general theorem is of great usein determining the certainty of fact. When theproofs of a crime are dependent on each other,that is, when the evidence of each witness, takenseparately, proves nothing; or when all the proofsare dependent upon one, the number of proofsneither increase nor diminish the probability ofthe fact; for the force of the whole is no greaterthan the force of that on which they depend;and if this fails, they all fall to the ground.When the proofs are independent on each other,

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the probability of the fact increases in proportionto the number of proofs; for the falsehood of onedoes not diminish the veracity of another.

It may seem extraordinary that I speak ofprobability with regard to crimes, which, todeserve a punishment, must be certain. But thisparadox will vanish, when it is considered, that,strictly speaking, moral certainty is only proba-bility; but which is called a certainty, becauseevery man in his senses assents to it from anhabit produced by the necessity of acting, andwhich is anterior to all speculation. That cer-tainty which is necessary to decide that theaccused is guilty, is the very same which deter-mines every man in the most important transac-tions of his life.

The proofs of a crime may be divided into twoclasses, perfect and imperfect. I call those perfectwhich exclude the possibility of innocence;imperfect, those which do not exclude this possi-bility. Of the first, one only is sufficient forcondemnation; of the second, as many arerequired as form a perfect proof: that is to say,that though each of these, separately taken, doesnot exclude the possibility of innocence, it isnevertheless excluded by their union. It shouldbe also observed, that the imperfect proofs of


which the accused, if innocent, might clear him-self, and does not, become perfect.

But it is much easier to feel this moral certaintyof proofs, than to define it exactly. For thisreason, I think it an excellent law which estab-lishes assistants to the principal judge, and thosechosen by lot; for that ignorance, which judgesby its feelings, is less subject to error, than theknowledge of the laws which judges by opinion.Where the laws are clear and precise, the officeof the judge is merely to ascertain the fact. If,in examining the proofs of a crime, acuteness anddexterity be required; if clearness and precisionbe necessary in summing up the result; to judgeof the result itself, nothing is wanting but plainand ordinary good sense, a less fallacious guidethan the knowledge of a judge accustomed to findguilty, and to reduce all things to an artificialsystem, borrowed from his studies. Happy thenation, where the knowledge of the law is not l\

science!It is an admirable law which ordains, that every

man shall be tried by his peers; for when life,liberty and fortune are in question, the sentiments,which a difference of rank and fortune inspire,should be silent; that superiority with which thefortunate look upon the unfortunate, and that

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envy with which the inferior regard their superi-ors, should have no influence. But when thecrime is an offence against a fellow-subject, onehalf of the judges should be peers to the accused,and the other peers to the person offended. Sothat all private interest, which, in spite of our-selves, modifies the appearance of objects, evenin the eyes of the most equitable, is counteracted.and nothing remains to turn aside the directionof truth and the laws. It is also just, that theaccused should have the liberty of excluding acertain number of his judges. Where this libertyis enjoyed for 8 long time, without any instanceto the contrary, the criminal seems to condemnhimself.

All trials should be public, thct opinion, whichis the best, or, perhaps, the only cement of soci-ety, may curb the authority of the powerful, andthe passions of the judge; and that the peoplemay say," We are protected by the laws; weare not slaves;" a sentiment which inspires cour-age, and which is the best tribute to a sovereignwho knows his real interest. I shall not enterinto particulars. There may be some personswho expect that I should say all that can be saidupon this subject; to such, what I have alreadywritten must be unintelligible.

,

CRIMESANDPUNISHMENTS. 55

CHAPTER XV.

0.' SECRET ACCUSATIONS.

SECRETaccusations are a manifest abuse, butconsecrated by custom in many nations, where,from the weakness of the government, they arenecessary. This custom makes men false andtreacherous. Whoever suspects another to be aninformer, beholds in him an enemy; and, fromthence, mankind are accustomed to disguise theirreal sentiments; and from the habit of concealingthem from others, they at last even hide themfrom themselves. Unhappy are those, who havearrived at this point! Without any certain andfixed principles to guide them, they fluctuate inthe vast sea of opinion, and are busied only inescaping the monsters which surround them; tothose, the present is always embittered by theuncertainty of the future; deprived of the plea-sures of tranquillity and security, some fleetingmoments of happiness, scattered thinly throughtheir wretched lives, console them for the miseryof existing. Shall we, amongst such men, find

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intrepid soldiers to defend their king and country 1Amongst such men shall we find incorruptiblemagistrates, who, with the spirit of freedom andpatriotic eloquence, will support and explain thetrue interest of their sovereign; who, with thetributes, offer up at the throne the love and bless-ing of the people, and thus bestow on the palacesof the great, and the humble cottage, peace andsecurity; and to the industrious a prospect ofbettering their lot, that useful ferment and vitalprinciple of states?

Who can defend himself from calumny, armedwith tLatimpenetrable shield of tyranny, secrecy 7What a miserable government must that be, wherethe sovereign suspects an enemy in every subject,and, to secure the tranquillity of the public, isobliged to sacrifice the repose of every individual 1

By what arguments is it pretended, that secretaccusations may be justified 1 The public safety,say they, and the security and maintenance ofthe established form of government. But whata strange constitution is that, where the govern-ment, which hath in its favour not only powerbut opinion, still more effieacious, yet fears itsown subjecta 1 The indemnity oj the informer. Donot the laws defend him sufficiently; and arethere subjects more powerful than the laws 1 The


necessity of protecting the informer from infamy.When secret calumny is authorised, and punishedonly when public. The nature of the crime. Ifactions, indifferent in themselves, or even usefulto the public, were called crimes, both the accu-sation and the trial could never be too secret.But can there be any crime, committed againstthe public, which ought not to be publicly pun-ished? I respect all governments; and I speaknot of anyone in particular. Such may some-times be the nature of circumstances, that whenabuses are inherent in the constitution, it may beimagined, that to rectify them, would be todestroy the constitution itself. But were I todictate new laws in a remote corner of the uni-verse, the good of posterity, ever present to mymind, would hold back my trembling hand, andprevent me from authorising secret accusations.

Public accusations, says Moniesquieu, are moreconformable to the nature of a republic, wherezeal for the public good is the principal passionof a citizen, than of a monarchy, in which, asthis sentiment is very feeble, from the nature ofthe government, the best establishment is that ofcommissioners, who, in the name of the public,accuse the infractors of the laws. But in allgovernments as well in a republic as in a mon-

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archy, the punishment, due to the crime of whichone accuses .another, ought to be inflicted on theinformer.

CHAPTER XVI.OF TOltTURE.

THE torture of a criminal, during the course ofhis trial, is a cruelty, consecrated by custom inmost nations. It is used with an intent either tomake him confess his crime, or explain some con-tradictions. into which he had been led during hisexamination; or discover his accomplices; or forsome kind of metaphysical and incomprehensiblepurgation of infamy; or, finally, in order to dis-cover other crimes, of which he is not accused,but of which he may be guilty.

No man can be judged a criminal until he befound guilty; nor can society take from him thepublic protection, until it have been proved thathe has violated the conditions on which it wasgranted. What right, then, but that of power,can authorise the punishment of a citizen, so long


8.8 there remains any doubt of his guilt? Thedilemma is frequent. Either he is guilty, or notguilty. If guilty, he should only suffer the pun-ishment ordained by the laws, and torture becomesuseless, as his confession is unnecessary. If he benot guilty, you torture the innocent; for, in theeye of the law, every man is innocent, whosecrime has not been proved. Besides, it is con-founding all relations, to expect that a man shouldbe both the accuser and accused; and that painshould be the test of truth, as if truth resided inthe muscles and fibres of a wretch in torture. Bythis method, the robust will escape, and the feeblebe condemned. These are the inconveniencies ofthis pretended test of truth, worthy only of a can-nibal; and which the Romans, in many respectsbarbarous, and whose savage virtue has been toomuch admired, reserved for the slaves alone.

What is the political intention of punishments 1To terrify, and to be an example to others. Isthis intention answered, by thus privately tortur-ing the guilty and the innocent 1 It is doubtlessof importance, that no crime should remainunpunished; but it is useless to make a publicexample of the author of a crime hid in darkness.A crime already committed, and for which therecan be no remedy, can only be punished by a.

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political society, with an intention that no hopesof impunity should induce others to commit thesame. If it be true, that the number of those,who, from fear or virtue, respect the laws, isgreater than of those by whom they are violated,the risk of torturing an ir.nocent person is greater,as there is a greater probability that, ceteris pari-bus, an individual hath observed, than that he hathinfringed the laws.

There is another ridiculous motive for torture,namely, to purge a man from infamy. Ought suchan abuse to be tolerated in the eighteenth century 1Can pain, which is a sensation, have any connec-tion with a moral sentiment, a matter of opinion 1Perhaps the rack may be considered as a refiner'sfurnace.

It is not difficult to trace this senseless law toits origin; for an absurdity, adopted by a wholenation, 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 80 generally influenced. Weare taught byour infallible church, that those stains of sin, con-tracted through human frailty, and which havenot deserved the eternal anger of the Almighty,are to be purged away, in another life, by an

CRIMES A.KD I'U.KISHMENTS. 61incomprehensible fire. Now infamy IS a stain,and if the punishments and fire of purgatory cantake away all spiritual stains, why should not thepain of torture take away those of a civil nature ?I imagine that the confession of a criminal, whichin some tribunals is required, as being essential tohis condemnation, has a similar origin, and hasbeen taken from the mysterious tribunal ofpenitence, where the confession of sins is a neces-sary part of the sacrament. Thus have menabused the unerring light of revelation; and inthe times of tractable ignorance, having no other,they naturally had recourse to it on every occa-sion, making the most remote and absurd applica-tions. Moreover, infamy is a sentiment regulatedneither by the laws nor by reason, but entirely byopinion. But torture renders the victim infamous,and therefore cannot take infamy away.

Another intention of torture is, to oblige thesupposed criminal to reconcile the contradictionsinto which he may have fallen during his exami-nation; as if the dread of punishment, the uncer-tainty of his fate, the solemnity of the court, themajesty of the judge, and the ignorance of theaccused, were not abundantly sufficient to accountfor contradictions, which are so common to meneven in a state of tranquillity; and which must

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necessarily be multiplied by the perturbation ofthe mind of a man, entirely engaged in thethought of saving himself from imminent danger.

This infamous test of truth is a remaining mon-ument of that ancient and savage legislation, inwhich trials by fire, by boiling water, or theuncertainty of combats, were called judgments ofGod; as if the links of that eternal chain, whosebeginning is in the breast of the first cause of allthings, could never be disunited by the institutionsof men. The only difference between torture, andtrials by fire and boiling water, is, that the eventof the first depends on the will of the accused;and of the second, on a fact entirely physical andexternal ~ but this difference is apparent only, notreal. A man on the rack, in the convulsions oftorture, has it as little in his power to declare thetruth, as, in former times, to prevent, withoutfraud, the effect of fire or of boiling water.

Every act of the will is invariably in propor-tion to the force of the impression on our senses.The impression of pain, then, may increase tosuch a degree, that, occupying the mind entirely,it will compel the sufferer to use the shortestmethod of freeing himself from torment. Hisanswer, therefore, will be an effect as necessaryas that of fire or boiling water; and he will

CRIMES A!<i'D l'UNISH)IENTS. 63accuse himself of crimes of which he is innocent.So that the very means employed to distinguishthe innocent from the guilty, will most effectuallydestroy all difference between them.

It would be superfluous to confirm these reflec-tions by examples of innocent persons, who fromthe agony of torture have confessed themselvesguilty: innumerable instances may be found innll nations, and in every age. How amazing, thatmankind have always neglected to draw thenatural conclusion! Lives there a man who, ifhe have carried his thoughts ever so little beyondthe necessities of life, when he reflects on suchcruelty, is not tempted to fly from society, andreturn to his natural state of independence?

The result of torture, then, is a matter of calcu-tion, and depends on the constitution, which differsin every indi vid ual, and is in proportion to hisstrength and sensibility; so that to discover truthby this method, is a problem which may be betterresol ved by a mathematician than a judge, andmay be thus stated: The force of the muscles, andthe sensibility of the nerves of an innocent person beinggiven, it is required to find the degree rtf pain neces-sary to make him confess himself guilty of a givencrime.

The examination of the accused is intended to

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find out the truth; but if this be discovered withso much difficulty, in the air, gesture, and counte-nance of a man at ease, how can it appear in acountenance distorted by the convulsions oftorture. Every violent action destroys thosesmall alterations in the features, which sometimesdisclose the sentiments of the heart.

These truths were known to the Roman legis-lators, 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, superi-ority in commerce, riches and power, its naturalconsequences, together with the numerous exam-ples of virtue and courage, leave no doubt of theexcellence of its laws. They have been acknowl-edged in Sweden, where torture has been abolished.They are known to one of the wisest monarchsin Europe, who, having seated philosophy on thethrone, by his beneficent legislation, has madehis subjects free, though dependent on the laws; theonly freedom that reasonable men can desire inthe present state of things. In short, torturehas not been thought necessary in the laws ofarmies, composed chiefly of the dregs of mankind,where its use should seem most necessary. Strangephenomenon! that a set of men, hardened by

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CRIMES AND PUNISHMENTS. 65slaughter, and familiar with blood, should teachhumanity to the sons of peace.

It appears also, that these truths were known,though imperfectly, even to those by whom tor-ture has been most frequently practised; for aconfession made during torture is null, if it benot afterwards confirmed by an oath; which, ifthe criminal refuses, he is tortured again. Somecivilians, and some nations, permit this infamouspetitio principii to be only three times repeated,and others leave it to the discretion of the judge;and therefore of two men equally innocent orequally guilty, the most robust and resolute willbe acquitted, and the weakest and most pusillani-mous will be condemned, in consequence of thefollowing excellent method of reasoning. I, thejudge, must find some one guilty. Thou, who art astrong felloui; hast been able to resist the force of tor-ment; therefore I acquit thee. Thou, being weaker,hath yielded to it; I therefore condemn thee. I amsensible, that the confession which was extorted fromthee, has "0 weight: hut if tbou dost rwt confirm byoath whoJ thou hast already confessed, I will have theetormented again.

A very strange but necessary consequence ofthe use of torture, is that the ease of the innocentis worse than that of the guilty. With regard to

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the first, either he confesses the crime, which hehas not committed, and is condemned; or he isacquitted, and has suffered a punishment he didnot deserve. On the contrary, the person who isreally guilty has the most favourable side of thequestion; for if he supports the torture with firm-ness and resolution, he is acquitted, and hasgained, having exchanged a greater punishmentfor a less.

The law by which torture is authorised, says,Men, be insensible to pain. Nature has indeed givenyou an irresistible self-love, and an unalienable rightof self-preservation, but I create in you a contrary sen-timent, an heroical hatred of yourselves. I commandymt to accuse yourselves, and to declare the truth,midst the tearing of your flesh and the dislocation ofyour bones.

Torture is used to discover, whether the crim-inal be guilty of other crimes besides those ofwhich he is accused: which is equivalent to thefollowing reasoning: Thou art guilty of one crime,therefore it is possible that thou mayst have committeda thousand others: but the affair being doubtfid, 1must try it by my criterion of truth. The laws orderthee to be tormented, because thou art guilty, becausethou mayst be guilty, and because I chuse thou slwuldst

be guilty.


Torture is used to make the criminal discoverhis accomplices; but if it has been demonstratedthat it is not a proper means of discovering truth,how can it serve to discover the accomplices,which is one of the truths required. Will notthe man who accuses himself, yet more readilyaccuse others? Besides, is it just to torment oneman for the crime of another? May not theaccomplices be found out by the examination ofthe witnesses, or of the criminal; from the evi-dence, or from the nature of the crime itself; inshort, by all the means that have been used toprove the guilt of the prisoner? The accomplicescommonly fly when their comrade is taken. Theuncertai~ty of their fate condemns them to per-petual exile, and frees society from the danger offurther injury; whilst the punishment of thecriminal, by deterring others, answers the purposefor which it was ordained.

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CHAPTER XVII.

OF PECUNIARY PUNISHMENTS.

THEREwas a time when all punishments werepecuniary, The crimes of the subjects were theinheritance of the prince. An injury done tosociety was a favour to the crown; and the sover-eign and magistrates, those guardians of the pub-lic security, were interested in the violation ofthe laws, Crimes were tried, at that time, in a.court of Exchequer, and the cause became a. civilsuit between the person accused and the crown.The magistrate then had other powers than wereneoessaryfor the public welfa.re, and the criminalsuffered other punishments than the necessity ofexample required. The judge was rather a col-lector for the crown, an agent for the treasury,than a protector and minister of the laws, But,according to this system, for a. man to confesshimself guilty, was to acknowledge himself adebtor to the crown; which was, and is at present(the effects continuing after the causes have ceased)the intent of a.11criminal causes. Thus, the crim-


inal who refuses to confess his crime, though con-victed by the most undoubted proofs, will suffer 8i

less punishment than if he had confessed j and hewill not be put to the torture to oblige him to con-fess other crimes which he might have committed,as he has not confessed the prineipal. But theconfession being once obtained, the judge becomesmaster of his body, and torments him with a studiedformality, in order to squeeze out of him all theprofit possible. Confession, then, is allowed to bea convincing proof, especially when obtained bythe force of torture; at the same time that anextra-judicial confession, when a man is at caseand under no apprehension, is nut sufficient for hiscondemnation.

All inquiries, which may serve to clear up thefact, but which may weaken the pretensions ofthe crown, are excluded. It was not from com-passion to the criminal, or from considerations ofhumanity, that torments were sometimes spared,but out of fear of losing those rights which atpresent appear chimerical and inconceivable.The judge becomes an enemy to the accused, to awretch, a prey to the horrors of a dungeon, totorture, to death, and an uncertain futurity, moreterrible than all; he inquires not into the truthof the fact, but the nature of the crime; he lays

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snares to make him convict himself; he fears, lesthe should not succeed in finding him guilty, andlest that infallibility which every man arrogatesto himself should be called in question. It is inthe power of the magistrate to determine, whatevidence is sufficient to send a man to prison;that he may be proved innocent, he must first besupposed guilty. This is what is called an offen-sive prosecution; and such are all criminal proceed-ings, in the eighteenth century, in all parts of ourpolished Europe. The true prosecution for infor-mation: that is, an impartial inquiry into the fact,that which reason prescribes, which military lawsadopt, and which Asiatic despotism allows insuits of one subject against another, is very littlepracticed in any courts of justice. What a laby-rinth of absurdities! Absurdities which will ap-pear incredible to happier posterity. The philos-opher only will be able to read, in the nature ofman, the possibility of there ever having beensuch a system.

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CHAPTER XVIII.

OF OATHS.

THEREis a palpable contradiction between thelaws and the natural sentiments of mankind, inthe case of oaths which are administered to acriminal to make him speak the truth, when thecontrary is his greatest interest. As if u mancould think himself obliged to contribute to hisown destruction; and as if, when interest speaks,religion was not generally silent; religion, whichin all ages hath, of all other things, been mostcommonly abused; and indeed, upon what motiveshould it be respected by the wicked, when it hasbeen thus violated by those who were esteemedthe wisest of men 1 The motives which religionopposes to the fear of impending evil, and thelove of life, are too weak, as they are too distant,to make any impression on the senses. Theaffairs of the other world are regulated by lawsentirely different from those by which humanaffairs are directed; why then should we endea-vour to compromise matters between them? Why

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should a man be reduced to the terrible alterna-tive, either of offending God, or of contributingto his own immediate destruction 1 The lawswhich require an oath in such a case, leave himonly the choice of becoming a bad christian or amartyr. For this reason, oaths become bydegrees a mere formality, and all sentiments ofreligion, perhaps the only motive of honesty inthe greatest part of mankind, are destroyed.Experience proves their utility: I appeal to everyjudge, whether he has ever known that an oathalone has brought truth from the lips of a crimi-nal; and reason tells us, it must be so; for alllaws are useless, and, in consequence, destructive,which contradict the natural feelings of mankind.Such laws are like a dyke, opposed directly tothe course of a torrent; it is either immediatelyoverwhelmed, or by a whirlpool formed by itselfit is gradually undermined and destroyed.


•CHAPTER XIX.

OF THE ADVANTAGE OF IMMEDIATE PUNISHMEXT.

THE more immediately, after the commissionof a crime, a punishment is inflicted, the morejust and useful it will be. It will be more just,because it spares the criminal the cruel and super-fluous torment of uncertainty, which increases inproportion to the strength of his imagination andthe sense of his weakness; and because the priva-tion of liberty, being a punishment, ought to beinflicted before condemnation, but for as short atime as possible. Imprisonments, I say, beingonly the means of securing the person of theaccused, until he be tried, condemned or acquit-ted, ought not only to be of short duration, butattended with as little severity as possible. Thetime should be determined by the necessary pre-paration for the trial, and the right of priority inthe oldest prisoners. The confinement ought notto be closer than is requisite to prevent his flight,or his concealing the proofs of the crime; andthe trial should be conducted with all possible

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expedition. Can there be a more cruel contrastthan that between the indolence of a judge, andthe painful anxiety of the accused; the comfortsand pleasures of an insensible magistrate, and thefilth and misery of the prisoner 1 In general, asI have before observed, The degree of the punish-ment, and the consequences qf a crime, ought to be socontrived, as to have the greatest possible effect onothers, with the least possible pain to the delinquent. Ifthere be any society in which this is not a funda-mental principle, it is an unlawful society; formankind, by their union, originally intended tosubject themselves to the least evils possible.

An immediate punishment is more useful;because the smaller the interval of time betweenthe punishment and the crime, the stronger andmore lasting will be the association of the twoideas of Crime and Punishment: so that they maybe considered, one as the cause, and the other asthe unavoidable and necessary effect. It is dem-onstrated, that the association of ideas is thecement which unites the fabric of the humanintellect; without which, pleasure and pain wouldbe simple and ineffectual sensations. The vulgar,that is, all men who have no general ideas or uni-versal principles, act in consequence of the mostimmediate and familiar associations; but the more

CRIMES AND PUNISHMENTS. 75remote and complex only present themselves tothe minds of those who are passionately attachedto a single object, or to those of greater under-standing, who have acquired an habit of rapidlycomparing together a number of objects, and offorming a conclusion; and the result, that is, theaction, in consequence, by these means, becomesless dangerous and uncertain.

It is, then, of the greatest importance, that thepunishment should succeed the crime, as immedi-ately as possible, if we intend, that, in the rudeminds of the multitude, the seducing picture ofthe advantage arising from the crime, shouldinstantly awake the attendant idea of punish-ment. Delaying the punishment serves only toseparate these two ideas; and thus affects theminds of the spectators rather as being a terriblesight than the necessary consequence of a crime;the horror of which should contribute to heightenthe idea of the punishment.

There is another excellent method of strength-ening this important connection between the ideasof crime and punishment; that is, to make thepunishment as analagous as possible to the natureof the crime; in order that the punishment maylead the mind to consider the crime in a dif-ferent point of view, from that in which it was

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placed by the flattering idea of promised advan-tages.

Crimes of less importance are commonly pun-ished, either in the obscurity of a prison, or thecriminal is transported, to give, by his slavery, anexample to societies which he never offended; anexample absolutely useless, because distant fromthe place where the crime was committed. Mendo not, in general, commit great crimes deliber-ately, but rather in a sudden gust of passion ; andthey commonly look on the punishment due toa great crime as remote and improbable. Thepublic punishment, therefore, of small crimes willmake a greater impression, and, by deterring menfrom the smaller, will e1l'ectually prevent thegreater.


CHAPTER XX.

OP ACTS OP VIOLENCE.

SOME crimes relate to persun, others to property.The first ought to be punished corporally. Thegreat and rich should by no means have it in theirpower to set a price on the security of the weakand indigent; for then, riches, which, under theprotection of the laws, are the reward of indus-try, would become the aliment of tyranny. Lib-erty is at an end, whenever the laws permit, that,in certain cases, a man may cease to be a persun,and become a thing. Then will the powerful em-ploy their address to select from the various com-binations of civil society, all that is in their ownfavour. This is that magic art which transformssubjects into beasts of burden, and which, in thehands of the strong, is the chain that binds thethe weak and incautious. Thus it is, that in somegovernments, where there is all the appearanceof liberty, tyranny lies concealed, and insinuatesitself into some neglected corner of the constitu-tion, where it gathers strength insensibly. Man-

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kind generally oppose, with resolution, the assaultsof barefaced and open tyranny; but disregard thelittle insect that gnaws through the dyke, andopens a sure, though secret, passage to inundation.

CHAPTER XXI.

OF THE PUNISHMENT OF THE NOBLES.

WHAT punishments shall be ordained for thenobles, whose privileges make so great a part ofthe laws of nations 1 I do not mean to inquirewhether the hereditary distinction between noblesand commoners be useful in any government, ornecessary in a monarchy; or whether 'it be true,that they form an intermediate power, of use inmoderating the excesses of both extremes; orwhether they be not rather slaves to their ownbody, and to others, confining within a verysmall circle the natural effects and hopes of indus-try, like those little fruitful spots scattered hereand there in the sandy deserts of Arabia; or


whether it be true that a subordination of rankand condition is inevitable, or useful in society;and if so, whether this subordination should notrather subsist between individuals than particularbodies; whether it should not rather circulatethrough the whole body politic, than be confinedto one part; and rather than be perpetual, shouldit not be incessantly produced and destroyed. Bethese as they may, I assert that the punishmentof a nobleman should in no wise differ from thatof the lowest member of society.

Every lawful distinction, either in honours orriches, supposesprevious equality, founded on thelaws, on which all the members of society areconsidered as being equally dependent. We shouldsuppose that men, in renouncing their naturaldespotism, said, the wisest and most industrious amongus shall obtain the greatest honours, and his dignityshall descend to his posterity. The fortunate and happymay hope for greater honours, but let him not there-fore be less afraid than others of violating those con-ditions on which he is exalted. It is true, indeed,that no such decrees were ever made in a generaldiet of mankind, but they exist in the invariablerelations of things: nor do they destroy the ad-vantages which are supposed to be produced bythe class of nobles, but prevent the inconven-

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iencies; and they make the laws respectable bydestroying all hopes of impunity.

It may be objected, that the same punishmentinflicted on a. nobleman and a plebeian, becomesreally different from the difference of their edu-cation and from the infamy it reflects on an illus-trious family; but I answer, that punishmentsare to be estimated, not by the sensibility of thecriminal, but by the injury done to society; whichinjury is augmented by the high rank of the offen-der. The precise equality of a punishment cannever be more than external, as it is in proportionto the degree of sensibility, which differs in everyindividual. The infamy of an innocent familymay be easily obliterated by some public demon-strati on of favour from the sovereign; and formshave always more influence than reason on thegazing multitude.

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CHAPTER XXIL

OF ROBBERY.

THE punishment of robbery, not accompaniedwith violence, should be pecuniary. He who en-deavours to enrich himself with the property ofanother, should be deprived of part of his own.But this crime, alas! is commonly the effect ofmisery and despair; the crime of that unhappypart of mankind, to whom the right of exclusiveproperty, a terrible, and perhaps unnecessaryright, has left but a bare existence. Besides, aspecuniary punishment may increase the numberof poor, and may deprive an innocent family ofsubsistence, the most proper punishment will bethat kind of slavery, which alone can be calledjust; that is, whioh makes the society, for a time,absolute master of the person and labour of thecriminal, in order to oblige him to repair, by thisdependence, the unjust despotism he usurped overthe property of another, and his violation of thesocial compact.

When robbery is attended with violence, cor-11

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poral punishment should be added to slavery.Many writers have shown the evident disorderwhich must arise from not distinguishing the pun-ishment due to robbery with violence, and thatdue to theft, or robbery committed with dexterity,absurdly making a sum of money equivalent to aman's life. But it can never be superfluous torepeat, again and again, those truths of whichmankind have not profited; for political machinespreserve their motion much longer than others,and receive a new impulse with more difficulty.These crimes are in their nature absolutely differ-ent, and this axiom is as certain in politics asin mathematics, that between qualities of differ-ent natures there can be no similitude.

CHAPTER XXIII.

OF INFAMY, CONSIDERED AS A PUNISHMENT.

THOBE injuries, which affect the honour, thatis, that just portion of esteem which every citizenhas a right to expect from others, should be pun-ished with infamy. Infamy is a mark of the

CRIMES AND PUNISHMENTS. 83public disapprobation, which deprives the objectof all consideration in the eyes of his fellow citi-zens, of the confidence of his country, and of thatfraternity which exists between members of thesame society. This is not always in the powerof the laws. It is necessary that the infamy in-flicted by the laws should be the same with thatwhich resul ts from the relations of things, fromuniversal morality, or from that particular system,adopted by the nation and the laws, which governsthe opinion of the vulgar. If, on the contrary,one be different from the other, either the lawswill no longer be respected,or the received notionsof morality and probity will vanish in spite ofthe declamations of moralists, which are weak toresist the force of example. If we declare thoseactions infamous, which are in themselves indif-ferent, we lessen the infamy of those which arereally infamous.

The punishment of infamy should not be toofrequent, for the power of opinion grows weakerby repetition; nor should it be inflicted ona num-ber of persons at the same time, for the infamyof many resolves itself into the infamy of none.

Painful and corporal punishments should neverbe applied to fanaticism; for being founded onpride, it glories in persecution. Infamy and ridi-

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cule only should be employed against fanatics; ifthe first, their pride will be overbalanced by thepride of the people; and we may judge of thepower of the second, if we consider that eventruth is obliged to summon all her force, whenattacked by error armed with ridicule. Thus,by opposing one passion to another, and opinionto opinion, a wise legislator puts an end to theadmiration of the populace, occasioned by a falseprinciple, the original absurdity of which is veiledby some well-deduced consequences.

This is the method to avoid confounding theimmutable relations of things.or opposing nature,whose actions not being limited by time, but op-erating incessantly, overturn and destroy all thosevain regulations which contradict her laws. Itis not only in the fine arts that the imitation ofnature is the fundamental principle; it is thesame in sound policy, which is no other than theart of uniting, and directing to the same end, thenatural and immutable sentiments of mankind.


CHAPTER XXIV.

OF mUi:NESS.

A WISE government will not suffer, in the midstof labour and industry, that kind of political idle-ness which is confounded, by rigid declaimers,with the leisure attending riches acquired byindustry, which is of use to an increasing society,when confined within proper limits. I call thosepolitically idle, who neither contribute to thegood of society by their labour nor their riches;who continually accumulate, but never spend;and are reverenced by the vulgar with stupidadmiration, and regarded by the wise with disdain;who, being victims to a monastic life, and deprivedof all incitement to the activity which is neces-sary to preserve or increase its comforts, devoteall their vigour to passions of the strongest kind,the passions of opinion. I call him not idle,who enjoys the fruits of the virtues or vices ofhis ancestors, and in exchange for his pleasuressupports the industrious poor. It is not then the

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narrow virtue of austere moralists, but the laws,that should determine what species of idlenessdeserves punishment.

CHAPTER XXV.

OF BANISHMENT, AND CONFISCATION.

HE who disturbs the public tranquillity, whodoesnot obey the laws, who violates the conditionson which men mutually support and defend eachother, ought to be excluded from society, that is,banished.

It seems as if banishment should be the pun-ishment of those, who, being accused of an atro-cious crime,. are probably, but not certainly,guilty. For this purpose would be required a.law, the least arbitrary, and the most precise pos-sible; which should condemn to banishmentthose who have reduced the community to thefatal alternative, either of fearing or punishingthem unjustly; still, however, leaving them thesacred right of proving their innocence. The


reasons ought to be stronger for banishing a citi-zen than a stranger, and for the first accusationthan for one who hath been often excused.

Should the person who is excluded for everfrom society be deprived of his property? Thisquestion may be considered in different lights.The confiscation of effects, added to bnnishmcnt,1S a greater punishment than banislunent alone;there ought then to be some cases, in which,according to the crime, either the whole fortuneshould be confiscated, or part only, or none at all.The whole- should be forfeited, when the law,which ordains banishment, declares, at the sametime, that all connections between the society andthe criminal are annihilated. In this case, thecitizen dies, the man only remains; and withrespect to a political body, the death of the citizenshould have the same consequences with the deathof the man. It seems to follow, then, that in thiscase, the effects of the criminal should devolve tohis lawful heirs. But it is not on account of thisrefinement that I disapprove of confiscations. Ifsome have insisted that they were a restraint tovengeance, and the violence of particulars, theyhave not reflected, that though punishments beproductive of good, they are not, on that account,more just; to be just, they must be necessary.

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Even an useful injustice can never be allowedby a legislator, who means to guard against watch-ful tyranny; which, under the Battering pretextof momentary advantages, would establish per-manent principles of destruction, and, to procurethe ease of a few in a high station, would drawtears from thousands of the poor.

The law which ordains confiscations, sets aprice on the head of the subject, with the guiltypunishes the innocent, and by reducing them toindigence and despair, tempts them to becomecriminal. Can there be a more melancholy spec-tacle, than a whole family, overwhelmed withinfamy and misery, from the crime of their chief?a crime, which if it had been possible, they wererestrained from preventing, by that submissionwhich the laws themselves have ordained.


CHAPTER XXVI.

OF THE SPIRIT OF FAMILY IN STATES.\

IT is remarkable, that many fatal acts of injus-tice have been authorised and approved, even bythe wisest and most experienced men, in thefreest republics. This has been owing to theirhaving considered the state, rather as a societyof families, than of men. Let us suppose a nation,composed of an hundred thousand men, dividedinto twenty thousand families of five personseach, including the head or master of the family,its representative. If it be an association offamilies, there will be twenty thousand men, andeighty thousand slaves; if of men, there will bean hundred thousand citizens, and not one slave.In the first case we behold a republic, and twentythousand little monarchies, of which the heedsare the sovereigns; in the second, the spirit ofliberty will not only breathe in every public placeof the city, and in the assemblies of the nation,but in private houses, where men find the great-est part of their happiness or misery. As laws

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and customs are always the effect of a republic,if the society be an association of the heads offamilies, the spirit of monarchy will graduallymake its way into the republic itself, as its effectswill only be restrained by the opposite interestsof each; and not by an universal spirit of libertyand equality. The private spirit of family is aspirit of minuteness, and confined to little con-cerns. Public spirit, on the contrary, is influencedby general principles, and from facts deduces gen-eral rules of utility to the greatest number.

In a republic of families, the children remainunder the authority of the father, as long as helives, und are obliged to wait until death for anexistence dependent on the laws alone. Accus-tomed to kneel and tremble in their tender years,when their natural sentiments were less restrainedby that caution, obtained by experience, which iscalled moderation, how should they resist thoseobstacles, which vice always opposes to virtue, inthe languor and decline of age, when the despairof reaping the fruits is alone sufficient to dampthe vigour of their resolutions.

In a republic, where every man is a citizen,family subordination is not the effect of compul-sion, but of contract; and the sons, disengagedfrom the natural dependence, which the weakness

CRIMES AND PUNISHMEKTS. 91of infancy and the necessity of education required,become free members of society, but remain sub-ject to the head of the family for their own ad-'Vantage, as in the great society.

In a republic of families, the young people,that is, the most numerous and most useful partof the nation, are at the discretion of their fath-ers: in a republic of men, they are attached totheir parents by no other obligation, than thatsacred and inviolable one of mutual assistance,and of gratitude for the benefits they have re-ceived; a sentiment, destroyed not so much bythe wickedness of the human heart, as by a mis-taken subjection, prescribed by the laws.

These contradictions between the laws of fami-lies, and the fundamental laws of a state, are thesource of many others between public and privatemorality, which produce a perpetual conflict inthe mind. Domestic morality inspires submissionand fear: the other, courage and liberty. Thatinstructs a man to confine his beneficence to asmall number of persons, not of his own choice;this, to extend it to all mankind: that commandsa continual sacrifice of himself to a vain idol,called the good of the family, which is often noreal good to anyone of those who compose it;this teaches him to consider his own advanatge

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without offending the laws, or excites him tosacrifice himself for the good of his country byrewarding him beforehand with the fanaticism itinspires. Such contradictions are the reason, thatmen neglect the pursuit of virtue, which theycan hardly distinguish midst the obscurity andconfusion of natural and moral objects. How fre-quently are men, upon a retrospection of theiractions, astonished to find themselves dishonest.

In proportion to the increase of society, eachmember becomes a smaller part of the whole;and the republican spirit diminishes in the sameproportion, if neglected by the laws. Politicalsocieties, like the human body, have their limitscircumscribed, which they cannot exceed withoutdisturbing their economy. It seems as if thegreatness of a state ought to be inversely as thesensibility and activity of the individuals; if, onthe contrary, population and inactivity increasein the same proportion, the laws will with diffi-culty prevent the crimes arising from the goodthey have produced. An overgrown republic canonly be saved from despotism, by subdividing itinto a number of confederate republics. But howis this practicable 7 Bya despotic dictator, who,with the courage of Sylla, has 88 much genius forbuilding up, as that Roman had for pulling down.

CRIMES AND PUNISHMENTS. 93If he be an ambitious man, his reward will beimmortal glory; if a philosopher, the blessingsof his fellow citizens will sufficiently console himfor the loss of authority. though he should not beinsensible to their ingratitude.

In proportion as the sentiments, which uniteus to the state, grow weaker, those which attachus to the objects which more immediately sur-round us grow stronger; therefore, in the mostdespotic government, friendships are more durable,and domestic virtues (which are always of thelowest class) are the most common, or the onlyvirtues existing. Hence it appears how confinedhave been the views of the greatest number oflegislators.

CHAPTER XXVII.

OF THE MILDNESS OF PUNISHMENTS.

THE course of my ideas has carried me awayfrom my subject, to the elucidation of which Inow return. Crimes are more effectually pre-vented by the certainty, than the severity of pun-

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ishment. Hence, in a magistrate, the necessityof vigilance, and, in a judge, of implacability,which, that it may become an useful virtue,should be joined to a mild legislation. The cer-tainty of a small punishment will make a strongerimpression, than the fear of one more severe, ifattended with the hopes of escaping; for it is thenature of mankind to be terrified at the approachof the smallest inevitable evil, whilst hope, thebest gift of Beaven, hath the power of dispellingthe apprehension of a greater; especially if sup-ported by examples of impunity, which weaknessor avarice too frequently afford.

If punishments be very severe, men are natu-rally led to the perpetration of other crimes, toavoid the punishment due to the first. The coun-tries and times most notorious for severity ofpunishments, were always those in which themost bloody and inhuman actions and the mostatrocious crimes were committed}. for the handof the legislator and the assassin were directed bythe same spirit of ferocity: which on the throne,dictated laws of iron to slaves and savages, andin private instigated the subject to sacrifice onetyrant, to make room for another.

In proportion as punishments become morecruel, the minds of men, as a fluid rises to the

CRIMES AND PUNISHMENTS. 95same height with that which surrounds it, growhardened and insensible; and the force of pas-sions still continuing, in the space of an hundred

.years, the wheel terrifies no more than formerlythe prison. That a punishment may produce theeffect required, it is sufficient that the evil itoccasio~s should exceed the good expected from •the crime; including in the calculation the cer-taintyof the punishment, and the privation ofthe expected advantage. All severity beyondthis is superfluous, and therefore tyrannical.

Men regulate their conduct by the repeatedimpression of evils they know, and not by thosewith which they are unacquainted. Let us, forexample, suppose two nations, in one of whichthe greatest punishment is perpetual slavery, andin the other the wheel. I say, that both will in-spire the same degree of terror; and that therecan be no reasons for increasing the punishmentsof the first, which are not equally valid for aug-menting those of the second to more lasting andmore ingenious modes of tormenting; and so onto the most exquisite refinements of a science toowell known to tyrants.

There are yet two other consequences of cruelpunishments, which counteract the purpose oftheir institution, which was, to prevent crimes.

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The first arises from the impossibility of estab-lishing an exact proportion between the crimeand punishment; for though ingenious crueltyhath greatly multiplied the variety of torments,yet the human frame can suffer only to a certaindegree, beyond which it is impossible to proceed,be the enormity of the crime ever so great. The

• second consequence is impunity. Human natureis limited no less in evil than in good. Excessivebarbarity can never be more than temporary; itbeing impossible that it should be supported bya permanent system of legislation; for if the lawsbe too cruel, they must be altered, or anarchy andimpunity will succeed.

Is it possible, without shuddering with horror,to read in history of the barbarous and uselesstorments that were coolly invented and executedby men who were called sages? Who does nottremble at the thoughts of thousands of wretches,whom their misery, either caused or tolerated bythe laws which favoured the few and outraged themany, had forced in despair to return to a stateof nature; or accused of impossible crimes, thefabric of ignorance and superstition; or guiltyonly of having been faithful to their own princi-pies; who, I say, can, without horror, think oftheir being torn to pieces with slow and studied

CRIMES AND PUNISIIMENTS. 97

barbarity, by men endowed with the same pas-sions and the same feelings? A delightful spec-tacle to a fanatic multitude!

CHAPTER XXVIII.

OF THE Pl'NISH)IENT OF DEATH.

THE useless profusion of punishments, whichhas never made men better, induces me to inquire,whether the punishment of death be really justor useful in a well-governed state 1 What right,I ask, have men to cut the throats of their fellow-creatures? Certainly not that on which the sov-ereignty and laws are founded. The laws, as Ihave said before, are only the sum of the small-est portions of the private liberty of each indi-vidual, and represent the general will, which isthe aggregate of that of each individual. Didanyone ever give to others the right of takingaway his life? Is it possible, that in the smallestportions of the liberty of each, sacrificed to thegood of the public. can be obtained the greatest

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of all good, life 1 If it were so, how shall it bereconciled to the maxim which tells us, that aman has no right to kill himself? Which he cer-tainly must have, if he could give it away toanother.

But the punishment of death is not authorisedby any right; for I have demonstrated that nosuch right exists. It is therefore a war of awhole nation against a citizen, whose destructionthey consider as necessary or useful to the gen-eral good. But if I can further demonstrate,that it is neither necessary nor useful, I shallhave gained the cause of humanity.

The death of a citizen cannot be necessary butin one case. When, though deprived of his lib-erty, he has such power and connections as mayendanger the security of the nation; when hisexistence may produce a dangerous revolution inthe established form of government. But evenin this case, it can only be necessary when a na-tion is on the verge of recovering or losing itsliberty; or in times of absolute anarchy, whenthe disorders themselves hold the place of laws.But in a reign of tranquillity; in a form of gov-ernment approved by the united wishes of thenation; in a state fortified from enemies without,and supported by strength within, and OpInIOn,,

CRTh~E9 AND PUNISHMENTS. 99perhaps more efficacious; where all power islodged in the hands of the true sovereign; whereriches can purchase pleasures and not authority,there can be no necessity for taking away the lifeof a subject.

If the experience of all ages be not sufficientto prove, that the punishment of death has neverprevented determined men from injuring society;if the example of the Romans; if twenty yearsreign of Elizabeth, empress of Russia, in whichshe gave the fathers of their country an examplemore illustrious than many conquests bought withblood; if, I say, all this be not sufficient to per-suade mankind, who always suspect the voice ofreason, and who chuse rather to be led by autho-rity, let us consult human nature in proof of myassertion.

It is not the intenseness of the pain that hasthe greatest effect on the mind, but its continu-ance; for our sensibility is more easily and morepowerfully affected by weak, but by repeated im-pressions, than by a violent but momentary im-pulse. The power of habit is universal over everysensible being. As it is by that we learn tospeak, to walk, and to satisfy our necessities, sothe ideas of morality are stamped on our mindsby repeated impressions. The death of a crimi-

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nal is a terrible but momentary spectacle, andtherefore a less efficacious method of deterringothers, than the continued example of a man de-prived of his liberty, condemned as a beast ofburden, to repair, by his labour, the injury he hasdone to society. .g' I commit such a crime, mys thespectator to himself, I shall be reduced to that miser-able condition for the rest of my life. A much morepowerful preventive than the fear of death, whichmen always behold in distant obscurity.

The terrors of death make so slight an impres-sion, that it has not force enough to withstandthe forgetfulness natural to mankind, even in themost essential things; especially when assistedby the passions. Violent impressions surprise us,but their effect is momentary; they are fit to pro-duce those revolutions which instantly transforma common man into a Lnccdsemonian or a Persian;but in a free and quiet government they ought tobe rather frequent than strong.

The execution of a criminal is, to the multi-tude, a spectacle which in some excites compas-sion mixed with indignation. These sentimentsoccupy the mind much more than that salutaryterror which the laws endeavour to inspire; but inthe contemplation of continued suffering, terroris the only, or at least, the predominant sensation.


The severity of a punishment should be just suf-ficient to excite compassion in the spectators, asit is intended more for them than for the criminal.

A punishment, to be just, should have onlythat degree of severity which is sufficient to deterothers. Now there is no man, who, upon the leastreflection, would put in competition the total nndperpetual loss uf his liberty, with the greatestadvantages he could possibly obtain in con-e-quence of a crime. Perpetual slavery, then, hasin it all that is necessary to deter the most har-dened and determined, as much as the punishmentof death. I say, it has more. There are manywho can look upon death with intrepidity andfirmness; some through fanaticism, and othersthrough vanity, which attends us even to thegrave; others from a desperate resolution, eitherto get rid of their misery, or cease to live: butfanaticism and vanity forsake the criminal inslavery, in chains and fetters, in an iron cage;and despair seems rather the beginning than theend of their misery. The mind, by collectingitself and uniting all its force, can, for a moment,repel assailing grief; but its most vigorous effortsare insufficient to resist perpetual wretchedness.

In all nations, where death is used as punish-ment, every example supposes a new crime com-

..

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mitted. Whereas, in perpetual slavery, everycriminal affords a frequent and lasting example:and if it be necessary that men should often bewitnesses of the power of the laws, criminalsshould often be put to death; but this supposes nfrequency of crimes; and from hence this punish-msnt will cease to have its effect, so that it mustbe useful and useless at the same time.

I shall be told, that perpetual slavery is as pain-ful a punishment as death, and therefore as cruel.I answer, that if all the miserable moments inthe life of a slave were collected into one point,it would be a more cruel punishment than anyother; but these are scattered through his wholelife, whilst the pain of death exerts all its forcein a moment. There is also another advantagein the punishment of slavery, which is, that it ismore terrible to the spectator than to the suffererhimself; for the spectator considers the sum ofall his wretched moments, whilst the sufferer, bythe misery of the present, is prevented fromthinking of the future. All evils are increasedby the imagination, and the sufferer findsresourcesand consolation, of which the spectators are igno-ran ; who judge by their own sensibility of whatpasses in a mind by habit grown callous to mis-fortune. •

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Let us, for a moment, attend to the reasoningof a robber or assassin, who is deterred from vio-lating the laws by the gibbet or the wheel. I amsensible, that to develop the sentiments of one'sown heart, is an art which edu~ation only canteach; but although a villain may not be able togive a clear account of his principles, they never-theless influence his conduct. He reasons thus:"What are these laws that I am bound to respect,which make so great a difference bctween me andthe rich man? He refuses me the farthing I askof him, and excuses himself by bidding me haverecourse to labour, with which he is unacquainted.Who made these laws? The rich and the great,who never deigned to visit the miserable hut ofthe poor; who have never seen him dividing apiece of mouldy bread, amidst the cries of hisfamished children, and the tears of his wife. Letus break those ties, fatal to the greatest part ofmankind, and only' useful to a few indolenttyrants. Let us attack injustice at it s source. Iwill return to my natural state of independence.I shall live free and happy on the fruits of mycourage and industry. A day of pain and repent-ance may come, but it will be short; and for anhour of grief, I shall enjoy years of pleasure and

"-

liberty. King of a small number, as determined

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as myself, I will correct the mistakes of fortune;and shall see those tyrants grow pale and trembleat the sight of him, whom, with insulting pride,they would not suffer to rank with dogsand horses."

Religion then presents itself to the mind ofthis lawless villain, and promising him almost acertainty of eternal happiness upon the easy termsof repentance, contributes much to lessen thehorror of the last scene of the tragedy.

But he who foresees that he must pass a greatnumber of years, even his whole life, in pain andslavery; a slave to those laws by which he wasprotected; in sight of his fellow citizens, withwhom he lives in freedom and society; makes anuseful comparison between those evils, the uncer-tainty of his success, and the shortness of thetime in which he shall enjoy the fruits of histransgression. The example of those wretches con-tinually before his eyes, makes a much greaterimpression on him than a punishment, which, in-stead of correcting, makes him more obdurate.

The punishment of death is pernicious to soci-ety, from the example of barbarity it affords. Ifthe passions, or necessity of war, have taught mento shed the blood of their fellow creatures, thelaws which are intended to moderate the ferocityof mankind, should not increase it by examples


of barbarity, the more horrible, as this punish-ment is usually attended with formal pageantry.Is it not absurd, that the laws, which detect aIHIpunish homicide, should, in order to prevent mur-der, publicly commit murder themselves ? Whatare the true and most useful laws? Those com-pacts and conditions which all would propose andobserve, in those moments when private interestis silent, or combined with that of the public.What are the natural sentiments of every personconcerning the punishment of death ? We mayread them in the contempt and indignation withwhich everyone looks on the executioner, who isnevertheless an innocent executor of the publicwill; a good citizen, who contributes to the ad-vantage of society; the instrument of the generalsecurity within, as good soldiers are without.What then is the origin of this contradiction?Why is this sentiment of mankind indelible tothe scandal of reason? It is, that in a secretcorner of the mind, in which the original impres-sions of nature are still preserved, men discovera sentiment which tells them, that their lives arenot lawfully in the power of anyone, but of thatnecessity only, which with its iron sceptre rulesthe universe.

What must men think, when they see wise14:

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magistrates and grave ministers of justice, withindifference and tranquillity, dragging a criminalto death, and whilst a wretch trembles with agony,expecting the fatal stroke, the judge, who hascondemned him, with the coldest insensibility, andperhaps with no small gratification from the exer-tion of his authority, quits his tribunal to enjoythe comforts and pleasures of life? They will say," Ah! those cruel formalities of justice are acloak to tyranny, they are a secret lauguage, asolemn veil, intended to conceal the sword bywhich we are sacrificed to the insatiable idol ofdespotism. Murder, which they would representto us as an horrible crime, we see practiced bythem without repugnance or remorse. Let usfollow their example. A violent death appearedterrible in their descriptions, but we see that it isthe affair of a moment. Itwill be still less terribleto him, who, not expecting it, escapes almost allthe pain." Such is the fatal, though absurd rea-soning of men who are disposed to commit crimes ;on whom the abuse of religion has more influencethan religion itself.

If it be objected, that almost all nations in allages have punished certain crimes with death, Ianswer that the force of these examples vanishes,when opposed to truth, against which prescription


is urged in vain. The history of mankind is animmense sea of errors, in which a few obscuretruths may here and there be found.

But human sacrifices have also been commonin almost all nations. That some societies only,either few in number, or for a very short time, ab-stained from the punishment of death, is ratherfavourable to my argument, for such is the fate ofgreat truths, that their duration is only as a flashof 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 portionof the greatest number.

I am sensible that the voice of one philosopheris too weak to be heard amidst the clamours of amultitude, blindly influenced by custom; butthere is a small number of sages, scattered on theface of the earth, who will' echo to me from thebottom of their heart.s; and if these truths shouldhappily force their way to the thrones ul' princes,be it known to them, that they come attendedwith the secret wishes of all mankind, and tellthe sovereign who deigns them a gracious recep-tion, that his fame shall outshine the glory ofconquerors, and that equitable posterity will exalthis peaceful trophies above those of a Titus, anAntoninus, or a Trajan.

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How happy were mankind, if laws were nowto be first formed! now that we see on the thronesof Europe benevolent monarchs, friends to thevirtues of peace, to the arts and sciences, fathersof their people, though crowned yet citizens;the increase of whose authority augments thehappiness of their subjects, by destroying that in- ,termcdiate despotism which intercepts the prayersof the people to the throne. If these humaneprinces have suffered the old laws to subsist, it isdoubtless because they are deterred by the num-berless obstacles which oppose the subversion oferrors established by the sanction of many ages;and therefore every wise citizen will wish for theincrease of their authority.

CHAPTER XXIX.

OF IMPRISONMENT.

THAT a magistrate, the executor of the laws,should have a power to imprison a citizen, todeprive the man he hates of his liberty upon

CRIMES AND PUNISHMENTS. 109frivolous pretences,and to leave his friend unpun-ished, notwithstanding the strongest proofs of hisguilt, is an error as common as it is contrary tothe. end of society, which is personal security.

Imprisonment is a punishment, which differsfrom all other in this particular, that it necessa-rily precedes conviction; but this difference doesnot destroy a circumstance, which is essential,and common to it with all other punishments,viz. that it should never be inflicted, but whenordained by the law. The law should, therefore,determine the crime, the presumption, and theevidence sufficient to subject the accused toimprisonment and examination. Public report,his flight, his extra-judicial confession, that of anaccomplice, menaces, and his constant enmitywith the person injured, the circumstances of thecrime, and such other evidence, may be sufficientto justify the imprisonment of a citizen. Butthe nature of this evidence should be determinedby the laws, and not by the magistrates, whosedecrees are always contrary to political liberty,when they are not particular applications of ageneral maxim of the public code. When punish-ments become less severe, and prisons less horri-ble; when compassion and humanity shall pene-trate the iron gates of dungeons, and direct the

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obdurate and inexorable ministers of justice, thelaws may then be satisfied with weaker evidencefor imprisonment.

A person accused, imprisoned, tried and acquit-ted, ought not to be branded with any degree ofinfamy. Among the Romans, we see that many,accused of very great crimes, and afterwardsdeclared innocent, were respected by the people,and honoured with employments in the state.But why is the fate of an innocent person so dif-ferent in this age? It is, because the presentsystem of penal laws presents to our minds anidea of power rather than of justice. I tis,because the accused and convicted are thrownindiscriminately into the same prison; becauseimprisonment is rather a punishment, than ameans of securing the person of the accused;and because the interior power, which defendsthe laws, and the exterior, which defends thethrone and kingdom, are separate when theyshould be united. If the first were (under thecommon authority of the laws) combined withthe right of judging, but not, however immedi-ately dependent on the magistrate, the pomp thatattends a military corps, would take off theinfamy; which, like all popular opinions, is moreattached to the manner and form, than to the

,


thing itself; as may be seen in military imprison-ment, which, in the common opinion, is not sodisgraceful as the civil. But the barbarity andferocity of our ancestors, the hunters of thenorth, still subsist among the people, in our cus-toms and our laws, which are always seve~al agesbehind the actual refinements of a nation.

CHAPTER XXX.

OF PUOSECtTION AX}) PHESCUIPTIOX.

THE proofs of the crime being obtained, andthe certainty of it determined, it is necessary toallow the criminal the time and means for hisjustification; but a time so short, as not to dimin-ish that promptitude of punishment, which, as wehave shewn, is one of the most powerful meansof preventing crimes. A mistaken humanitymay object to the shortness of the time, but theforce of the objection will vanish, if we consider,that the danger of the innocent increases withthe defects of the legislation.

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The time for inquiry and for justificationshould be fixed by the laws, and not by thejudge, who, in that case, would become legislator.With regard to atrocious crimes, which are longremembered, when they are once proved, if thecriminal have fled, no time should be allowed;but in less considerable and more obscure crimes,a time should be fixed, after which the delinquentshould be no longer uncertain of his fate. Forin th(l latter case, the length of time, in whichthe crime is almost forgotten, prevents the exam-ple of impunity, and allows the criminal toamend, and become a better member of society.

General principles will here be sufficient, itbeing impossible to fix precisely the limits oftime for any given legislation, or for any societyin any particular circumstance. I shall only add,that in a nation willing to prove the utility ofmoderate punishment, laws which, according tothe nature of the crime increase or diminish thetime of inquiry and justification, considering theimprisonment or the voluntary exile of the crimi-nal as a part of the punishment, will form an easydivision of a small number of mild punishmentsfor a great number of crimes.

But, it must be 'observed, the time for inquiryand justification, should not increase in direct


proportion to the atrociousness of crimes; for theprobability of such crimes having been commit-ted, is inversely as their atrociousness. There-fore the time for inquiring ought, in some cases,to be diminished, and that for justificationincreased, and vice versa. This may appear tocontradict what I have said above, namely, thatequal punishments may be decreed for unequalcrimes, by considering the time allowed thecriminal, or the prison, as a punishment.

In order to explain this idea, I shall dividecrimes into two classes. The first comprehendshomicide, and all greater crimes; the second,crimes of an inferior degree. This distinctionis founded in human nature. The preservation oflife is a natural right; the preservation of prop-erty is a right of society. The motives that in-duce men to shake off the natural sentiment ofcompassion, which must be destroyed before greatcrimes ean be committed, are much less in num-ber than those by which, from the natural desireof being happy, they are instigated to violate aright, which is not founded in the heart of man,but is the work of society. The different degreesof probability in these two classes, require thatthey should be regulated on different principles.In the greatest crimes, as they are IcSB frequent,

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and the probability of the innocence of theaccused being greater, the time allowed him forhis justification should be greater, and the timeof inquiry less. For by hastening the definitivesentence, the flattering hopes of impunity are de-stroyed, which are more dangerous, as the crimeis more atrocious. On the contrary, in crimes ofless importance, the probability of the innocencebeing less, the time of inquiry should be greater,and that of justification less, as impunity is not sodangerous.

But this division of crimes into two classesshould not be admitted, if the consequences ofimpunity were in proportion to the probability ofthe crime. It should be considered, that a personaccused, whose guilt or innocence is not deter-mined for want of proofs, may be again imprisonedfor the same crime, and be subject to a new trial,if fresh evidence arises within the time fixed.

This is, in my opinion, the best method of pro-viding at the same time for the security and lib-erty of the subject, without favouring one at theexpence of the other; which may easily happen,since both these blessings, the inalienable andequal patrimony of every citizen, are liable to beinvaded, the one by open or disguised despotism,and the other by tumultuous and popular anarchy.


CHAPTER XXXI.

OF CRDIES OF DIFFHTLT PIWOF.

WITH the foregoing principles in view, it willappear astonishing, that reason hardly ever pre-sided at. the formation of the laws of nations;that the weakest and most equivocal evidence, andeven conjectures, have been thought sufficientproof for crimes the most atrocious, (and there-fore most improbable), the most obscure and chi-merical; as if it were the interest of the lawsand the judge not to inquire into the truth, butto prove the crime; as if there was not a greaterrisk of condemning an innocent person, when theprobability of his guilt is less.

The generality of men want that vigour ofmind and resolut.ion, which are as necessary forgreat crimes as for great virtues, and which atthe same time produce both the one and theother, in those nations which are supported bythe activity of their government, and a passionfor the public good. For in those which subsistby their greatness or power, or by the goodness

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of their laws, the passions being III a weakerdegree, seem calculated rather to maintain thanto improve the form of government. This natu-rally leads us to an important conclusion, viz.that great crimes do always produce the destruc-tion of a nation.

There are some crimes which, though frequentin society, are of difficult proof, a circumstanceadmitted, as equal to the probability of the inno-cence of the accused. But as the frequency ofthese crimes is not owing to their impunity, somuch as to other causes, the danger of theirpassing unpunished is of less importance, andtherefore the time of examination and prescrip-tion may be equally diminished. These princi-ples are different from those commonly received;for it is in crimes, which are proved with thegreatest difficulty, such as adultery, and sodomy,that presumptions, half-proofs, etc. are admitted;as if a man could be half innocent, and halfguilty; that is, half punishable and half absolv-able. It is in these cases that torture shouldexercise its cruel power on the person of theaccused, the witnesses, and even his whole family,as, with unfeeling indifference, some civilianshave taught, who pretend to dictate laws tonations.

CRIMES AND PUNISHlIIENTS. 117

Adultery is a crime which, politically con-sidered, owes its existence to two causes, viz. per-nicious laws, and the powerful attraction betweenthe sexes. This attraction is similar in manycircumstances to gravity, the spring of motion inthe universe. Like this, it is diminished by dis-tance; one regulates the motions of the body, theother of the soul, But they differ in one respect ;the force of gravity decreases in proportion tothe obstacles that oppose it; the other gathersstrength and vigour as the obstacles increase,

If I were speaking to nations guided only bythe laws of nature, I would tell them, that thereis a considerable difference between adultery andall other crimes. Adultery proceeds from anabuse of that necessity which is constant anduniversal in human nature; a necessity anteriorto the formation of society, and indeed thefounder of society itself; whereas, all othercrimes tend to the destruction of society, andarise from momentary passions, and not from anatural necessity. It is the opinion of those,who have studied history and mankind, that thisnecessity is constantly in the same degree in thesame climate, If this be true, useless, or ratherpernicious must all laws and customs be, whichtend to diminish the sum total of the effects of

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this passion. Such laws would only burden onepart of the society with the additional necessitiesof the other; but, on the contrary, wise are thelaws which, fullowing the natural course of theriver, divide the stream into a number of equalbranches, preventing thus both sterility andinundation.

Conjugal fidelity is always greater in propor·tion as marriages are more numerous, and lessdifficult. But when the interest or pride offamilies, or paternal authority, not the incl ina-tion of the parties, unite the sexes, gallantry soonbreaks the slender ties, in spite of commonmoralists, who exclaim against the effect, whilstthey pardon the cause. But these reflections areuseless to those, who, living in the true religion,act from sublimer motives, which correct theeternal laws of nature.

The act of adultery is a crime so instantaneous,80 mysterious, and 80 concealed by the veil whichthe laws themselves have woven; a veil necessaryindeed, but so transparent, as to heighten ratherthan conceal the charms of the object; the oppor-tunities are so frequent, and the danger of dis-covery so easily avoided, that it were much easierfor the laws to prevent this crime, than to punishit when committed.

CRIl\IES AND PUNISHMENTS. 119

To every crime, which from its nature mustfrequently remain unpunished, the punishmentis an incentive. Such is the nature of the humanmind, that difficulties, if not insurmountable, nortoo great for our natural indolence, embcll ish theobject, and spur us on to the pursuit. They areso many barriers that confine the imagination tothe object, and oblige us to consider it in everypoint of view. In this agitation, the mind natu-rally inclines and. fixes itself to the most agree-able part, studiously avoiding every idea thatmight create disgust.

The crime of sodomy, so severely punishedby the laws, and for the proof of which areemployed tortures, which often triumph overinnocence itself, has its source much less in thepassions of man in a free and independent state,than in society and a slave. It is much less theeffect of a satiety in pleasures, than of that edu-cation, which, in order to make men useful toothers, begins by making them useless to them-selves. In those public seminaries, where ardentyouth are carefully excluded from all commercewith the other sex, as the vigour of natureblooms, it is consumed in a manner not onlyuseless to mankind, but which accelerates theapproach of old age.

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The murder of bastard children is, in likemanner, the effect of a cruel dilemma, in whicha woman finds herself who has been seducedthrough weakness, or overcome by force. Thealternative is, her own infamy,.or the death of abeing who is incapable of feeling the loss of life.Bow can she avoid preferring the last to theinevitable misery of herself and her unhappyinfant! The best method of preventing thiscrime, would be effectually to protect the weakwoman from that tyranny which exaggerates allvices that cannot be concealed under the cloakof virtue.

I do not pretend to lessen that just abhorrencewhich these crimes deserve, but to discover thesources from whence they spring; and I think Imay draw the following conclusions: That thepunishment qf a crime cannot be just, (that is, neces-sary), if the lato« have nut endeavoured to prevent thatcrime hy the best means which time« and fircum8tance.would allow.


CHAPTER XXXII.

OF SUICIDE.

SUICIDB is a crime, which seems not to admit.of punishment, properly speaking; for it cannotbe inflicted but on the innocent, or upon aninsensible dead body. In the first case, it isunjust and tyrannical, for political liberty sup·poses all punishments entirely personal; in thesecond, it has the same effect, by way of example,as the scourging a statue. Mankind love lifetoo well; the objects that surround them; theseducing phantom of pleasure and hope, thatsweetest error of mortals, which makes menswallow such large draughts of evil, mingledwith a very few drops of good, allure them toostrongly, to apprehend that this crime will everbe common from its unavoidable impunity. Thelaws are obeyed through fear of punishment, butdeath destroys all sensibility. What motive,then, can restrain the desperate hand of suicide 1

He who kills himself does a less injury tosociety, than he who quits his country for ever;

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for the other leaves his property behind him, butthis carries with him at least a part of his sub-stance. Besides, as the strength of a societyconsists in the number of citizens, he who quitsone nation to reside in another) becomes a doubleloss. This then is the question: whether it beadvantageous to society, that its members shouldenjoy the unlimited privilege of migration?

Every law that is not armed with force, orwhich, from circumstances, must be ineffectual,should not be promulgated. Opinion, whichreigns over the minds of men, obeys the slowand indirect impressions of the legislator, butresists them when violently and directly applied;and useless laws communicate their insignificanceto the most salutary, which are regarded more asobstacles to be surmounted, than as safeguardsof the public good. But further, our perceptionsbeing limited, by enforcing the observance oflaws which are evidently useless, W€ destroy theinfluence of the most salutary.

From this principle, a wise dispenser of publichappiness may draw some useful consequences,the explanation of which would carry me too farfrom my subject, which is to prove the inutilityof making the nation a prison. Such a law isvain, because, unless inaccessible rocks, or impass-

CRIMES AND PUNISHMENTS. 123able seas, divide the country from all others, howwill it be possible to secure every point of thecircumference, or how will you guard the guardsthemselves 1 Besides, this crime, once com-mitted, cannot be punished; and to punish itbefore hand, would be to punish the intentionand not the action; the will, which is entirelyout of the power of human laws. To punish theabsent by confiscating his effects, besides thefacility of collusion, which would inevitably bethe case, and which, without tyranny, could notbe prevented, would put a stop to all commercewith other nations. To punish the criminalwhen he returns, would be to prevent him fromrepairing the evil he had already done to society,by making his absence perpetual. Besides, anyprohibition would increase the desire of removing,and would infallibly prevent strangers from set-tling in the country.

What must we think of a government whichhas no means, but fear, to keep its subjects intheir own country; to which, by the first impres-sions of their infancy, they are so stronglyattached. The most certain method of keepingmen at home, is, to make them happy; and it isthe interest of every state to turn the balance,not only of commerce, but of felicity in favour

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of its subjects. The pleasures of luxury are notthe principal sources of this happiness; though,by preventing the too great accumulation ofwealth in few hands, they become a necessaryremedy against the too great inequality of indi-viduals, which always increases. with the progressof society.

When the populousness of a country docs notincrease in proportion to its extent, luxuryfavours despotism, for where men are most dis-persed, there is least industry, the dependenceof the poor upun the luxury of the rich is great-est, and the union of the oppressed against theoppressors is least to be feared. In such circum-stances, rich and powerful men more easilycommand distinction, respect and service, bywhich they are raised to a greater height abovethe poor; for men are more independent theless they are observed, and are least observedwhen most numerous. On the contrary, whenthe number of people is too great in proportionto the extent of a country, luxury is a check todespotism; because it is a spur to industry, andbecause the labour of the poor affords so manypleasures to the rich, that they disregard theluxury of ostentation, which would remind thepeople of their dependence. Hence we see that


m vast and depopulated states, the luxury ofostentation prevails over that of convenience;but, in the countries more populous, the luxuryof convenience tends constantly to diminish theluxury of ostentation.

The pleasures of luxury have this inconven-ience, that though they employ a great numberof hands, yet they are only enjoyed by a few,whilst the rest, who do not partake of them,feel the want more sensibly, on comparing theirstate with that of others. Security and liberty,restrained by the laws, are the basis of happiness,and when attended by these, the pleasures ofluxury favour population, without which theybecome the instrument of tyranny. As themost noble and generous animals fly to solitudeand inaccessible deserts, and abandon the fertileplains to man, their greatest enemy; so menreject pleasure itself, when offered by the handof tyranny.

But to return. If it be demonstrated, thatthe laws which imprison men in their owncountry are vain and unjust, it will be equallytrue of those which punish suicide, for that canonly be punished after death, which is in thepower of God alone; but it is no crime, withregard to man, because the punishment falls on

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an innocent family. If it be objected, that theconsideration of such a punishment may preventthe crime; I answer, that he who can calmlyrenounce the pleasure of existence; who is soweary of life as to brave the idea of eternalmisery, will never be influenced by the moredistant and less powerful considerations of familyand children.

CHAPTER XXXIII.

OF SMUGGLUW.

SMUGGLING is a real offence against the sover-eign and the nation; but the punishment shouldnot brand the offender with infamy, because thiscrime is not infamous in the public opinion. Byinflicting infamous punishments, for crimes thatare not reputed so, we destroy that idea whereit may be useful. If the same punishment bedecreed for killing a pheasant as for killing aman, or for forgery, all difference between thosecrimes will shortly vanish. It is thus that moralsentiments are destroyed in the heart of man;

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sentiments, the work of many ages and of muchbloodshed; sentiments, that are so slowly, andwith so much difficulty.. produced, and for theestablishment of which such sublime motives,and such an apparatus of ceremonies, werethought necessary.

This crime is owing to the laws themselves;for the higher the duties, the greater is theadvantage, and, consequently, the temptation;which temptation is increased by the facilityof perpetration, when the circumference that isguarded is of great extent, and the merchandiseprohibited is small in bulle The seizure and lossof the goods attempted to be smuggled, togetherwith those that are found along with them, isjust; but it would be better to lessen the duty,because men risk only in proportion to the advan-tage expected.

This crime being a theft of what belongs tothe prince, and consequently to the nation, whyis it not attended with infamy 1 I answer, thatcrimes, which men consider as productive of nobad consequences to themselves, do not interestthem sufficiently to excite their indignation. Thegenerality of mankind, upon whom remote con-sequences make no impression, do not see theevil that may result from the practice of smug-

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gling, especially. if they reap from it any presentadvantage. They only perceive the loss sus-tained by the prince. They are not then inter-ested in refusing their esteem to the smuggler, asto one who has committed a theft or a forgery,or other crimes, by which they themselves maysuffer; from this evident principle, that a sensiblebeing only interests himself in those evils withwhich he is acquainted.. Shall this crime, then, committed by one whohas nothing to lose, go unpunished ? No. Thereare certain species of smuggling, which so par-ticularly affect the revenue, a part of governmentso essential, and managed with so much difficulty.that they deserve imprisonment, or even slavery;but yet of such a nature as to be proportioned tothe crime. For example, it would be highlyunjust that a smuggler of tobacco should sufferthe same punishment with a robber or assassin;but it would be most conformable W the natureof the offence, that the produce of his labourshould be applied to the use of the crown, whichhe intended to defraud.

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CHAPTER XXXIV.

OF DANKRt;PTS.

THEnecessity of good faith in contracts andthe support of commerce oblige the legislature tosecure, for the creditors, the persons of bank- .rupts. It is, however, necessary to distinguishbetween the fraudulent and the honest bankrupt.The fraudulent bankrupt should be punished inthe same manner with him who adulterates thecoin; for to falsify a piece of coin, which is apledge of the mutual obligation between citizens,is not a greater crime than to violate the obliga-tions themselves. But the bankrupt who, aftera strict examination, has proved before properjudges, that either the fraud or losses of others,or misfortunes unavoidable by human prudence,have stript him of his substance; upon what bar-barous pretence is he thrown into prison, anddeprived of the only remaining good, the melan-choly enjoyment of mere liberty? Why is heranked with criminals, and in despair compelledto repent of his honesty 1 Conscious of his inno-

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cence, he lived easy and happy under the protec-tion of those laws, which it is true, he violated,but not intentionally. Laws, dictated by theavarice of the rich, and accepted by the poor,seduced by that universal flattering hope whichmakes men believe, that all unlucky accidents arethe lot of others, and the most fortunate onlytheir share. Mankind, when influenced by thefirst impressions, love cruel laws, although beingsubject to them themselves, it is the interest ofevery person that they should be as mild as possi-ble; but the fear of being injured is always moreprevalent than the intention of injuring others.

But to return to the honest bankrupt. Let hisdebt, if you will, not be considered as cancelledtill the payment of the whole; let him be refusedthe liberty of leaving the country without leaveof his creditors, or of carrying into anothernation that industry which, under a penalty, heshould be obliged to employ for' their benefit;but what pretences can justify the depriving aninnocent, though unfortunate man of his liberty,without the least utility to his creditors 1

But, say they, the hardships of confinementwill induce him to discover his fraudulent trans-actions; an event that can hardly be supposed,after a rigorous examination of his conduct and

CRIMES AND PUNISHMENTS. 131affairs. But if they are not discovered, he willescape unpunished. It is, I think, a maxim ofgovernment, that the importance of the politicalinconveniences, arising from the impunity of acrime, are directly as the injury to the public, andinversely as the difficulty of proof.

It will be necessary to distinguish fraud,attended with aggravating circumstances, fromsimple fraud, and that from perfect innocence.For the first, let there be ordained the same pun-ishment as for forgery; for the second, a lesspunishment but with the loss of liberty; and ifperfectly honest, let the bankrupt himself chusethe method of re-establishing himself, and ofsatisfying his creditors; or if he should appearnot to have been strictly honest, let that be deter-mined by his creditors: but these distinctionsshould be fixed by the laws, which alone areimpartial, and not by the arbitrary and dangerousprudence of judges.*

• It may be alledged, that the interest of commerce and propertyshould be secured; but commerce and property are not the end ofthe social compact, but the means of obtaining that end; and tooppose all the members of society to cruel laws, to preserve themfrom evils, necessarily occasioned by the infinite combinations whichresult from the actual state of political societies, would be to makethe end subservient to the means, a paralogism in all sciences, andparticularly in politics. In the former editions of this work, Imyself fell into this error, when I said that the honest bankruptshould be kept in custody, as a pledge for his debts, or employed us

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With what ease might a sagacious legislatorprevent the greatest part of fraudulent bank-ruptcies, and remedy the misfortunes that befalthe honest and industrious! A public register ofall contracts, with the liberty of consulting it,allowed to every citizen; a public fund formedby a contribution of the opulent merchants forthe timely assistance of unfortunate industry,were establishments that could produce 110 realinconveniences, and many advantages. Butunhappily the most simple, the easiest, yet thewisest laws, that wait only for the nod of thelegislator, to diffuse through nations wealth,power and felicity; laws which would be regardedby future generations with eternal gratitude, areeither unknown or rejected. A restless andtrifling spirit, the timid prudence of the presentmoment, a distrust and aversion to the most usefulnovelties, possess the minds of those who areempowered to regulate the actioas of mankind.

a slave to work for his creditors. I am ashamed of having adopted80 cruel an opinion. I have been accused of impiety; I did notdeserve it. I have been accused of sedition; I deserved it as little.But I insulted all the rights of humanity, and was never reproached.


CHAPTER XXXV.

OF S.\NCTUAItIES.

ARE sanctuaries just? Is a convention betweennations, mutually to give up their criminals,useful?

In the whole extent of a political state, thereshould be no place independent of the laws.Their power should follow evcry subject, as theshadow follows the body. Sanctuaries, and impu-nity, differ only in degree, and as the effect ofpunishment depends more on their certainty,than their greatness, men are more stronglyinvited to crimes by sanctuaries, than they aredeterred by punishment. To increase the num-ber of sanctuaries, is to erect so many littlesovereignties; for, when the laws have no power,new bodies will be formed in opposition to thepublic good, and a spirit established contrary to

that of the state. History informs us, that fromthe use of sanctuaries have arisen the greatestrevolutions in kingdoms and in opinions.

Some have pretended, that in whatever country

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a crime, that IS, an action contrary to the lawsof society, be committed, the criminal may bejustly punished for it in any other; as if thecharacter of subject were indelible, or synoni-mous with, or worse than that of slave; as if aman could live in one country, and be subject tothe laws of another, or be accountable for hisactions to two sovereigns, or two codes of laws,often contradictory. There are also who think,that an act of cruelty committed, for example,at Constantinople may be punished at Paris;for this abstracted reason, that he who offendshumanity, should have enemies in all mankind,and be the object of universal execration; as ifjudges were to be the knights-errant of humannature in general, rather than guardians of par-ticular conventions between men. The place ofpunishment can certainly be no other, than thatwhere the crime was committed; for the necessityof punishing an individual for the general goodsubsists there, and there only.. A villain, if hehas not broke through the conventions of asociety of which, by my supposition, he was nota member, may be feared, and by force banishedand excluded from that society; but ought notto be formally punished by the laws, which wereonly intended to maintain the social compact,


and not to punish the intrinsic malignity ofactions.

Whether it be useful that nations shouldmutually deliver up their criminals? Althoughthe certainty of there being no part of the earthwhere crimes are not punished, may be a meansof preventing them, I shall not pretend to deter-mine this question, until laws more conformableto the necessities and rights of humanity, anduntil milder punishments, and the abolition ofthe arbitrary power of opinion, shall affordsecurity to virtue and innocence when oppressed;and until tyranny shall be confined to the plainsof Asia, and Europe acknowledge the universalempire of reason, by which the interests ofsovereigns and subjects are best united.

CHAPTER XXXVI.

OF REWARDS FOR APPREHE:S-DING, OR KILLING CRIMINALS.

LET us now inquire, whether it be advantageousto society, to set a price on the head of a criminal,and so to make of every citizen an executioner.

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If the offender hath taken refuge in another state,the sovereign encourages his subjects to commita crime, and to expose themselves to a justpunishment; he insults that nation, and author-ises the subjects to commit on their neighbourssimilar usurpations. If the criminal still remainin his own country, to set a price upon his head,is the strongest proof .of the weakness of thegovernment. He who has strength to defendhimself, will not purchase the assistance ofanother. Besides, such an edict confounds allthe ideas of virtue and morality, already toowavering in the mind of man. At one timetreachery is punished by the laws, at anotherencouraged. With one hand the legislatorstrengthens the ties of kindred and friendship,and with the other rewards the violation of both.Always in contradiction with himself, now heinvites the suspecting minds of men to mutualconfidence, and now he plants distrust in everyheart. To prevent one crime, he gives birth toa thousand. Such are the expedients of weaknations, whose laws are like temporary repairsto a tottering fabric. On the, contrary, as 3

nation becomes more enlightened, honesty andmutual confidence become more necessary, a~dare daily tending to unite with sound policy.

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Artifice, cabal, and obscure and indirect actionsare more easily discovered, and the interest ofthe whole is better secured against the passionsof the individual.

Even the times of ignorance, when privatevirtue was encouraged by public morality, mayafford instruction and example to more enlight-ened ages. But laws which reward treason,excite clandestine war, and mutual distrust,oppose that necessary union of morality andpolicy, which is the foundation of happiness anduniversal peace.

CHAPTER XXXVII.

OF ATTEMPTS. ACCOMPLICES AND PARDON.

THE laws do not punish the intention; never-theless an attempt which manifests the intentionof committing a crime, deserves a punishment,though less, perhaps, than if the crime were actu-ally perpetrated. The importance of preventingeven attempts to commit a crime sufficiently

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authorises a punishment; but as there may be aninterval of time between the attempt and theexecution, it is proper to reserve the greater pun-ishment for the actual commission, that evenafter the attempt there may be a motive fordesisting.

In like manner, with regard to the accomplices,they ought not to suffer 80 severe a punishmentas the immediate perpetrator of the crime. Butthis for a different reason. When a number ofmen unite, and run a common risk, the greaterthe danger, the more they endeavour to distrib-ute it equally. Now, if the principals be punishedmore severely than the aecessaries, it will pre-vent the danger from being equally divided, andwill increase the difficulty of finding a person toexecute the crime, as his danger is greater by thedifference of the punishment. There can be butone exception to this rule; and that is, when theprincipal receives a reward from the accomplices.In that case, as the difference of the danger iscompensated, the punishment should be equal.These reflections may appear too refined to thosewho do not consider, that it is of great import-ance, that the laws should leave the associates asfew means as possible of agreeing among them-selves.


In some tribunals, a pardon is offered to anaccomplice in a great crime, if he discover hisassociates. This expedient has its advantages.The disadvantages are, that the law authorisestreachery, which is detested even by the villainsthemselves; and introduces crimes of cowardice,which are much more pernicious to a nation thancrimes of courage. Courage is not common, andonly wants a benevolent power to direct it to thepublic good. Cowardice, on the contrary, is afrequent self-interested, and contagious evil,which can never be improved into a virtue.Besides, the tribunal, which has recourse to thismethod, betrays its fallibility, and the laws theirweakness, by imploring the assistance of those bywhom they are violated.

The advantages are, that it prevents greatcrimes, the effects of which being public, and theperpetrators concealed, terrify the people. Italso contributes to prove, that he who violatesthe laws, which are public conventions, will alsoviolate private compacts. It appears to me, thata general law, promising a reward to everyaccom-plice who discovers his associates, would be betterthan a special declaration in every particularcase; because it would prevent the union of thosevillains, as it would inspire a mutual distrust, and

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each would be afraid of exposing himself aloneto danger. The accomplice, however, should bepardoned, on condition of transportation. ., .,., ., ., But it is in vain, that I torment myselfwith endeavouring to extinguish the remorse Ifeel in attempting to induce the sacred laws, themonument of public confidence, the foundationof human morality, to authorise dissimulationand perfidy. But what an example does it offerto a nation, to see the interpreters of the lawsbreak their promise of pardon, and on the strengthof learned subtleties, and to the scandal of publicfaith, drag him to punishment who hath acceptedof their invitation! Such examples are notuncommon, and this is the reason, that politicalsociety is regarded as a complex machine, thesprings of which are moved at pleasure by themost dexterous or most powerful.


CHAPTER XXXVIII.

OF SUGGESTIVE IXTEUROGATlOKS.

THElaws forbid suggestive interrogations; that is,according to the civilians, questions which, withregard to the circumstances of the crime, arespecial when they should be general; or, in otherwords, those questions which, having an imme-diate reference to the crime, suggest to the crimi-nal an immediate answer. Interrogations, accord-ing to the law, ought to lead to the fact indirectlyand obliquely, but never directly or immediately.The intent of this injunction is, either that theyshould not suggest to the accused an immediateanswer that might acquit him, or that they thinkit contrary to nature that a man should accusehimself. But whatever be the motive, the lawshave fallen into a palpable contradiction, in con-demning suggestive interrogations, whilst theyauthorise torture. Can there be an interrogationmore suggestive than pain? Torture will suggestto a robust villain an obstinate silence, that hemay exchange a greater punishment for a less;

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and to a feeble man confession, to relieve himfrom the present pain, which affects him morethan the apprehension of the future. If a specialinterrogation be contrary to the right of nature,as it obliges a man to accuse himself, torture willcertainly do it more effectually. But men areinfluenced more by the names than the nature ofthings.

He who obstinately refuses to answer the inter-rogatories, deserves a punishment, which shouldbe fixed by the laws, and that of the severestkind; that criminals should not, by their silence,evade the example which they owe the public.But this punishment is not necessary when theguilt of the criminal is indisputable, because inthat case interrogation is useless, as is likewisehis confession, when there are, without it, proofssufficient. This last case is most common, forexperience shews, that in the greatest number ofcriminal prosecutions, the culprit pleads notguilty.

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CHAPTER XXXIX.

OF A PARTICULAR KIND OF CRIMES.

THE reader will perceive that I have omittedspeaking of a certain class of crimes, which hascovered Europe with blood, and raised up thosehorrid piles. from whence, midst clouds of whirl-ing smoke, the groans of human victims, thecrackling of their bones, and the frying of theirstill panting bowels, were a pleasing spectacleand agreeable harmony to the fanatic multitude.But men of understanding will perceive, that theage and country in which I live will not permitme to inquire into the nature of this crime. Itwere too tedious, and foreign to my subject, toprove the necessity of a perfect uniformity ofopinions in a state, contrary to the examples ofmany nations; to prove that opinions, whichdiffer from one another only in some subtile andobscure distinctions, beyond the reach of humancapacity, may nevertheless disturb the publictranquillity. unless one only religion be estab-lished by authority; and that some opinions, by

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being contrasted and opposed to each other, intheir collision strike out the truth; whilst others,feeble in themselves, require the support of powerand authority. It would, I say, carry me too far,were I to prove, that, how odious soever is theempire of force over the opinions of mankind,from whom it only obtains dissimulation followedby contempt; and although it may seem contraryto the spirit of humanity and brotherly love,commanded us by reason, and authority, whichwe more respect, it is nevertheless necessary andindispensible. Weare to believe, that all theseparadoxes are resolved beyond a doubt, and areconformable to the true interest of mankind, ifpractised by a lawful authority. I write only ofcrimes which violate the laws of nature and thesocial contract, and 110tof sins, even the temporalpunishments of which must be determined fromother principles than those of a limited humanphilosophy.


CHAPTER XL.

OF FALSE IDEAS OF UTILITY.

A PRINCIPAL source of errors and injustice, arefalse ideas of utility. For example; that legisla-tor has false ideas of utility, who considers par-ticular more than general conveniences; who hadrather command the sentiments of mankind thanexcite them, and dares say to reason," Be thou aslave;" who would sacrifice a thousand realadvantages to the fear of an imaginary or triflinginconvenience; who would deprive men of theuse of fire for fear of being burnt, and of waterfor fear of their being drowned; and who knowof no means of preventing evil, but by destroy-ing it.

The laws of this nature, are those which forbidto wear arms, disarming those only who are notdisposed to commit the crime which the lawsmean to prevent. Can it be supposed, that thosewho have the courage to violate the most sacredlaws of humanity, and the most important of thecode, will respect the less considerable and arbi-

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trary injunctions, the violation of which is soeasy, and of so little comparative importance?Does not the execution of this law deprive thesubject of that personal liberty, so dear to man-kind and to the wise legislator; and does it notsubject the innocent to all the disagreeable cir-cumstances that should only fall on the guilty?It certainly makes the situation of the assaultedworse, and the assailants better, and ratherencourages than prevents murder, as it requiresless courage to attack armed than unarmedpersons.

It is a false idea of utility, that would give toa multitude of sensible beings that symmetry andorder, which inanimate matter is alone capableof receiving; to neglect the present, which arethe only motives that act with force and constancyon the multitude, for the more distant, whoseimpressions are weak and transitory, unlessincreased by that strength of imagination so veryuncommon among mankind. Finally, that is afalse idea of utility, which, sacrificing things tonames, separates the public good from that ofindividuals.

There is this difference between a state ofsociety and a state of nature, that a savage doesno more mischief to another than is necessary to


procure some benefit to himself; but a man insociety is sometimes tempted, from a fault in thelaws, to injure another, without any prospect ofadvantage. The tyrant inspires his vassals withfear and servility, which rebound upon him withdouble force, and are the cause of his torment.Fear, the more private and domestic it is, the lessdangerous is it to him who makes it the instru-ment of his happiness; but the more it is public,and the greater number of people it affects, thegreater is the probability that some mad, despe-rate or designing person will seduce others to hisparty, by flattering expectations; and this willbe the more easily accomplished, as the dangerof the enterprize will be divided amongst a greatnumber, because the value the unhappy set upontheir existence is less, as their misery is greater.

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CHAPTER XLI.

OF THE :MEANS OF PREVENTING CRIMES.

IT is better to prevent crimes than to punishthem. This is the fundamental principle of goodlegislation, which is the art of conducting mento the maximum of happiness, and to the minimumof misery, if we may apply this mathematicalexpression to the good and evil of life. But themeans hitherto employed for that purpose, aregenerally inadequate, or contrary to the end pro-posed. It is impossible to reduce the tumultuousactivity of mankind to absolute regularity; for,midst the various and opposite attractions ofpleasure and pain, human laws are not sufficiententirely to prevent disorders in society. Such,however, is the chimera of weak men, when in-vested with authority. To prohibit a number ofindifferent actions, is not to prevent the crimeswhich they may produce, but to create new ones;it is to change at will the ideas of virtue and vice,which, at other times, we are told, are eternal andimmutable. To what a situation should we be

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reduced, if every thing were to be forbidden thatmight possibly lead to a crime? 'Ve must bedeprived of the use of our senses. For one motivethat induces a man to commit a real crime, thereare a thousand which excite him to those indif-.ferent actions, which are called crimes by badlaws. If then, the probability that a crime willbe committed be in proportion to the number ofmotives, to extend the sphere of crimes will beto increase that probability. The generality oflaws are only exclusive privileges ; the tributeof all to the advantage of a few.

Would you prevent crimes I Let the laws beclear and simple; let the entire force of thenation be united in their defence; let them beintended rather to favour every individual, thanany particular classes of men; let the laws befeared, and the laws only. The fear of the lawsis salutary, but the fear of men is a fruitful andfatal source of crimes. Men enslaved are morevoluptuous, more debauched, and more cruelthan those who are in a. state of freedom. Thesestudy the sciences, the interest of nations, havegreat objects before their eyes, and imitate them;but those, whose views are confined to the presentmoment, endeavour, midst the distraction of riotand debauchery, to forget their situation; accus-

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tomed to the uncertainty of all events, for thelaws determine none, the consequence of theircrimes becomes problematical, which gives anadditional force to the strength of their passions.

In a nation, indolent from the nature of theclimate, the uncertainty of the laws confirms andincreases men's indolence and stupidity. In avoluptuous but active nation, this uncertaintyoccasions a multiplicity of cabals and intrigues,which spread distrust and diffidence through thehearts of all, and dissimulation and treacheryare the foundation of their prudence. In a braveand powerful nation, this uncertainty of thelaws is at last destroyed, after many oscillationsfrom liberty to slavery, and from slavery toliberty again.

CHAPTER XLII.

OF THE SCIENCES.

WOULD you prevent crimes 1 Let liberty beattended with knowledge. As knowledge extends,the disadvantages which attend it diminish, and

eRDIES AXD PUK1SII \1 l:~'l R. 151the advantages increase. A daring impostor, whois always a man of some genius, is adored by theignorant populace, and despised by men of under-standing. Knowledge facilitates the compurisonof objects, by shewing them in different pointsof view. When the clouds of ignorance aredispelled by the radiance of knowledge, aut.horitytrembles, but the force of the laws remainsimmoveable. Men of enlightened understandingmust necessarily approve those useful conveu-tions, which are the foundation of public safety;they compare, with the highest sntisfaction, theinconsiderable portion of liberty of which theyare deprived, with the sum total sacrificed byothers for their security; observing that theyhave only given up the pernicious liberty ofinjuring their fellow-creatures, they bless thethrone, and the laws upon which it is estab-lished.

It is false that the sciences have always beenprejudicial to mankind. When they were so,.the evil was inevitable. The multiplication ofthe human species on the face of the earth intro-duced war, the rudiments of arts, and the firstlaws, which were temporary compacts arisingfrom necessity, and perishing with it. This wasthe first philosophy, and its few elements were

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just, as indolence and want of sagacity, in theearly inhabitants of the world, preserved themfrom error.

But necessities increasing with the number ofmankind, stronger and more lasting impressionswere necessary to prevent their frequent relapsesinto a state of barbarity, which became everyday more fatal. The first religious errors, whichpeopled the earth with false divinities, andcreated a world of invisible beings to governthe visible creation, were of the utmost service tomankind. The greatest benefactors to humanitywere those who dared to deceive, and led pliantignorance to the foot of the altar. By present-ing to the minds of the vulgar, things out of thereach of their senses, which fled as they pursued,and always eluded their grasp; which, as theynever comprehended, they never despised, theirdifferent passions were united, and attached to So

single object. This was the first transition of allnations from their savage state. Such was thenecessary, and perhaps the only bond of all-societies at their first formation. I speak notof the chosen people of God, to whom the mostextraordinary miracles, and the most signalfavours, supplied the place of human policy.But as it is the nature of error to subdivide


itself ad infinitum, so the pretended knowledgewhich sprung from it transformed mankind intoa blind fanatic multitude, jarring and destroyingeach other in the labyrinth in which they wereinclosed; hence it is not wonderful, that Romesensible and philosophic minds should regret theancient state of barbarity. This was the firstepocha in which knowledge, or rather opinions,were fatal.

The second may be found in the difficult andterrible passage from error to truth, from dark-ness to light. The violent shock between a massof errors, useful to the few and powerful, andthe truths so important to the many and theweak, with the fermentation of passions excitedon that occasion, were productive of infiniteevils to unhappy mortals. In the study ofhistory, whose principal periods, after certainintervals, much resemble each other, we frequentlyfind, in the necessary passage from the obscurityof ignorance to the light of philosophy, and fromtyranny to liberty, its natural consequence, onegeneration sacrificed to the happiness of the next.But when this flame is extinguished, and theworld delivered from its evils, truth, after a veryslow progress, sits down with monarchs on thethrone, and is worshiped in the assemblies of

20

154 AN ESSAY ON

nations. Shall we then believe, that light dif-fused among the people is more destructive thandarkness, and that the knowledge of the relationsof things can never be fatal to mankind?

Ignorance may indeed be less fatal than asmall degree of knowledge, because this adds, tothe evils of ignorance, the inevitable errors of aconfined view of things on this side the boundsof truth; but a man of enlightened understanding,appointed guardian of the laws, is the greatestblessing that a sovereign can bestow 011 a nation.Such a man is accustomed to behold truth, andnot to fear it; unacquainted with the greatestpart of those imaginary and insatiable necessi-ties, which so often put virtue to the proof, andaccustomed to contemplate mankind from themost elevated point of view, he considers thenation as his family, and his fellow citizens asbrothers; the distance between the great and thevulgar appears to him the less, as the number ofmankind he has in view is greater.

The philosopher has necessities and interestsunknown to the vulgar, and the chief of these isnot to belie in public the principles he taught inobscurity, and the habit of loving virtue for itsown sake. A few such philosophers would con-stitute the happiness of a nation; which however

CRIMES AND PU1'ISHMENTS. 155

would be but of short duration, unless by goodlaws the number were so increased as to lessenthe probability of an improper choice.

CHAPTER XLIII.

O~' MAGISTRATES.

ANOTHER method of preventing crunes IS, tomake the observance of the laws, and not theirviolation, the interest of the magistrate.

The greater the number of those who consti-tute the tribunal, the less is the danger of corrup-tion; because the attempt will be more difficult,and the power and temptation of each individualwill be proportionably less. If the sovereign,by pomp and the austerity of edicts, and byrefusing to hear the complaints of the oppressed,accustom his subjects to respect the magistratesmore than the laws, the magistrates will gainindeed, but it will be at the expenee of publicand private security.

156 AN ESSAY ON

CHAPTER XLIV.

OF R}<;WARIJS.

YET another method of preventing crimes 18,

to reward virtue. Upon this subject the laws ofall nations are silent. If the rewards, proposedby academies for the discovery of useful truths,have increased our knowledge, and multipliedgood books, is it not probable that rewards, dis-tributed by the beneficent hand of a sovereign,would also multiply virtuous actions? The coinof honour is inexhaustible, and is abundantlyfruitful in the hands of a prince 'who distributesit wisely.


CHAPTER XLV.

OF EDL"CATION.

FINALLY, the most certain method of prevent-ing crimes, is to perfect the system of education.But this is an object too vast, and exceeds myplan; an object, if I may venture to declare it,which is so intimately connected with the natureof government, that it will always remain a barrenspot, cultivated only by a few wise men.

A great man, who is persecuted by that worldhe hath enlightened, and to whom we are indebtedfor many important truths, hath most amplydetailed the principal maxims of useful education.This chiefly consists in presenting to the mind asmall number of select objects; in substitutingthe originals for the copies, both of physical andmoral phenomena; in leading the pupil to virtueby the easy road of sentiment, and in withholdinghim from evil by the infallible power of necessaryinconveniences, rather than by command, whichonly obtains counterfeit and momentary obe-dience.

'.

158 AN ESSAY ON

CHAPTER XLVI.

OF PARDONS.

As punishments become more mild, clemencyand pardon are less necessary. Happy the nationin which they will be considered as dangerous!Clemency, which has often been deemed a suffi-cient substitute for every other virtue in sover-eigns, should be excluded in a perfect legislation,where punishments are mild, and the proceedingsin criminal cases regular and expeditious. Thistruth will seem cruel to those who live in countries,where, from the absurdity of the laws, and theseverity of punishments, pardons, and the clem-ency of the prince, are necessary. It is indeedone of the noblest prerogatives of the throne, but,at the same time, a tacit disapprobation of thelaws. Clemency is a virtue which belongs tothe legislator, and not to the executor of thelaws; a virtue which ought to shine in the code,and not in private judgment. To shew mankind,that crimes are sometimes pardoned, and thatpunishment is not the necessary consequence, is


to nourish the flattering hope of impunity, and isthe cause of their considering every punishmentinflicted as an act of injustice and oppression.The prince, in pardoning, gives up the publicsecurity in favour of an individual, and, by hisill-judged benevolence, proclaims a public act ofimpunity. Let, then, the executors of the lawsbe inexorable, but let the legislator be tender,indulgent and humane. He is a wise architect,who erects his edifice on the foundation of self-love, and contrives, that the interest of the publicshall be the interest of each individual; who isnot obliged by particular laws, and irregular pro-ceedings, to separate the public good from thatof individuals, and erect the image of publicfelicit y on the basis of fear and distrust; but, likea wise philosopher, he will permit his brethrento enjoy, in quiet, that small portion of happiness,which the immense system, established by thefirst cause, permits them to taste on this earth,which is but a point in the universe.

A small crime is sometimes pardoned, if theperson offended chuses to forgive the offender.This may be an act of good nature and humanity,but it is contrary to the good of the public. Theright of punishing belongs not to any individualin particular, but to society in general, or the

160 AN ESSAY ON

sovereign. He may renounce his own portion ofthis right, but cannot give up that of others.

CHAPTER XLVII.

COl\CLUSION.

I CONCLUDE with this reflection, that the severityof punishments ought to be in proportion to thestate of the nation. Among a people hardly yetemerged from barbarity, they should be mostsevere, as strong impressions are required; butin proportion as the minds of men becomesoftened by their intercourse in society, theseverity of punishments should be diminished,if it be intended, that the necessary relationbetween the object and the sensation should bemaintained.

From what I have written results the follow-ing general theorem, of considerable utility,though not conformable to custom, the commonlegislator of nations.

That a punishment may not be an act qf violence,


of one or of many, against a private member of society,it slwuld be public, immediate and necessary; the leastpossible in the case given; pro-portioned to the crime,and determined by the laws.

21

•

A

COMMENTARY

ON THE BOOS:: OP


CHAPTER I.

THE OCCASION OF THIS COMMENTARY.

HAVING read, with infinite satisfaction, thelittle book on Crimes and Punishments, whichin morality, as in medicine, may be comparedto one of those few remedies, capable of allevi-ating our sufferings; I flattered myself that itwould be a means of softening the remains ofbarbarism in the laws of many nations; I hopedfor some reformation in mankind, when I was

164 A COMMENTARY ON

informed, that, within a few miles of my abode,they had just hanged a girl of eighteen, beautiful,well made, accomplished, and of a very reputablefamily.

She was culpable of having suffered herself tohe got with child, and also, of having abandonedher infant. This unfortunate girl, flying fromher father's house, is taken in labour, and, with-out assistance, is delivered of her burden by theside of a wood. Shame, which in the sex is apowerful passion, gave her strength to returnhome, and to conceal her situation. She left herchild exposed; it is found the next morning; themother is discovered, condemned and executed.

The first fault of this unhappy victim oughtto have been concealed by the family, or ratherclaims the protection of the laws, because it wasincumbent on her seducer to repair the injuryhe had done; because weakness hath a right toindulgence; because concealing her pregnancymay endanger her life; because declaring hercondition destroys her reputation, and becausethe difficulty of providing for her infant is agreat additional misfortune.

Her second fault is more criminal. She aban-dons the fruit of her weakness, and exposes it toperish.

CRI!IIEB AND PUNISlIl\IENTS. 165

But became a child is dead, is it absolutelynecessary to kill the mother 1 She did not killthe child. She flattered herself, that Rome pa~·senger would have compassion on the innocentbabe. It is even possible that she might intendto return and provide for it; a scntimcut 1'0

natural in the breast of a mother, that it ought tobe presumed. The law in the country of whichI am speaking is, indeed, positively against her,But is it not an unjust, inhuman, and perniciouslaw? Unjust, because it makes no distinctionbetween her who murders, and her who abandonsher infant; inhuman, because it punishes wi th deatha too great desire of concealing a weakness ; per·nicious, because it deprives the state of a fruitfulsubject, in a country that wants inhabitants.

Charity hath not yet established, in that nation,houses of reception for exposed infants. Wherecharity is wanting, the law is always cruel. Itwere much better to prevent, than to think onlyof punishing these frequent misfortunes. Theproper object of jurisprudence is, to hinder thecommission of crimes, rather than condemn todeath a weak woman, when it is evident that hertransgression was unattended with malice, andthat she hath already been severely punished bythe pangs of her own heart.

166 A COMMENTARY ON

Insure, as far as possible, a resource to thosewho shall be tempted to do evil, and JOu willhave less to punish.

CHAPTER II.

OF PUNISHMENTS.

THIS misfortune, and this very hard law, withwhich I was so sensibly affected, prompted me tocast my eyes on the criminal code of nations.The humane author of the Essay on Crimes andPunishments, had but too much cause to com-plain, that the latter frequently exceed the former,and are sometimes detrimental to the state theywere intended to serve.

Those ingenious punishments, the ne plus ultraof the human mind, endeavouring to render deathhorrible, seem rather the inventions of tyrannythan of justice.

The punishment of the wheel was first intro-duced in Germany in the times of anarchy, whenthose who usurped the regal power resolved to

CRIMES AND PUNISIlMENTS. 167

terrify, with unheard-of torments, those whoshould dispute their authority. In England theyripped open the belly of a man guilty of high-treason, tore out his heart, dashed it in his face,and then threw it into the fire. And whereindid this high-treason frequently consist 1 In havingbeen, during a civil war, faithful to an unfortunateking; or, in having spoken freely on the doubtfulright of the conqueror. At length, their mannerswere softened; they continued to tear out theheart, but not till after the death of the offender.The apparatus is dreadful, but the death is mild,if death can ever be mild.

CHAPTER III.

ON THE PUNISH}[ENT OF HERETICS.

THE denunciation of death to those who, incertain dogmas, differed from the establishedchurch, was peculiarly the act of tyranny. NoChristian emperor, before the tyrant Maximus,ever thought of condemning a man to punishment

168 A COMMENTARY ON

merely for points of controversy. It is true, in-deed, that two Spanish bishops pursued to deaththe Priscilianists under Maximus; but it is alsotrue, that this tyrant was willing to gratify thereigning party with the blood of heretics. Barba-rity and justice were to him indifferent, Jealousof Theodosius, a Spaniard like himself, he en-deavoured to deprive him of the empire of theEast, as he had already obtained that of the West.Theodosius was hated for his cruelties; but hehad found the means of gaining to his party theheads of the chureh. Maximus was willing todisplay the same zeal, and to attach the Spanishbishops to his faction. He flattered both the oldand the new religion; he was as treacherous asinhuman, as indeed were all those who at thattime either pretended to, or obtained empire.That vast part of the world was then governedlike Algiers at present. Emperors were createdand dethroned by the military power, and wereoften chosen from among nations that werereputed barbarous. Theodosius opposed to hiscompetitor other barbarians from Scythia. Hefilled the army with Goths, and surprised Alaricthe conqueror of Rome. In this horrible con-fusion, each endeavoured to strengthen his partyby every means in his power.


Maximus having caused the Emperor Gratian,the colleague of Theodosius, to he assassinntedat Lyons, meditated the destruction of Valen-tinian the second, who, during his infancy, hadbeen made successor to Gratian. He assembledat Treves a powerful army, composed of Gaulsand Germans. He caused troops to be levied inSpain, when two Spanish bishops, ldacio andIthacus, or Itacius, both men of credit, cameand demanded of him the blood of Priscilian,and all his adherents, who were of opinion, thatsouls were emanations from God; that the Trinitydid not contain three hypostases; and moreover,they carried their sacrilege 80 far as to fast onSundays. Maximus, half Pagan, and half Chris-tian, soon perceived the enormity of these crimes.The holy bishops, Idacio and Itacius, obtainedleave to torture Priscilian and his accomplicesbefore they were put to death. They were bothpresent, that things might be done according toorder, and they returned blessing God, andnumbering Maximus, the defender of the faith,among the saints. But Maximus being afterwarddefeated by Theodosius, and assassinated at thefeet of his conqueror, had not the good fortuneto be canonized.

It is proper to observe, that Saint Martin,~2

170 A COMMENTARY ON

bishop of Tours, who was really a good man,solicited the pardon of Priscilian ; but being him-self accused of heresy by the bishops, he returnedto Tours, for fear of the torture at Treves.

As to Priscilian, he had the consolation, afterhe was hanged, of being honoured by his sect asa martyr. His feast was celebrated, and wouldbe celebrated still, if there were any Priscilian-ists remaining.

This example made the entire church tremble;but it was soon after imitated and surpassed.Priscilianists had been put to death by the sword,the halter, and by lapidation. A young lady ofquality, suspected to have fasted on a Sunday,was at Bourdeaux only stoned to death. Thesepunishments appeared too mild; it was provedthat God required that heretics should be roastedali ve. The peremptory argument, in support ofthis opinion was, that God punishes them in thatmanner in the next world, and that every prince,or his representative, even down to a petty consta-ble, is the image of God in this sublunary world.

On this principle it was, that all over Europethey burnt witches and sorcerers, who weremanifestly under the empire of the devil; andalso heterodox Christians, which were deemedstill more criminal and dangerous.


It is not certainly known, what was the crimeof those priests who were burnt at Orleans inthe presence of king Robert and his wife Con-stantia, in the year 1022. How indeed should itbe known? there being, at that time, but a smallnumber of clerks and monks that could write.All we certainly know is, that Robert and hiswife feasted their eyes with this abominablespectacle. One of the sectaries had been con-fessor to her majesty, who thought she could notbetter repair the misfortune of having confessedto a heretic, than by seeing him devoured by theflames.

Custom becomes law; from that period to thepresent time, a space of more than seven hundredyearfl, the church hath continued to burn thosethat are guilty, or supposed guilty, of an error inopimon.

172 A COMMENTARY ON

CHAPTER IV.

ON TIlE EXTlRl'.\TION OF HER1,S1',

IT seems necessary to distinguish an heresy ofopinion from faction, From the first ages ofChristianity opinions have been different. TheChristians of Alexandria were, in many points,of a different opinion from those of Antioch.The Achaians differed from the Asiati cs, Thisdiversity of opinion existed from the beginning,and probably will continue for ever. JesusChrist, who could have united all the faithful inthe same sentiments, did it not; and thereforewe may conclude that it was not his design; butthat he chose rather to exercise all his churchesin acts of indulgence and charity, by permittingdifferent systems, yet all agreeing to acknowledgehim their lord and master. These several sects,so long as they were tolerated by the emperors,or concealed from their sight, had it not in theirpower to prosecute each other, being equally sub-ject to the Roman magistrates; they could onlydispute. If they were persecuted, they equally


claimed the privilege of nature; "Suffer us,"they said, "to adore our God in peace, and do notrefuse us the liberty you grant to the Jews:"Every sect may now urge the same argument totheir oppressors. They may say to those whowant privileges to the Jews; "Treat us as youtreat the sons of Jacob; let us, like them, prayto God according to our conscience. Our opinionwill no more injure your state, than Judaism.You tolerate the enemies of Jesus Christ, tolerateus who adore him, and who differ from you only intheological subtleties. Do not deprive yourselvesof useful subjects; useful in your manufactures,your marine, and the cultivation of your lands.Of what importance is it, that their creed besomewhat different from yours 1 You want theirlabour, and not their catechism 1"

Faction is quite a different thing. It alwayshappens, that a persecuted sect degenerates intofaction. The oppressed naturally unite and ani-mate each other; and are generally more indus-trious in strengthening their party, than theirpersecutors in their extermination. They musteither destroy or be destroyed. So it happenedafter the persecution excited in 304, by Galerius,in the two last years of Dioclesian. The Chris-tians, having been favoured by that emperor

174 A COMMENTARY ON

during eighteen years, were become too numerousand too rich to be exterminated. They joinedChlorus; they fought for his son Constantine,and a total revolution of the empire was theconsequence.

Small events may be compared with great,when they are produced by the same spirit.Revolutions of a similar kind happened in Hol-land, in Scotland, and in Switzerland. WhenFerdinand and Isabella drove the Jews out ofSpain, where they were established not onlybefore the reigning family, but before the Moors,the Goths, or even the Carthaginians; if theJews had been as warlike as they were rich, theymight easily, in conjunction with the Arabs, haveeffected a revolution.

In short, no sect ever changed the government,unless excited by despair. Mahomed himself suc-ceeded only because he was driven from Mecca,and a reward offered for his head.

Would you prevent a sect from overturning thestate, imitate the present wise conduct of' Eng-land, of Germany, of Holland; use toleration.The only methods, in policy, to be taken with anew sect, are, to put to death the chief and allhis adherents, men, women, and children, withoutsparing one individual; or to tolerate them, when

CRIMESAND PUNISHMENTS. 175

numerous. The first method is that of a monster;the second of a wise man.

Chain your subjects to the state by theirinterest. Let the Quaker and the Turk findtheir advantage in living under your laws.Religion is of God to man; the civil law is ofyou to your people.

CHAPTER V.

OF PROFANATION.

LEWISIX. king of France, who for his virtueswas numbered among the saints, made a lawagainst blasphemers. He condemned them to anew punishment; their tongues were pierced witha hot iron. It was a kind of retaliation; thesinning member suffering the punishment. Butit was somewhat difficult to determine what wasblasphemy. Expressions frequently escape froma man in a passion, from joy, or even in conver-sation, which are merely expletives, such as thelela and the '/Jab of the Hebrews, the pol and the

176 A CO~ENTARY ON

edepol of the Latins, as also per Deos immoriales,an expression frequently used, without the leastintention of swearing by the immortal gods.

The words which are called oaths and blas-phemy, are commonly vague terms that may bevariously interpreted. The law by which theyare punished, seems to be founded on that of theJews, which says: Thou shalt not take the name ofthe Lord thy God in vain. The best. commentatorsare of opinion, that this commandment relates toperjury; and there is the more reason to believethem right, as the word shave, which is translatedin vain, properly signifies perjury. Now, whatanalogy can there be between perjury and Cabo deDios, Cadedis, Sangbleu, Ventrebleu, Corpo de Dio, etc. 1

It was customary with the Jews to swear bythe life of God, as the Lord liveth: the phrase wascommon; so that it was lying in the name of Godthat was forbidden.

Philip Augustus, in 1181, condemned the no-bility who should pronounce the words which aresoftened in the terms Tetebleu, Ventrebleu, CorblsJ.,Sanghleu, to pay a fine, and the plebeians to hedrowned. The first' part of this law seems puerile,the latter abominable. It was an outrage tonature, to drown one man for a. crime for whichanother paid a few pence of the money of those


times. So that this law, like many other, re-mained unexecuted, especially when the king wasexcommunicated, and his kingdom interdicted byPope Celestine III.

Saint Lewis, transported with zeal, ordered in-discriminately, that whosoever should pronouncethese indecent words,. should have his tonguebored, or his upper lip cut off. A citizen of Paris,having suffered this punishment, complained toPope Innocent IV. This pontiff remonstrated tothe king that the punishment was too great furthe crime, which however had no effect upon hismajesty. Happy had it been for mankind, if thepopes had never affected any other superiorityover kings.

The ordinance of Lewis XIV. says, "Thosewho shall be convicted of having sworn by, orblasphemed the holy name of God, of his mostholy mother, or of his saints, shall, for the firstoffence, pay a fine; for the second, third, andfourth, a double, triple, and quadruple fine; forthe fifth, shall be put in the stocks; for the sixth,shall stand in the pillory, and lose his upper lip;for the seventh, shall have his tongue cut out."

This law appears to be humane and just, aa itinflicts a cruel punishment only on a seven-foldrepetition, which can hardly be presumed.

23

178 A COMMENTARY ON

But with regard to more atrocious profanations,which are called Sacrilege, the criminal ordinancementions only rubbing of churches; it takes nonotice of public impieties, perhaps because theywere not supposed to happen, or were too difficultto specify. They are left therefore to the discre-tion of the judge; and yet nothing ought to beleft to discretion.

In such extraordinary cases, how is the judgeto act 1 He should consider the age of the offender,the nature and degree of his offence, and particu-larly the necessity of a public example. Proqualitate persO'TUJ'"quoque rei conditione et temporis eteiaii« et sexus, vel clemeaiius siaiuendum, If the lawdoes not expressly say that such a crime shall bepunished with death, what judge shall think him-self authorised to pronounce that sentence? Ifthe law be silent; if nevertheless a punishmentbe required, the judge ought certainly, withouthesitation, to decree the least severe, because heIS a man.

Sacrilegious profanations are never committedexcept by young debauchees. Would you punishthem as severely as if they had murdered abrother 1 Their youth pleads in their favour.They are not suffered to dispose of their posses-sions, because they are supposed to want maturity

CRIMES AXD PUNISHIIIENTS. 179

of judgment, sufficient to foresee the consequencesof an imprudent transaction. Is it not thereforenatural to suppose, that they are incapable offoreseeing the consequences of their impiety?

Would you treat a wild young man, who, inhis phrenzy, had profaned a sacred image, with-out stealing it, with the same rigour that youpunished a Brinvilliers, who poisoned his fatherand his whole family 1

There is no law against the unhappy youth,and you are determined to make one that shallcondemn him to the severest punishment! Hedeserved chastisement, but did he deserve suchexcruciating torture, and the most horrible death?

But he had offended God! True, most griev-ously. Imitate God in your proceedings againsthim. If he be penitent, God forgives him.Impose a penance, and let him be pardoned.

Your illustrious Montesquieu hath said: It isour duty to honour the Deity, and not to revengehim. Let us weigh these words. They do notmean, that we should neglect the maintenanceof public decorum; but, as the judicious authorof the preceding Essay observes, that it is absurdfor an insect to pretend to revenge the SupremeBeing. A village magistrate, or the magistrateof a city, is neither a Moses nor a Joshua.

180 A COMMENTARY ON

CHAPTER VI.

OF THE INDULGENCE OF THE ROMANS IN )(ATTERS O:r

RELIGION.

THE amazing contrast between the RomanIaws, and the barbarous institutions by whic~they were succeeded, hath often been the subjectof conversation among the speculative part ofmankind.

Doubtless the Roman senate held the supremeGod in as great veneration as we; and professedas much esteem for their secondary deities as wefor our saints. Ab Jove principium was theircommon formule. Pliny, in his panegyric onthe good 'I'rajan, attests, that the Romans neveromitted to begin their discourse and affairs byinvoking the Deity. Cicero and Livy tell us thesame thing. No people were more religious;but they were too wise, and too great, to descendto the punishment of idle language or philosophicopinions. They were incapable of inflictingbarbarous punishments on those who, with Cicero,himself an augur, had no faith in auguries; or

cnraes AND l'U!'ISIlMEr\·l~'. 181

on those who, like Ceesar, asserted in full senate,that 'the gods do not punish men after death.

It hath often been remarked that the senatepermitted the chorus in the Troad to sing, Thereis nothing after death, and death itsel] is ndhing,You ask, what becomes r{ the dead? They are wherethey were ere they were born:"

Was ever profanation more flagrant than this 1From Ennius to Ausonius all his profanation,notwithstanding the respect for divine worship.Why were these things disregarded by the senate 1Because they did not, in any wise, affect thegovernment of the state; because they disturbedno institution, nor religious ceremony. Thepolice of the Romans was nevertheless excellent;they were nevertheless absolute masters of thebest part of the world, till the reign of Theo-dosius the second.

It was a maxim of the Romans, Deorum offense,Diis cur(£, Offences against the gods concern thegods only. The senate, by the wisest institution,being at the head of religion, were under noapprehensions that a convocation of priests shouldforce them to revenge the priesthood under apretext of revenging Heaven. They never said,let us tear the impious asunder, lest we ourselves

• Post mortem nihil est, mors ipsaque flillll. etc, SENECA.,

182 A CO)D1EN'fARY ON

be deemed impious; let us shew the priesthood,by our cruelty, that we are no less religious thanthey.

But our religion is more holy than that of theRomans, and consequently impiety is a greatercrime. Granted. God will punish it. The partof man is, to punish that which is criminal inthe public disorder which the impiety hathoccasioned. But if in the act of impiety thedelinquent hath not even stolen a handkerchief;if the ceremonies of religion have been in nowise disturbed, shall we, as I said before, punishthe impiety as we would punish parricide? TheMarshal d'Ancre had caused a white cock to bekilled when the moon was at full: ought wetherefore to burn the Marshal D'Ancre ?

Est modus in rebus, aunt certi deniquefines;N ec scutica dignum homoi', secUre ftagello.

CRIMES AND PUNlSlBlE~TS. 183

CHAPTER VII.

OX rus CRIME OF PREACHING; AND OF AN'fIlONY.

A CALVANIST teacher, who, in certain provinces,preaches to his flock, if he be detected, is pun-ished with death; and those who have givenhim a supper, or a bed, are sent to the gullies forlife.

In other countries, if a Jesuit be caught preach-ing, he is hanged. Is it to avenge God that thisCalvinist and this Jesuit are put to death? Haveboth parties built upon the following Evangelicallaw? If he neglect to hear the church, let him beunto thee as an heathen man and a publican. But theEvangelist does not order that this heathen andthis publican should be hanged.

Or have they built on this passage in Deuter-onomy:* If among you a prophet arise; and thatwhich he hath said come to pass; and he sayeth untoyou, let us follow strange gods; and if thy brother, orthy son, or thy wife, or the friend of thy heart, sayunto thee, Come, let us follow strange gods: let them

• Chap. xiir.

184 A. COMMENTARY ON

be straightways killed, strike thou first, and all thepeople after thee. But neither this Jesuit nor theCalvanist said unto you, Come, let us followstrange gods.

The counsellor Dubourg, the monk Jehanehouvin, named Calvin, the Spanish physicianServetus, the Calabrian Gentilis, all worshippedthe same God: and yet the president Minardcaused counsellor Dubourg to be burnt; and Du-bourg's friends caused president Minard to beassassinated; Jehan Calvin caused the physicianServetus to be roasted; and had likewise the con-solation to be a principal means of bringing theCalabrian Gentilis to the block; and the success-ors of Jehan Calvin burnt Anthony. Was itreason, or piety, or justice, that committed thesemurders?

This history of Anthony is one of the mostsingular which the annals of phrenzy hath pre-served. I read the following account in a verycurious manuscript; it is in part related by JacobSpon.

Anthony was born at Brieu in Lorra.in, ofcatholic parents, and he was educated by theJesuits at Pont a Mousson. The preacher Feriengaged him in the protestant religion at Metz.Having returned to Nancy he was prosecuted as

CRIMES AND PUNISHlIIENTS. 185

a heretic, and, had he not been saved by a friend,would certainly have been hanged. He fled forrefuge to Sedan, where, being taken for a Papist,he narrowly escaped assassination.

Seeing by what strange fatality his life was notin safety, either among Papists or Protestants, hewent to Venice and turned Jew. He was posi-ti vely persuaded, even to the last moments of hislife, that the religion of the Jews was the onlytrue religion; for that, if it was once true, it mustalways be so. The Jews did not circumcise him,for fear of offending the state; but he was no lessinternally a Jew. He now went to Geneva,where, concealing his faith, he became a preacher,was president of the college, and finally what iscalled a minister.

The perpetual combat in his breast betweenthe religion of Calvin, which he was obliged topreach, and that of Moses, which was the onlyreligion he believed, produced a long illness. Hebecame melancholy, and at last quite mad, cryingaloud, that he was a Jew. The ministers of thegospel came to visit him, and endeavoured tobring him to himself; but he answered, "that headored none but the God of Israel; that it wasimpossible for God to change; that God couldnever have given a law, and inscribed it with his

:!-!

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own hand, with an intention that it should beabolished." He spoke against Christianity, andafterwards retracted all he had said, and evenwrote his confession of faith, to escape punish-ment; but the unhappy persuasion of his heartwould not permit him to sign it. The council ofthe city assembled the clergy, to consult what wasto be done with the unfortunate Anthony. Theminority of these clergy were of opinion, thatthey should have compassion on him, and ratherendeavour to cure his disease than punish him.The majority determined that he should be burnt,and he was burnt. This transaction is of theyear 1632.* A hundred years of reason andvirtue are scarce sufficient to expiate such a deed.

• Spon, p. 500. Guy Vances.


CHAPTER VIII.

THE HISTOUY OF SDION MORIN.

THE tragical end of Simon Morin is not lesshorrible than that of poor Anthony. It wasmidst the feasting, pleasures, and gallantry of abrilliant court; it was even in the times of thegreatest licentiousness, that this unfortunatemadman was burnt at Paris, in the year 1663.Imagining that he had seen visions, he carriedhis folly so far, as to believe that he was sentfrom God, and that he was incorporated withJesus Christ.

The Parliament very wisely condemned himto be confined in a mad-house. What was veryremarkable, there happened to be confined in thesame mad-house another fool, who called himselfGod the Father. Simon Morin was so struckwith the folly of his companion, that he acknowl-edged his own, and appeared for a time to haverecovered his senses. He declared his repent-ance, and, unfortunately for himself, obtained hisliberty.

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Some time after, he relapsed into his formernonsense, and began to dogmatize. HiH unhappydestiny brought him acquainted with St. SorlinDesmarets, who, for some months, was his friend,but who afterwards, from jealousy, became hismost cruel persecutor.

This Desmarets was no less a visionary thanMorin. His first follies indeed were innocent.He printed the Tragi-Comedies of Erigone andMirame, with a translation of the Psalms; theRomance of Ariane, and the Poem of Clovis,with the office of the holy Virgin turned intoverse. He likewise published dithyrambic poems,enriched with invectives against Homer andVirgil. From this kind of follies he proceededto others of a more serious nature. He attackedPort-Royal, and after confessing that he had per-verted some women to atheism, he commencedprophet. He pretended that God had given him,with his own hand, the key to the treasure ofthe Apocalypse, that with this key he wouldreform the whole world, and that he shouldcommand an army of an hundred and fortythousand men against the Jansenists.

Nothing could have been more reasonable andmore just, than to have confined him in thesame place with Simon Morin; but can it be


believed, that he found credit with the JesuitAnnat, the king's confessor? whom he persuaded,that this poor Simon Morin would establish asect almost as dangerous as the J ansenists them-selves. In short, carrying his infamy so far asto turn informer, he obtained an order to seizethe person of his rival. Shall I tell it! SimonMorin was condemned to be burnt alive?

In conducting him to the stake, there wasfound, in one of his stockings, a paper in whichhe begged forgiveness of God for all his errors.This ought to have saved him; but no: thesentence was confirmed, and he was executedwithout mercy.

Such deeds are enough to make a man's hairbristle with horror. Yet where is the countrythat hath not beheld such shocking spectacles?Mankind universally forget that they are brothers,and persecute each other even to death. Let usconsole ourselves with the hope, that such dread-ful times are passed, never more to return.

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CHAPTER IX.

OF WITCHES.

IN the year 1748, in the bishopric of Wurts-burg, an old woman was convicted of witchcraftand burnt. This was an extraordinary phe-nomenon in the present century. But howincredible it seems, that a people, who boastedof their reformation, and of having trampledsuperstition under their feet, and who flatteredthemselves that they had brought their reason toperfection; is it not wonderful, I say, that sucha people should have believed in witchcraft;should have burnt old women accused of thiscrime, and that above a hundred years after thepretended reformation of their reason ?

In the year 1652, a country woman, namedMichelle Chaudron, of the little territory ofGeneva, met the devil in her way from the city.The devil p;aye her a kiss, received her homage,and imprinted on her upper lip and on her rightbreast, the mark which he is wont to bestowupon his favourites. This seal of the devil is a


little sign upon the skin, which renders it insen-sible, as we are assured by all the demonographi-cal civilians of those times.

The devil ordered Michelle Chaudron to be-witch two young girls. She obeyed her masterpunctually. The parents of the two girls accusedher of dealing with the devil. The girls, beingconfronted with the criminal, declared, that theyfelt a continual prickling in some parts of theirbodies, and that they were possessed. Physicianswere called, at least men that passed for physi-cians in those days. They visited the girls. Theysought for the seal of the devil on the body ofMichelle, which seal is called, in the verbal pro-cess, the Satanical mark. Into one of these marksthey plunged a long needle, which was alreadyno small torture. Blood issued from the wound,and Michelle testified hy her cries that the partwas not insensible. The judges not finding suffi-cient proof that Michelle Chaudron was a witch,ordered her to be tortured, which infallibly pro-duced the proof they wanted. The poor wretch,overcome by torment, confessed at last everything they desired.

The physicians sought again for the Satanicalmark, and found it in a little black spot on oneof her thighs. Into this they plunged their

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needle. The poor creature, exhausted and almostexpiring with the pain of the torture, was in-sensible to the needle, and did not cry out. Shewas instantly condemned to be burnt; but theworld beginning at this time to be a little morecivilized, she was previously strangled.

At this period every tribunal in Europe re-sounded with such judgments, and fire and faggotwere universally employed against witchcraft aswell as heresy. The Turks were reproached withhaving amongst them neither sorcerers, witches,nor demoniacs; and the want of the latter wasconsidered as an infallible proof of the falsity oftheir religion.

A zealous friend to the public welfare, tohumanity, and to true religion, in one of his writ-ings in favour of innocence, informs us, that therehave been above a hundred thousand witches con-demned to die by Christian tribunals. If, tothese lawful massacres, we add the much superiornumber of heretics sacrificed, our part of theglobe will appear one vast scaffold covered withexecutioners and victims, and surrounded byjudges, guards, and spectators.

oarass AND PUNISHMENTS. 193

CHAPTER X.

ON THE PUNISHMENT OF DEATH.

I T hath long since been observed, that a manafter he is hanged is good for nothing, and thatpunishments invented for the good of society,ought to be useful to society. It is evident, thata score of stout robbers, condemned for life tosome public work, would serve the state in theirpunishment, and that hanging them is a benefitto nobody but the executioner. Thieves, in Eng-land, are seldom punished with death, but aretransported to the colonies. This is also practisedin Russia, where not one criminal was executedduring the whole reign of the autocratical Elisa-beth. Catherine II. who hath succeeded her,with much more genius, follows her example;yet crimes are not multiplied by this humanity;and it generally happens that the criminals sentto Siberia in time become honest people. Thesame is observed in the English colonies. Weare astonished at the change, and yet nothing canbe more natural. The condemned arc forced to

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continual labour for a livelihood. The oppor-tunities of vice are wanting. They marry andmultiply. Oblige men to work, and you certainlymake them honest. I~ is well known, that atro-cious crimes are not committed in the country,unless when there is too much holiday, and con-sequently too much idleness, and consequentlytoo much debauchery.

The Romans never condemned a citizen todeath, unless for crimes which concerned thesafety of the state. These our masters, our firstlegislators, were careful of the blood of their fel-low-citizens; but we are extravagant with theblood of ours.

The question hath been frequently debated,whether a judge ought to have the power to punishwith death, when the punishment is undeterminedby the law 1 This question was solemnly agitatedin the presence of the Emperor Henry VII. whodecreed that no judge should have such a power."

There are some criminal cases which are eitherso new, so complicated; and so unaccountable asto have escaped the provision of the laws, andwhich, therefore, in some countries are left to thediscretion of the judge. But for one case inwhich the laws permit the death of a criminal

• Boudin de Republica, lib. iii, c. 5.


whom they have not condemned, there are athousand wherein humanity should save whomthe laws have condemned to suffer.

The sword of justice is_in our hands, but weought rather to blunt than to sharpen its edge.It remains within its sheath in the presence ofkings, to inform us that it ought seldomto be drawn.

There have been some judges who were pas-sionately fond of spilling human blood; such WItS

Jefferies in England, and such in France was theman whom they called Coupe-tete. Nature neverintended such men for magistrates, but forexecutioners.

CHAPTER XI.

ON DEATH WARRANTS.

MUST we go to the end of the world, must wehave recourse to the laws of China, to learn howfrugal we ought to be of human blood1 It isnow more than four thousand years that thetribunals of that empire have existed; and it isalso more than four thousand years that the

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meanest subject, at the extremity of the empire,hath not been executed without first transmittinghis case to the emperor, who causes it to be thriceexamined by one of his tribunals; after which hesigns the death warrant, alters the sentence, orentirely acquits.

But it is unnecessary to travel so far for exam-ples of this nature; Europe will abundantly sup-ply us. In England, no criminal is put to death,whose death warrant is not signed by the king.It is also practised in Germany, and in most partsof the north. Such likewise was formerly thecustom in France, and such it ought to be in allpolished nations. A sentence, at a distance fromthe throne, may be dictated by cabal, prejudice,or ignorance. Such little intrigues are unknownto monarchs, who are continually surrounded bygreat objects. The members of the supremecouncil are more enlightened, less liable to preju-dice, and better qualified than a- provincial judge,to determine whether the state require severepunishments. In short, when inferior courts havejudged according to the letter of the law, whichpossibly may be rigorous, the council mitigatesthe sentence according to the true spirit of alllaws, which teaches, never to sacrifice a man, butin evident necessity.


CHAPTER XII.

ox TOItTt'ItE.

ALL mankind being exposed to the attempts ofviolence or perfidy, detest the crimes of whichthey may possibly be the victims: all desire thatthe principal offender and his accomplices may bepunished; nevertheless, there is a natural com-passion in the human heart, which makes all mendetest the cruelty of torturing the accused inorder to extort confession. The law has not con-demned them, and yet, though uncertain of theircrime, you inflict a punishment more horriblethan that which they are to suffer when theirguilt is confirmed. "Possibly thou mayst beinnocent; but I will torture thee that I may besatisfied: not that I intend to make thee anyrecompence for the thousand deaths which Ihave made thee suffer, in lieu of that whichis preparing for thee." Who does not shud-der at the idea? St. Augustin opposed suchcruelty. The Romans tortured their slavesonly; and Quintilian, recollecting that they

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were men, reproved the Romans for such wantof humanity.

If there were but one nation in the worldwhich had abolished the use of torture; if in thatnation crimes were no more frequent than inothers; and if that nation be more enlightenedand more flourishing since the abolition, itsexample surely were sufficient for the rest of theworld. England alone might instruct all othernations in this particular; but England is not.the only nation. Torture hath been abolished inother countries, and with success; the questiontherefore is decided. Shall not a people, whopique themselves on their politeness, pride them-selves also on their humanity? Shall theyobsti-nately persist in their inhumanity, merely becauseit is an ancient custom 1 Reserve, at least, suchcruelty for the punishment of those hardenedwretches, who shall have assassinated the fatherof a family, or the father of his country; butthat a young person, who commits a fault whichleaves no traces behind it, should suffer equallywith a parricide; is not this an useless piece ofbarbarity?

I am ashamed of having said any thing onthis subject, after what hath been already saidby the author of the Essay on Crimes and Pun-


ishments. I ought to have been satisfied withwishing, that mankind may read with attentionthe work of that friend to humanity.

CHAPTER XIII.

OF CF.UTAIX SANGUINARY TRIBUNALS.

Is it credible, that there formerly existed a.supreme tribunal more horrible than the Inqui-sition, and that this tribunal was established byCharlemagne 1 It was the judgment of West-phalia, otherwise called the Vhemic Court. Theseverity, or rather cruelty, of this court, went sofar as to punish with death, every Saxon whobroke his fast during Lent. The same law wasalso established in Franche-Comie, in the begin-ning of the seventeenth century. In the archivesof a little place called St. Claude, situated in It

remote corner of the most mountainous part ofthe county of Burgundy, are preserved the par-ticulars of the sentence and verbal process ofexecution of a poor gentleman named Claude

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Guillon, who was beheaded on the 28th of July,1629. Being reduced to. the utmost poverty,and urged by the most intolerable hunger, heeat, on a fish-day, 'a morsel of horse flesh, whichhad been killed in a neighbouring field. This washis crime. He was found guilty of sacrilege.Had he been a rich man, and had spent twohundred crowns in a supper of sea-fish, sufferingthe poor to die of hunger, he would: have beenconsidered as a person fulfilling every duty. Thefollowing is a copy of his sentence: "Havingseen all the papers of the process, and heard theopinions of the doctors learned in the law, wedeclare the said Claude Guillon to be trulyattainted and convicted of having taken awaypart of the flesh of a horse, killed in the meadowof that town; of having caused the said fleshto be dressed, and of eating the same on Satur-day the 31st of March," etc.

What infamous doctors must these have been,who gave their opinions on this occasion 1 Wasit among the Topinambous, or among the Hotten-tots, that these things happened 1 The VhemicCourt was yet more horrible. Delegates fromthis court were secretly spread over all Germany,taking informations unknown to the accused, whowere condemned without being heard; and fre-

•


quently, in want of an executioner, the youngestjudge performed the office himself." It wasrequisite, in order to be safe from the assassi-nation of this court, to procure letters of exemp-tion from the emperor; and even these weresometimes ineffectual. This chamber of assassinswas not entirely abolished till the reign ofMaximilian I. It ought to have been dissolvedin the blood of its members. The VenetianCouncil of Ten was, in comparison with this, acourt of mercy.

What shall we think of such horrid proceed-ings 1 Is it sufficient to bewail humanity? Therewere some cases that cried aloud for vengeance.

• See the excellent abridgement of the chronological history andlaws of Germany, an. 803.

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CHAPTER XIV.

eN THE DIFFERENCE BETWEEN POLITICAl, AND NATURAL

LAWS.

I CALL natural laws, those which nature dictatesin all ages to all men, for the maintenance ofthat justice which she (say what they will ofher) hath implanted in our hearts. Theft, vio-lence, homicide, ingratitude to beneficent parents,perjury against innocence, conspiracies againstone's country, are crimes that are universallyand justly punished, though with more or lessseverity.

I call political laws, those that are made incompliance with present necessity, whether it beto give stability to the government, or to pre-vent misfortune. For example; being appre-hensive that the enemy may receive intelligencefrom the inhabitants of the city, you shut thegates, and forbid anyone to pass the rampartson pain of death.

Or, fearful of a new sect of people, whopublicly disclaim all obedience to their sovereign,


and secretly consult of means to divest them-selves of that obedience; who preach, that allmen are equal, and that obedience is due to Godalone; who, accusing the reigning sect of super-stition, mean to destroy that which is consecratedby the state; you denounce death against thosewho, in publicly dogmatizing in favour of thissect, may instigate the people to revolt.

Or, two ambitious princes contend for a crown:the strongest gains the prize, and punishes withdeath the partizans of the weaker. The judgesbecome the instruments of vengeance of the newsovereign, and the supports of his authority.

When Richard the Third, the murderer of histwo nephews, was acknowledged king of England,the jury found Sir William Collinburn guilty ofhaving written to a friend of the Duke of Rich-mond, who was at that time raising an army,and who afterwards reigned by the name ofHenry VII. They found two ridiculous linesof Sir William's writing, which were sufficientto condemn him to a horrible death. Historyabounds with such examples of justice.

The right of reprisal is also a law adopted bynations. For example, your enemy has hangedone of your brave captains, for having defendedan old ruined castle against a whole army. One

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of his captains falls into your hands; he is a.worthy man, and you esteem him; neverthelessJOu hang him by way of reprisal. You say it isthe law: that is to say, because your enemy hasbeen guilty of an enormous crime, you must beguilty of another.

These political sanguinary laws exist but for atime; they are temporary, because they are notfounded in truth. They resemble the necessitywhich, in cases of extreme famine, obliges peopleto eat each other: they cease to eat men as soonas brea.d is to be had.

CHAPTER XV.

ON THE CRIME OF HIGH-TREASON. ON TITUS OATES,

AND ON THE DEATH OF A1:"GUSTIN DE THOU.

HIGH-TREASON is an offence committed againstthe security of the commonwealth, or of theking its representative. It is considered asparricide, and therefore ought not to be extendedto offences which bear no analogy to that crime.


In making it high-treason to commit a theft inany house belonging to the state, or even to speakseditious words, you lessen the horror which thecrime of high-treason ought to inspire.

In our ideas of great crimes, there should benothing arbitrary. If a theft from, or impreca-tion against, a father be considered as parricide,you break the bond of filial piety; the son willthen regard his parent as a terrible monster.Every exaggeration in a law tends to its destruc-tion.

In common crimes, the laws of England arefavourable to the accused j but in cases of high-treason they are against him. The Jesuit TitusOates being legally interrogated in the House ofCommons, and having upon his oath declared,that he had related the whole truth, yet after-wards accused the secretary of the Duke ofYork, and several others, of high-treason, andhis information was admitted. He likewise sworebefore the king's council, that he had not seenthe secretary, and afterwards that he had. Not-withstanding these illegalities and contradictions,the secretary was executed.

The same Titus Oates and another witnessdeposed, that fifty Jesuits had conspired to assas-sinate Charles II. and that they had seen com-

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missions, signed by father Oliva, general of theJesuits, for the officers that were to command anarmy of rebels. This evidence was sufficient toauthorize the tearing out the hearts of severalpeople, and dashing them in their faces. Butseriously, can two witnesses be thought sufficientto convict a man whom they have a mind todestroy 1 At least one would imagine they oughtnot to be notorious villains; neither ought thatwhich they depose to be improbable.

Let us suppose that two of the most uprightmagistrates in the kingdom were to accuse a manof having conspired with the Mufti, to circumcisethe whole Council of State, the Parliament, theArchbishop and the Sorbonne; in vain these twomagistrates might swear, that they had seen theletters of the Mufti: it would naturally be sup-posed that they were wrong in their heads. Itwas equally ridiculous to imagine, that the gen-eral of the Jesuits should raise an army in Eng-land, as that the Mufti intended to circumcisethe Court of France. But unhappily Titus Oateswas believed; that there might remain no speciesof atrocious folly, which hath not entered into theheart of man.

The laws of England do not consider as guiltyof conspiracy those who are privy to it. and do


not inform. They suppose the informer as infa-mous as the conspirator is culpable. In France, ifanyone be pri "y to a conspiracy, and does notreveal it, he is punished with death. Lewis XI.against whom conspiracies were frequent, madethis law; a law which a Lewis XII. or a HenryIV. could never have imagined. It not onlyobliges an honest man to divulge a crime, which,by his resolution and advice, he might possiblyprevent; but it renders him liable to be punishedas a calumniator, it being easy for the accused tomanage their affairs in such a manner as to eludeconviction.

This was exactly the case of the truly respect-able Augustin de Thou, counsellor of state, andson of the only good historian of which Francecan boast; equal to Guicciardini in point ofabilities, and perhaps superior in point of impar-tiality.

This conspiracy was against Cardinal deRichelieu, rather than against Lewis XIII. Thedesign was not to betray France to an enemy;for the king's brother, who was the principalauthor of the plot, could never intend to betray akingdom to which he was the presumptive heir,there being only between him and the crown adying brother, and two children in the cradle.

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De Thou was neither guilty in the sight ofGod nor man. One of the agents of the king'sbrother, of the Duke of Bouillon, sovereign princeof Sedan, and of the grand Equerry d'Effiat St.Mars, had communicated their intention to deThou, who immediately went to St. Mars, andendeavoured to dissuade him from the enterprize.If he had informed against him, he had no proof,and must inevitably have fallen a sacrifice to theresentment of the presumpti ve heir of a sovereignprince, of the king's favourite, and to publicexecration. In short, he would have been pun-ished as a malignant calumniator.

The chancellor Seguier was convinced of thisin confronting de Thou with the grand Equerry,when de Thou asked the latter the followingquestion: "Do you not remember, Sir, that therenever passed a day, in which I did not endeavourto dissuade you from the attempt 1" St. Marsacknowledged it to be true. So that de Thoudeserved a recompence, rather than death, froma tribunal of Equity. He certainly deserved tohave been saved by Cardinal Richelieu; buthumanity was not his virtue. There is in thiscase something more than summum jus summainjuria In the sentence of this worthy man weread, "for having had knowledge and participa-


tion of the said conspiracy." It does not say fornot having revealed. So that his crime was, hishaving been informed of a crime; and he waspunished for having had ears and eyes.

All that we can say in extenuation of theseverity is, that it was not the act of Justice her-self, but of a delegated power. The letter of the

-Iaw was positive; but I appeal not only to thelawyers, but to all mankind, whether the spirit ofthe law was not perverted 1 It is a melancholyabsurdity, that a small number of people shouldcondemn as criminal, a man judged innocent bya whole nation, and worth their esteem!

CHAPTER XVI.

OF RELIGIOUS CONFESSION.

J AURIGNY and Balthazar Gerard, who assas-sinated William I. Prince of Orange; Clementthe Dominican, Chatel, Ravaillac, and all theother parricides of those times, went to confes-sion before they committed their crimes. Fanati-

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cism, in that deplorable age, was carried to suchexcess, that confession was an additional engage-ment to the perpetration of villainy; an engage-ment deemed sacred, because confession IS asacrament.

Strada himself says, that Jaurigny non ante[acinus aggredi sustinuii quam ezpiatam necis animamapud Dominicanum sacerdotem celesti pane firmaverit ..

It appears in the interrogatory of Ravaillacthat coming from the Feuillanis, and going towardsthe Jesuits college, he addressed himself to theJesuit d'Aubigny; that after talking to him ofseveral apparitions which he had seen, he shewedhim a knife, on the blade of which was engraved.a heart and a cross; and that he said, this heartsignifies, that the heart of the king should be induced tomake war against the Huguenots. If this d'Aubignyhad informed the king of these words, and de-scribed the man, the best of kings might possiblyhave escaped assassination.

On the 20th of August, 1610, three monthsafter the death of Henry IV. whose wounds wereyet bleeding in the heart~ of his subjects, theadvocate-general Servin, of illustrious memory,required that the Jesuits should be obliged to signthe four following articles:

I. That the Council is superior to the Pope.


II. That the Pope cannot deprive the king ofany of his rights by excommunication.

III. That the ecclesiastics are, like other people,entirely subject to the king.

IV. That a priest who, by confession, is ap-prized of a conspiracy against the king or thestate, should reveal it to the magistrates.

On the 22d, the parliament published an arret,forbidding the Jesuits to instruct youth, until theyhad signed those four articles. But the court ofRome was at that time so powerful, and that ofFrance so weak, that tne arret was disregarded.

It is worth notice, that this court of Rome,which would not suffer confession to be revealedwhen the life of a sovereign was concerned,obliged the confessors to inform the Inquisitionin case any female should accuse another priestof having seduced or attempted to seduce her.Paul IV. Pius IV. Clement VIII. and GregoryXV. ordered this revelation. Itwas a dangeroussnare both for the confessor and the penitent. Itwas converting a sacrament into a register ofaccusations and sacrilege; for by the ancientcanons, and particularly by the Lateran council,under Innocent III. every confessor who revealsconfession, of whatsoever nature it may be, shallbe interdicted and imprisoned for life.

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Thus we see four different Popes, in the six-teenth and seventeenth centuries, ordering therevelation of a sin of impurity, and forbidding itin cases of parricide. A woman confesses, orsupposes in her confession to a Carmelite, that aCordelier attempted to seduce her; the Carmelitemust impeach the Cordelier. A fanatical assassin,believing that he shall serve God by killing hisprince, consults his confessor on this case ofconscience; the confessor is guilty of sacrilegeif he save the life of his sovereign.

This horrible absurdity is one of the unhappyconsequences of the continual opposition, whichhath subsisted for so many ages, between theecclesiastical and civil law. Mankind have in athousand instances been suspended between thecrimes of sacrilege and high-treason, and the dis-tinctions of right and wrong have been buried ina chaos, from which they are not yet emerged.

Confession of sins hath been' authorised in alltimes and in all nations. The ancients accusedthemselves in the mysteries of Orpheus, of Isis,of Ceres, of Samothrace. The Jews confessedtheir sins on the day of solemn expiation, andstill continue the same practice. Each penitentchuses his confessor, who becomes his penitentin turn, and each receives from his companion

CRIM.ES AND PUNISHMENTS. 213

thirty-nine lashes whilst he is repeating, threetimes, the formule of confession, which consistsonly in thirteen words, and which consequentlymust be general.

None of these confessions were particular, andconsequently could never serve for a pretence tothose secret consultations, under the shadow ofwhich fanatical penitents think to sin with impu-nity; a pernicious practice, by which a salutaryinstitution is corrupted. Confession, which wasintended as a curb to iniquity, hath frequently,in times of confusion and seduction, become anincentive to wickedness. Probably it was forthis reason, that so many Christian states haveabolished a holy institution, which appeared tobe 8.8 dangerous 118 useful.

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CHAPTER XVII.

OF FALSE HONEY.

THE crime of coining false money is deemedhigh-treason in the second degree, and justly.To rob all the people is to be a traitor to thestate. But it is asked whether a merchantwho imports ingots of gold from America, andprivately converts them into good money, beguilty of high-treason, and merit death 1 whichis the punishment annexed to this crime inalmost all countries. Nevertheless, he has robbednobody; on the contrary, he has done service tothe state by increasing the currency. But hehath defrauded the king of the small profit uponthe coin. He hath indeed coined good money;but he hath led others into the temptation ofcoining bad. Yet death is a severe punishment.I knew a lawyer who was of opinion, that sucha criminal should be condemned, as a usefulhand, to work in the royal mint, with irons tohis legs.


CHAPTER XVIII.

ON DOllESTW THEFT.

IN countries where a trifling domestic theft,or breach of trust, is punished with death, is notthe disproportioned punishment dangerous tosociety? Is it not even an encouragement tolarceny 1 If, in this case, a master prosecutes hisservant, and the unhappy wretch suffer death,the whole neighbourhood hold the master inabhorrence: they perceive that the law is con-trary to nature, and consequently that it is a.bad law.

What is the result 1 Masters, to avoid oppro-brium, content themselves with discharging thethief, who afterwards steals from another, andgradually becomes familiar with dishonesty. Thepunishment being the same for a small theft asfor a greater, he will naturally steal as much ashe can, and. at last will not scruple to turnassassin to prevent detection.

If, on the contrary, the punishment be pro-portioned to the crime; if those who are guilty

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of a breach of trust be condemned to labour forthe public, the master will not hesitate to bringthe offender to justice, and the crime will be lessfrequent: so true it is, that rigorous laws areoften productive of crimes.

CHAPTER XIX.

ON SUICIDE.

THE celebrated Du Verger de Hauranne, Abbede St. Cyran, one of the founders of Port Royal,in the year 1608, wrote a treatise on suicide,which is become one of the scarcest books inEurope.

" The Decalogue," says that sntbor, ~'forbidsus to commit murder; in which precept self-murder seems no Iess to be understood, than themurder of another: if, therefore, there be casesin which it if lawful to kill another, there maybe cases also wherein suicide may be allowed.But a man ought not to attempt his own life,till after having consulted his reason. Public


authority, which is the representative of God,may dispose of our lives. The reason of manmay also represent that of the Deity, it being aray of the eternal light."

St. Cyran extends his argument to a greatlength, which after all is a mere sophism. Butwhen he comes to exemplify, he is not quite soeasily answered. "A man may kill himself,"says he, "for the good of his prince, for the goodof his country, or for the good of his parents."

It does not appear, that we could with justicecondemn a Codrus, or a Curtius. What princewould dare to punish the family of a man whohad sacrificed himself for his service? Or rather,is there any prince who would dare not to rewardthem. St. Thomas, before St. Cyran, said thesame thing. But there was no need of eitherof Thomas, of Bonaventure, nor of Huranne, toinform us, that a man who dies for his countrydeserves our praise.

St. Cyran concludes, that it is lawful i to dofor one's own sake, that which is praise-worthyif done for another. The arguments of Plutarch,of Seneca, of Montaigne, and a hundred others,are well known. I do not pretend to apologisefor an action which the laws have condemned;but I do not recollect, that either the Old or

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New Testament forbid a man to relinquish hislife, when it is no longer supportable. By theRoman laws, suicide was not forbidden; on thecontrary, in a law of Mark Antony, which wasnever repealed, we find it thus written: "If yourbrother or your father, being convicted of nocrime, hath put himself to death, either to avoidpain, or being weary of life, or from despair ormadness, his will shall nevertheless be valid, orhis heirs inherit according to law."

Notwithstanding this humane law of our ancientmasters, we ordain, that a stake shall be driventhrough the corps of the offender, and his memorybecomes infamous. We do all in our power to dis-honour his family. We punish a son for havinglost a father, and a widow because she is deprivedof her husband. We even confiscate the effectsof the deceased, and rob the living of that whichis justly their due. This custom, with manyothers, is derived from our canon law, whichdenies 'Christian burial to those who are guilty ofsuicide, concluding thence, that it is not lawful toinherit on earth from one who hath himself noinheritance in heaven. The cannon law assuresus, that Judas committed a greater crime in hang-ing himself, than in betraying Jesus Christ.


CHAPTER XX.

ON A CERTAIN SPECIES OF MUTILATION.

WE find, in the Pandect, a law of Adrian, whichdenounces death to the physicians who shouldmake an eunuch, either by castration or by bruis-ing the testes. By the same law, the possessionsof those who suffered castration were confiscated.Origen ought certainly to have been punished,who submitted to this operation, from the rigidinterpretation of that passage in St. Matthew,which says, There be eunuchs, which have madethemselves eunuchs for the kingdom of heaven's sake.

Things changed in the reigns of succeedingemperors, who adopted the luxury of Asia; espe-cially in the lower empire of Constantinople,where eunuchs became patriarchs and generals ofarmies.

In these our own times, it is the custom atRome to castrate young children, to render themworthy of being musicians to his Holiness ; 80

that Castrato and Musico del Papa are synonimous,It is not long since you might have seen at Naples,

220 A COMMENTARY 'ON

written in great letters over the doors of certainbarbers, Qui si castrano mar avigliosamente i puti:here boys are castrated in the best manner.

CHAPTER XXI.

ON CONFISCATION.

IT is a maxim received at the bar, that he whoforfeits his life forfeits his e.ffects; a maxim whichprevails in those countries where custom servesinstead of law. So that, 8S we have alreadyobserved, the children of one who puts an end tohis own life, are condemned to perish with hunger,equally with those 'Ofan assassin. Thus, in everycase, a whole family is punished for the crime 'Ofan individual. Thus when the f&ther of a familyis condemned to the gallies for life, by an arbitrarysentence, whether it be for having harboured apreacher, or for ,hearing his sermon in .. (lavernor a desert, his wife and. children are reduced tobeg their bread.

That law which consists in depriving an orphan


of support, and in giving to one man the posses-sions of another, was unknown in the times of theRoman republic. It was first introduced by8y11a, in his proscriptions, whose example onewould scarce have thought worthy imitation.Nor indeed was this law adopted by Cesar, byTrajan, or by Antoninus, whose name is still pro-nounced with respect by all nations; and underJustinian, confiscation took place only in case ofhigh-treason.

It seems that, in the times of feudal anarchy,princes and lords not being very rich, sought toincrease their revenue by the condemnation oftheir subjects. Their laws being arbitrary, andthe Roman jurisprudence unknown, customs eithercruel or ridiculous prevailed. But now that thepower of princes is founded on immense and cer-tain revenues, there can be no need to swell theirtreasuries with the inconsiderable wreck of anunfortunate family.

In countries where the Roman law is estab-lished, confiscation is not admitted, except withinthe jurisdiction of the parliament of Toulouse.It was formerly the law at Calais, but was abol-ished by the English, whilst that city was in theirpossession. It is strange, that the inhabitants ofthe capital should be subject to a severer law

222 A COMMENTARY ON

than the people in the country: but laws, likethe cottages in a village, were generally estab-lished by accident, and without attention to theregularity of a general plan.

Who would believe that, in the year 1673, inthe most brilliant period ofthe kingdom of France,the advocate-general, Orner Talon, did in full par-liament express himself, on the subject of a younglady named Canillac, in the following words:

" God says, in the 13th chapter of Deuteronomy,If thou comest into a city where idolatry reigneth,thou shalt surely smite the inhabitants of thatcity with the edge of the sword, destroying itutterly and all that is therein. And thou shaltgather all the spoil thereof into the midst of thestreet, and shalt burn with fire the city, and allthe spoil thereof, for the Lord thy God; and itshall be an heap for ever; and there shall cleavenought of the cursed thing to thine hand."

"In like manner, in the crime of high-treason,the children were deprived of their inheritance,which became forfeited to the king. Nabothbeing prosecuted quia maledixerat regi, king Ahabtook possession of his effects. David beinginformed that Mephibosheth had rebelled, gaveall his possessions to Ziba who brought him thenews: tua sint omnia qutEfuerunt Mephihosheth."


The question in dispute was, who should inheritthe paternal estate of Mlle. de Cunilluc, whichhaving been confiscated, was abandoned by theking to a lord of the treasury, and afterwardsbequeathed by him to the testatrix. In thiscause concerning a girl of Auvergne it was, thatan advocate-general referred to Ahab, king of apart of Palestine, who confiscated the vineyardof Naboth, after assassinating the owner with thesword of justice: an action so abominable as tohave passed into a proverb, intended to inspiremankind with detestation for such acts of tyranny.There was certainly no analogy between the vine-.)ard of Naboth and the inheritance of Mlle. deCanillac; nor hath the murder and confiscationof the possessions of Mephibosheth, the grandsonof Saul, and son of Jonathan, the friend and pro-toc.tor of David, the least affinity with the willof this lady.

It was with such pedantry, with such foolishquotations foreign to the subject, with such igno-rance of the first principles of human nature,with such prejudices ill conceived and ill applied,that laws have been explained and executed, bymen who acquired reputation in their sphere. Ileave to the reader that, which to tell him weresuperfluous.

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CHAPTER XXII.

ON CRIMINAL PROCEDURE, AND OTHER FORMS.

IF, in France, it should ever happen that thelaws of humanity soften some of our rigorouscustoms, without facilitating the commission ofcrimes, we may hope for reformation in thoselegal proceedings, wherein our legislators seemto have been influenced by too much severity.Our criminal procedure appears in many instancesto point only at the destruction of the accused.It is the only law which is uniform throughoutthe whole kingdom; a law which ought certainlyto be no less favourable to the innocent, than ter-rible to the guilty.

In England a man may recover damages forfalse imprisonment. In France, on the contrary,an innocent person, who has had the misfortuneto be thrown into a dungeon and tortured almostto death, has no consolation, no damages to hopefor, no action against anyone; and to add to hismisfortune, he has for ever lost his reputation.Why 1 Because his joints have been dislocated;


a circumstance which ought rather to inspirecompassion and respect. The discovery of crimes,say they, requires severity: it is a war of humanjustice against iniquity. But there is generosityand compassion even in war. The brave areever compassionate; and shall the law delight inbarbarity 1

Let us compare the criminal procedure of theRomans with ours. With them, the evidencewere heard publicly in presence of the accused,who might answer or interrogate them, or employcounsel. This procedure was open and noble; itbreathed Roman magnanimity.

With us, all is conducted in secret, A singlejudge, only attended by his clerk, hears eachwitness separately. This custom, established byFrancis I. was confirmed by the commissionerswho were employed to digest the ordinance ofLewis XIV. in 1670; which confirmation wasentirely owing to a mistake. They imagined, inreading the code de Testibus, that the words testesimrare judicii secretum, signified that the witnesseswere examined in private; but secretum meanshere the chamber of the judge. Intrare secretum,if intended to signify private interrogation, wouldbe false Latin. This part of our law therefore isfounded on a solecism.

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The evidence in these cases are commonly thedregs of the people, whom the judge may, insuch private examination, make say whatever hepleases. They are examined a second time, butstill privately; and if, after this re-examination,they retract from their deposition, or vary in anymaterial circumstance, they are punished as falseevidence. So that if a simple honest fellow,recollecting that he has said too much, that hemisunderstood the judge, or the judge him, revokehis deposition from a principle of justice, he ispunished as a reprobate. The natural conse-quence of this is, that men will confirm a falsetestimony rather than expose themselves, fortheir honesty, to certain punishment.

The law seems to oblige the magistrate to bethe enemy of tho accused, rather than his judge;it being left in the power of the magistrate toconfront the evidence with the accused, or not, ashe shall think proper. Amazing! that so neces-sary a part of the procedure should be left unde-termined.

A man being suspected of a crime, knowingthat he is denied the benefit of counsel, flies hiscountry; a step to which he is encouraged byevery maxim of the law. But he may be con-demned in his absence, whether the crime be

CRIMES AND PUNISHMENTS. 22i

proved or not. Strange laws! If a man becharged with owing 0. Bum of money, before hecan be condemned to pay the demand, it illrequired that the debt be proved; but if hill lifebe in question, he may be condemned, by default,without any proof of the crime. Is mone.y thenof more importance than life? O'ye judges awllegislators! Consult the pious Antouinus, andthe good Trajun : they suffered not the ubseut tobe condemned.

Do your laws then allow the privilegeof coun-sel to an extortioner, or a fraudulent bankrupt,and refuse it to one who may possibly be a veryhonest and honourable man 1 If there ever werean instance of innocence being justified by meansof counsel, the law, which deprives the accusedof that benefit, is evidently unjust.

The parliament of Toulouse hath a very singu-lar custom relative to the validity of evidence.In other places demi-proofs are admitted, whichis a palpable absurdity, there being no such thingas demi-truth; but at Toulouse they admit ofquarters and eighths of a proof. For instance,an hearsay may be considered as a quarter, andanother hearsay, more vague than the former, asan eighth: so that eight hearsays, which in f:'1.Ctare no other than an echo of a groundless report,

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constitute a full proof. Upon this principle itwas, that poor Calas was condemned to the wheel.

CHAPTER XXIlI.

THE IDEA OF UEFORMATION.

MAGISTRATES are in themselves so respectable,that the inhabitants of the only country in whichthey are venal, sincerely pray to be deliveredfrom this custom; they wish that the civilianmay by his merit establish that justice, which inhis writings he hath so nobly defended. We maythen possibly hope to see a regular and uniformsystem of laws.

Shall the law of the provinces be always atvariance with the law in the capital? Shall a,

man be right in Britanny, and wrong in Lan-guedoc 1 Nay, there are as many laws as thereare towns; and, even in the same parliament,the maxims of one chamber are not the maximsof another.

CRIMES AND PUNISHMENTs. 229

What astonishing contrariety in the laws ofone kingdom! In Paris, a man who has been aninhabitant during one year and a day, is reputeda citizen. In Franche-Comie, a freeman who,during a year and a day, inhabits a house inmortmain, becomes a slave; his collateral heirsare excluded from inheriting his foreign acquisi-tions, and even his children are deprived of theirinheritance, if they have been a year absent fromthe house in which the father died. This provinceis called Franche, but where is their freedom 1

Were we to attempt to draw a line betweencivil authority and ecclesiastical customs, whatendless disputes would ensue? In short, to whatside soever we turn our eyes, we are presentedwith a confused scene of contradictions, uncer-tainty, hardships, and arbitrary power. In thepresent age, we seem universally aiming at per-fection; let us not therefore neglect to perfectthe laws, on which our lives and fortunes depend.

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