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.>-.«'■

•r

ESSAY

CRIMES AND PUNISHMENTS,

_ J -.*■,, _ > .

■<-<.i^> ■'.>- •>

TRJiJsrSLATED FROM THE FTALULN'

CiBSAR BONESANA, MARQUIS BECCARIA.

TO WHICH IB U)D£D,

A COMMENTARY,

BY M. D. VOLTAIRB.

TRUrSLATSD VBOX THS VBEVGRy

> J3F EDWJmD D. IJfGRJlHAM.

SECOND AMERICAN EDITION.

I II I ■ a=

In rebus quiboBCunque difficilioribus non expectandam, ut qui sisml*
et sent, et metat, sed prxparatione opus est^ et per gradus matu*
rescant. bacon.

PHILADELPHIA :

PUBUSHED BY PHIUP H. NICKLIN, NO. 175, CHESNUT ST.

MtttMMMMM**

1819.

A. Walker, FrirO^sii, Arch Se,

JUiitrict of JPcnTuyhaniat to wit .-

H:*A%t%t ^** *^ remembered, that on tlie thirtieth day of October,
2*? / V *" ^'^ forty -third year of the IiKlependrncc of the United
SjJw'J: States of America, A D. 1818. J'hi/ip Ji, JSTtckUn, of tlic
^ ^ ^ '^ said District, has depositi cl in tliis office the title of a Book,
the right whereof he claims as proprietor, in the words following
to wit :

An Yjssoy on Crimes and Punishments, translated from the Italian of
Cxstir noncsana. Marquis Beccaria. To which is added, a Com-
mentary by M. 1). \ olfaire. Transly^d from the French, by Eldward
1). In|^iiani. ^)cctllld American Fxlition. In reikis quibus amque
difficiiioribusnon exprctandum, ut qui Himul, tt si mt, et metat, scd
prjcparatione opus est, et per gradua niaturcscant. bacok.

In conformity to the act of Conppess of the United States, entitled
« An Act for the encouragement ot learnings by securing the copies
of Maps, Cliarts and Books, to ihc authors and proprietors of such
copies, during the times therein nientioned ;" and also to the act en-
title(4 an act '* Suplenicntary. tu an act entitled, ** An Act, for the en-
couimgement of learning, bv securing the copies of Maps, Charts and
Books, to the authors and proprietors of such copies, during the
times therein mentioned," and extending the benefits thereof to tlie
arts of Designing, Engraving, and Ktciiing Historical and other
Prints.

n. CJLnJTELL.
Clerk of the jDutrict of Pctmsylvanic*

PREFACE

BY THE TRANSLATOR,.

M. D. VOLTAIRE'S COMMENTARY.

WHO the author of the translation of M.
de Voltaire's commentary upon the Marquis Bec-
caria^s Essay on Crimes and Punishments was, ^
I have never been able to ascertain, but it has
always been a matter of regret to me, that it
should have been suffered, by its appearance in
print, to derogate from the reputation of the oru
ginah It appears indeed, at the first view, to be
a' studied attcrapc to burlesque the style and mis-
represent the sense of that celebrated writer*
These circumstances induce me, upon the pub-
lication of a new edition of the Essay, to offer a
new translation, with the hope that, though it be
impossible to transfer to another language the
spirit that characterises the style of the original, I
might render M. de VoUaire intelligible to the
American reader. That thi^ was not the case
heretofore, I need only appeal to those who have
had the patience to read tlie version annexed to

PJiEFACE.

the first American edition of the Essay on Crimes
and Punishments. Tlie reasons are sufficiently
obvious ; the translator appears to have been im-
perfectly acquainted with the French language,
and totally unacquainted with English or French
law terms and proceedings, a knowledge of which
is absolutely necessary in order to avoid gross
errors in translating a work, in which legal phra-
ses so frequently occur. Proper names a}so, which
the French generally alter to suit tlieir own con-
venience, appear to have caused him consider-
able embarrassment: Mark Antonin being ren-
dercd Mark Anthony, instead of Marcus Anto*
nius ; and Madame Brinvilliers, is, from the same
cause, metamorphosed into a man. For some
reason also all the notes and references by M. de
Voltaire are omitted. It may at the same time, not
be improper to remark, that the translation be-
ing a literal one, the style is uncouth to a degree of
barbarism, in consequence of the gallicisms with
which it abounds. Let it not be supposed, how-
ever^ from my strictures upon another, that I am
anxious to attract attention to my own work, or to
deprecate criticism. Whatever pretensions I may
have to notice, are founded upon the belief that
I have spared no pains to fulfil the first duty of a
translator — a faithful adherence to the sense of my
author^ at the same time that I have endeavour,
ed to do M. de Voltaire the justice to make htm

PRElACE T

^eak English. How far I have succeeded in
my object, is not for ine to judge ; nor shall I of-
fer any apology for an attempt to render more
intelligible any subject connected with the study
or improvement of law ; convinced, that to make
any exertion with that view, is to fulfil one of the
first duties which every man owes to his profes-
sion.

Philadelphia, Septeniber 19, 1819»

CONSENTS.

ij\rrRODueTioj\r lo

I. Qf the origin of punishments 15

II, 0/ the right to fiunish 17

III. Consequences of the foregoing firincifiles . . 20

IV. Of the interpretation of laws 22

V. Of the obscurity of laws 26

VI. Of the proportion bettveen crimes andpunishm

ments • * 28

VII. Of estimating the degree of crimes 33

VIII, Of the division of crimes 35

IX. Of honour 39

X. Of duelGng 42

XI. Of crimes which disturb the public tranquillity 44
XII. Of the intent of punishments * 47

XIII. Of the credibility cf witnesses 48

XIV. Of evidence and the proofs of a crimey and

of the form of judgment 52

XV. Of secret accusations 56

XVI. Of torture 59

XVII. Of pecuniary punishments 69

XVIII. Of oaths 72

XIX. Of the advantage of immediate punishment . 74

XX. Of acts qf violence 78

XXI. Of the punishment of the nobles 79

XXII. Of robbery 1 . 81

XXIII. Of infamy y considered as a punishment .... 83

XXIV. Of idleness 85

XXV. Bf banishment and confiscation 86

XXVI. Of the spirit of family in etates « 88

VLi CONTENTS.

XXVII. Of the mildnesa of tiunishmcnte 93

XXVIII. Of the fiunishmcnt of death 97

XXIX. Of imfirisonnvent 109

XXX. Of /irosecution and fireacrifition 112

XXXI. Of crimes of difficult firoqf . . « • , • • 116
XXXII. Of suicide 1S2

XXXill. Of smugsiins 127

XXXIV. Of bankrufitH IfiO

XXXV. Of aanctuariea 134

XXXVI. Of rewards for apprehending or killing

criminals 135

3tXXVII. Of attempts^ accomplices and pardon . . 138

XXXVIII. Of suggestive interrogationa 141

XXXIX. Of a particular kind qf crimca 143

XL. Of false ideas of utility 145

XLI. Qf the means of preventing crimes • • • . 148

XLII. Of the sciences l5l

» XLIII. Of magistrates 155

XLIV. Of rewards 156

XLV. Of educati07i • idm

XLVI. Of pardons 158

XLVII. Conclusion 160

A COMI^IENTARY ON TIIE BOOK OF CRIMES AND

PUNISHMENTS.
ciXAP, Pies

I. The Circumstances that occasioned this com*

mentary • IGl

II. Of Punishments • 164

in. Of the punishment qf heretics 166

IV. Of the exterpation qf heresies ...••••• 170

V. Of Blasphemy and profanation 174

VI. Of the indulgence qfthe Romans in matters

of religion • 180

CONTENTS. \z

VII. 0/ the crime of unlav^ul preaching. Siory

qf Anthony 183

VIII. The Hory of $imon Moriu 187

IX. Of witche9 , . . 190

"K,. ' Of cafiittU fiuniahment 193

XI. Of the execution of sentences ^196

XII. Of torture 198

XIII. Of certain sanguinary tribunals ....... .200

XIV. 0/ the difference between political and natu*

ral laws 203

XV. Of the crime of high treason. Of Titus Oates^

and q/ the death of 4^gustin de Thou . . 206
XVI. Of the revealing of crimes {before commis"

sion) by religious confession 212

XVII. Of counterfeiting money ..,.., 217

XVIII. Of domestic theft 218

XIX. Of suicide 219

XX. Cf a certain species qf mutilation 222

XXI.. (y Me confiscation consequent upqn aU the

crimes which have been mentioned . • • 224
XXIX. Of criminal proceedings^ and qf some other

forms of procedure .....* 229

XXIII. The tdeor cf # r^orm suggested ,..,.. 238

H., /'/'./'■•'■• ''' ' '"" '''

limiofluciiou*

In every human sodety, there is an efi(^
contiQually tending to confq: on one part the height
of power and happiness, and to reduce the other to
the extreme of weakness and misery. The intent
of good laws is to oppose this effort^ , and to diffuse
their influence univci^aUy and cijiudly. But men
generally abandoned the care of their most impor-
tant concerns to the uncertain prudence and dis-
cretion of those whose interest it is to reject thd
best and wisest institutions ; and it is not till they
have been led into a thousand mistakes in matters
the most essential to their lives and liberties, and
are weary of suffering, that they can be induced to
apply a remedy to the evils with wUich they are
oppressed. It is then they begin ta conceive and
acknowledge the most palpable truths^ which,
from their very simplicity, commonly escape vul-
gar minds, incapable of analysing objects^ accuse
tomed^o receive impressions without distinction

n lifmtoBucnm^.

tod to be determined rather by the opinions of
others than by the result of their own examination*

If we look into history we shall find that laws,
which are, or ought to be, conventions between
men in a state of freedomt have been,, for the most
part the work of the passions of a few, or the con-
sequences of a fortuitous or temporary necessity ;
not dictated by a cool examiner of human nature,
who knew how to collect in one point the actions
of X muhhude, a:id had this only end in view^ the
greatest happiness of ike greatest number. Happy
are those few nations who have not waited till the
sbw SQCcesribn of human vicissitudes shoutd,
from the cxtkcmity of evil, produce a transition to
good ; but by pnxdbnt laws have facilitated the pro<^
gress from one to the other \ And how great arc
thcoUfiations due from mankmd to that phitoso-
pber, who, from- the obscurity of his clostet, had
the courage to scatter among die multhxidc the
seeds of useful truths, so long unfruitful !

The art of printing has drffosed the knowledge
of those phibsophical: truths, by which the rela-
tions between sovereigns and their subjects, and
between nations are discovered. By this know-
ledge commerce is animated, and there ba»
sprungup a spirit of emuktion and industry, wor-

tfey df toAomi bein^sv These lire tfic produce of
tyJE^ ^igh(c»ied age ^ ^t the t#Uel<^ ofpimish^
ifiteftUs afld the hsregolaf Hy of pweeeaiflgs' iiv eti-
minat easeish, so pHhcipal apdft of tire legislation,
and so^ mdek^ hegfect^ throughout Ettfopey hasf
hardly ever been calletl in- questiioii. Errors, ac*
cumulated through jnany centuries, have never
yet been exposed by ascending to general princi-
ples; nor has the force of acknowledged truths
been ever opposed to the unbounded licentious-
ness of ill-directed power, which has continually
produced so many authorised examples of the
most unfeeling barbarity. Surely, the groans of
tlie weak, sacrificed to the cruel ignorance and in-
dolence of the powerful, the barbarous torments
lavished) and multiplied with useless severity, for
crimes either not proved, or in their nature im-
possible, the filth and horrors of a prison, increas-
ed by the most cruel tormentor of the miserable^
uncertainty, ought to have roused the attention of
those whose business is to direct the opinions of
mankind.

The immortal Montesquieu has but slightly
touched on this subject. Truth, which is eter-
nally the same, has obliged me to follow the steps
of that great man ; but the studious part of manr-
kind, for whom I write, will easily distinguish the

jjv mtRODUCTI0l!N.

superstructure from the foundation* I shall be
happy if, with him, I can obtain the secret thanks
of the obscure and peaceful disciples of reason and
philosophy, and excite that tender emotion in
which sensible minds sympathise witlv him who
.yleads the cause of humani^.

^.' /

' ESSAY

CRIMES AND PUNISHMENTS.

CHAP, I-

* Of \ht Origin of Punishments.

LAWS are the conditions under which men,
saturally independent, united themselves in sq- ,
ciety. Weary of living in a continual state of
war, and of enjoying a liberty, which became
of little value^ from the uncertainty of its du-
ration, they ^sacrificed one part of it, to enjoy
the rest in peace and security, Th^ sum of all
these portions of the liberty of each individual
constituted the sovereignty of a nation and was
deposited in the hands of the sovereign, as the
lawful administrator. But it was not sufficient
only to establish thb deposit ; it was also neces-
sary to defend it from the usurpation of each in-
dividual, who will always endeavour to take
away from the mass, not only his own portion,
l)ut tp encroach on that of others* Some motive^^

16 AN ESSAY Q»

therefore, that strike the senses were necessary
to prevent the despotbm of each individual from
plunging society into its former chaos. Such
motives are the punishments established against
the infractors of the laws. I say that motives
of this kind are necessary ; because experience
shows, that the multitude adopt no established
principle of conduct ; and because society is pre-
vented from approaching to that dbsolution, (to
which^ as well as all other parts of the physical
and moral world, it naturally tends,) only by mor
lives that are the immediate objects of sense, and
whic{i being continusdly presented to the mind,
are sufficient to counterbalanoe the effects of the
passicHis of the individual which oppose the ge.
neral good. Net&er the power of eloquence nor
the sublimest truths are sufficient to restrain, for
any length of time, those passions which are ex«
cited by the lively impre$sions of present objects.

CRIMES AND PUNISHMENTS. 17

CHAP. II.

Of the Right to punish.

EVERY punishment which does not arise
from absolute necessity, says the great Montes-
quieu, is tyrannical. A propdfeition which may
be made more general thus : every act of autho-
rity of one man over another, for which there is
not an absolute necessity, is tyrannical. It is
upon this then that the sovereign's right to pun-
ish crimes is founded ; that is, upon the necessi-
ty of defending the public liberty, entrusted to
his care, from the usurpation of individuals ; and
punishments are just in proportion, as the liberty,
preserved by the sovereign, is sacred and valu-
able.

Let us consult the human heart, and there we
shall find the foundation of the sovereign's right
to punish i for no advantage in moral policy can
be lasthig which is not founded on the indelible
sentiments of the heart of man. Whatever law
deviates from this principle will always meet with
a resistance which will destroy it in the end ; for
the smallest force continually applied will oyer-

18 AN ESSAY ON

come the most violent motion communicated to
bodies.

No man ever gave up his liberty merely for the
good of the public. Such a chimera exists only
in romances. Every individual wishes, if possible,
to be exempt from the compacts that bind the
rest of mankind.

•
The multiplication of mankind, though slow,
being too great, for the means which the earth,
in its natural state, offered (to satisfy necessities
which every day became more numerous, obliged
men to separate again, and form new societies.
These naturally opposed the first, and a state of
war was transferred from individuals to nations.

Thus it was necessity that forced men to give
up a part of their liberty. It is certain, then, that
every individual would choose to put into the pub-
lic stock the smallest portion possible, as much
only as was sufficient to engage others to defend
it. The aggregate of these, the smallest portions
possible, forms the right of punishing; all that
extends beyond this, is abuse, not justice.

Observe that by Justice I understand nothing
more than that bond which is necessary to keep

CHIMES AND PUNISHMENTS. 19

the interest of individuals united, without which
men would return to their original state of bar-
barity. All punishments which exceed the ne-
cessity of preserving this bond are in their nature
unjust. We should be cautious how we associate
with the word justice an idea of any thing real,
such as a physical power, or a being that actually
exists. I do not, by any means, speak of the
justice of God, which is of another kind, and re-
fers immediately to rewards and punishments ia
a life to come.

20 AN ESSAY ON

CHAP. III.

Consequences of the foregoing Frineiples.

THE laws only can determine the punishment
of crimes ; and the authority of making penal
l^Ws can only reside with the legislator, who re-
presents the whole society united by the social
compact. No magistrate then, (as he is one of
the society,) can, with justice, inflict on any other
member of the same society punishment that is
not orddined by the laws. But as a punbhment,
increased beyond the degree fixed by the law, is
the just punishment with the addition of another,
it fallows that no magistrate, even under a pre*
tence of zeal, or the public good, should increase
• the punishment already determined by the laws.

If every individual be bound to society, society
is equally bound to him, by a contract which,
from its nature equally binds both parties. This
obligation, which descends from the throne to the
cottage, and equally binds the highest and lowest
of mankind, signifies nothing more than that it is
the interest of all, that conventions, which are
useful to the greatest number, should be punctu-
ally ob?5e'Ved. The violation of this compact by
any individual is an introduction to anarchy.

CRIMES ,AND PUNISHMENTS. 21

The sovereign, who represents the society it-
self, can only make general laws to, bind the
members ; but it belongs not to him to judge
whether any individual has violated the social
compact, or incurred the punishment in conse-
quence. For in this case there are two parties,
one represented by the sovereign^ who insists up-
'OD the violation of the contract^ and the other is
the person accused, who denies it. It is necessa-
ry then that there should be a third person to de-
cide this contest ; that is to say, a judge, or ma-
gistrate; from whose determination there should
be no appeal ; and this determination should con-

•

sist of a simple affirmation or negation of fact.

If it can only be proved, .that the severity of
punishments, though not immediately contrary
to the public good, or to the end for which they
were intended, viz. to prevent crimes, be use-
less, then such severity would be contrary to
those beneficent virtues, which are the conse-
quence of enlightened reason, which instructs the
sovereign to wish rather to govern men in a
state of freedom and happiness than of slavery.
It would also be contrary to justice and the social
compact.

^ AN ESSAY es

CHAP. IV.

Of the Interpretation of Laws.

JUDGES, in criminal cases, have no ri^ht to
interpret the penal laws, because they are not le-
gislators. They have not received the laws from
our ancestors as a domestic tradition, or as the
will of a testator, which his heirs and executors
are to obey ; but they receive them from a socie-
ty actually existing, or from the sovereign, its re-
presentative. Even the authority of the laws is
not founded on any pretended obligation, or an-
cient convention ; which must be null, as it can-
not bind those who did not exist at the time of
its institution ; and unjust, as it would reduce
men in the ages following, to a herd of brutes,
without any power of judging or acting. The
laws receive their force and authprity from an oath
of fidelity, either tacit or expressed, which living
subjects have sworn to their sovereign, in order to
restrain the intestine fermentation of the private
interest of individuals. From hence springs their
true and natural authority. Who then is their
lawful interpreter? The sovereign, that is, the
representative of society, and not the judge, whose
office is only to examine if a man have or have
' not committed an action contrary to the Jaws.

CHIMES AND PUNISHMENTS. 2Sl

In every criminal cause the judge should reason
syllogistically. The major should be the general
law ; the minor y the conformity of the action, or
its opposition to the laws ; the conclusion ^ liberty,
or punishment. If the judge be obliged by the
imperfection of the laws, or chooses to make any
other or more syllogisms than this, it will be an
introduction to uncertainty.

There is nothing more dangerous than the
common axiom, the spirit of the laws is to be eon*
sidered. To adopt it is to give way to the tor-
rent of opinions. This may seem a paradox to
vulgar minds, which are more strongly affected
by the smallest disorder before their eyes, than by
the most pernicious though remote consequences
produced by one false principle adopted by a
nation.

Our knowledge is in proportion to the number
of our ideas. The more complex these are, the
greater .is the variety of positions in which they
may be considered. Every man hath his own
particular point of view, and, at different times,
sees the same objects in very different lights.
The spirit of the laws will then be the result of
the good or bad logic of the judge ; and this will
depend on his good or bad digestion, on the vio-
lence of his passions, on the rank or condition

34 AN ESSAY OK

of the accused, or on his connections with the
judge, and on all those little circumstances which
change the appearance of objects in the fluctua-
ting mind of man. Hence we see the fate of a
delinquent changed many times in passing through
the different courts of judicature, and his life and
Ubcrty victims to the false ideas or ill humour of
the judge, who mistakes the vague result of his
own confused reasoning for the just interpretation
of the laws. We see the same crimes punished
in a diflFerent manner at different times in the
same tribunals, the consequence of not having
consulted the constant and invariable voice of the
laws, but the erring instability of arbitrary inter-
pretation.

The disorders that may arise from a rigorous
observance of the letter of pen^l laws are not to
be compared with those produced by the inter-
pretation of them. The first are temporary in.
conveniences which will oblige the legislature to
correct the letter of the law, the want of precise-
ness and uncertainty of which has occasioned
these disorders ; and this will put a stop to the
fatal liberty of explaining, the source of arbitrary
and venal declamations. When the code of laws
is once fixed, it should be observed m the literal
sense, and nothing more is left to the judge than
to determine whether an action be or be not con-

CRIMES AND PUNISHMENTS ^

formable to the written law. When the rule of
right, which ought to direct the actions of the j.
philosopher, as well as the ignorant, is a matter of
controversy, not of fact, the* people are slaves to
the magistrates. The despotism of this multitude
of tyrants is more insupportable the less the dis-
tance is between the oppressor and the oppressed,
more fatal than that of one, for the tyranny of
many is not to be shaken off but by having re-
course to that of one alone. It is more cruel, as
• it meets with more opposition, and the cruelty of
a tyrant is not in proportion to his strength, but
to the obstacles that oppose him.

These are the means by which security of per-
son and property is best obtained, which is just,
as it is the purpose of uniting in society ; and it is
useful as each person may calculate exactly the
inconveniences attending every crime. By these
means, subjects will acquire a spirit of independ-
ence and liberty, howe^r it may appear to thpse
who dare to call the weakness of submitting
Windly to their capricious and interested opinions
by the sacred name of virtue.

These principles will displease those, who have
made it a rule with themselves to transmit to their
inferiors the tyranny they suffer from their supe-

M AX ESSAY ON

riors. I should have every thing to fear if tjrrants
were to read my book ; but tyrants never read.

CHAP. V

Of the Obscurity of Laws.

• IF the power of interpreting laws be an evil,
obscurity in them must be another^ as the former
is the consequence of the latter. This evil will be
still greater if the laws be written in a language
unknown to the people ; who, being ignorant of
the consequences of their own actions, become
necessarily dependent on a few, wjio are interpre-
ters of the laws, which, instead of being public
and general, are thus rendered private and parti-
cular. What must we think of mankind when we
reflect, that such is the established custom of the
greatest part of our polished and enlightened Eu-
rope ? Crimes will be lefts frequent in proportion
as the code of laws is more universally read and
understood; for there is no doubt but that the
eloquence of the passions is greatly assisted by the
ignorance and uncertainty of punishments.

Hence it follows, that, without written laws,
no society will ever acquire a fixed form of go-
vernment, in which the power is vested in the

CRIMES AND PUNISHMENTS. :f . gjc

whole, and not in any part of the society; and in f
which the laws are not to be altered but by the
will of the whole,* nor con;xipted by the force of >
private interest. Experience and reason show us
that the probability of human traditions dimi-
nishes in proportion as they are distant from their
sources. How then can laws resist the inevitable
force of time, if therebe not a lasting monument
of the social compact.

Hence we see the use of printing, which alone
makes the public, and not a few individuals, the
guardians and defenders of the laws. It is this
art which, by diffusing literature, has gradually
dissipated the gloomy spirit of cabal and intrigue.
To this art it is owing that the atrocious crimes
of our ancestors, who were alternately slaves
and tyrants, are become less frequent. Those
who are acquainted with the history of the two
or three last centuries mav observe, how from the
lap of luxury and effeminacy have sprung the
most tender virtues, humanity, benevolence, and
toleration of human errors. They may contem-
plate the effects of what \^as so improperly called
ancient simplicity and good faith ; humanity grogin-
ing under implacable superstition, the avarice and
ambition of a few staining with human blood the
thrones aiid palaces of kings^ secret treasons and

.■A

38 JlS essay on

public massacres, every noble a tyrant over the
people, and the ministers of the gospel of Christ
bathing their hands in blood in the name of the
God of all mercy. We may talk ias we please of
the corruption and degeneracy of the present age,
but happily we see no such horrid examples of
cruelty and oppression.

CHAP. VI.

Of the Proportion helween Crimes and Punishments.

IT is not only the common interest of mankind
that crimes should not be committed, but that
crimes of every kind should be less frequent, in
proportion to the evil they produce to society.
Therefore the means made use of by the legisla-
ture to prevent crimes should be more powerful,
in proportion as they are destructive of the public
safety and happiness, and as the inducements to

■

commit them are stronger. Therefore there ought
to be a fixed proportion between crimes and pu-
nishments.

It is impossible to prevent entirely all the dis-
orders which the passions of mankind cause in
society. These disorders increase in proportion

•*

emMGS AND PTTNISHMENTS. 29

to the number of people and the opposition of
private interests* If we consult history, we shall
find them increasing, in every state, with the ex-
tent of dominion. In political arithmetic, it is
necessary to substitute a calculation of probabili-
ties to mathematical exactness. That force which
continually impels us to our own private interest,
like gravity, acts incessantly, unless it meets with
an obstacle to oppose it. The effects of this force
are the confused series of human actions. Pun-
ishments, which 1 would call political obstacles,
prevent the fatal effects of private interest, with,
out destroying the impelling cause, which is that
sensibility inseparable from man. The legislator
acts, in this case, like a skilful architect, who en-
deavours to counteract the force of gravity by
combining the circumstances which may contri-
bute to the strength of his edifice.

The necessity of uniting in society being grant*
ed, together with the conventions which the op-
posite interests of individuals must necessarily re-
quire, a scale of crimes may be formed, of which
the first degree should consist of those which im-
mediately tend to the dissolution of society, and
the last of the smallest possible injustice done to
a private member of that society. Between these
extremes will be comprehended all actions con-

30 AN nsAT oy

tmry to the public good v^hkh are called crimiiialy
and which descend by insensible degrees, de«
creasing from the highest to the lowest. If ma-
thematical calculation could be applied to the ob-
sciue and infinite combinations of human actions^
there might be a corresponding scale of punish-
ments, descending from the greatest to the least ;
but it will be sufficient that the wise legislator
mark the principal divisions, without disturbing
the order, left to crimes of the ^r^;^ degree be as-
signed punishments of the last. If there were an
exact and universal scale of crimes and punish-
ments, we should there have a common measure
of the degree of liberty and slavery^ humanity and
cruelty of different nations* *

Any action which is not comprehended in the
above mentioned scale will not be called a crime,
or punished as such, except by those who have
an interest in the denomination. The uncertainty^
of the extreme points of this scale hath produced
a system of morality which contradicts the laws>
a multitude of laws that contradict each other,
and many which expose the best men to the se-
verest punishments^ rendering the ideas of vice and
virtue vague and fluctuating^ and even their exist-
ence doubtful. Hence that fatal lethargy of po-
litical bodies, which terminates in their destruction.

CRIMES AND 1>UNISHMENTS. . 3i

Whoever reads, ^vith a philosophic eye, the
history of nations, and their laws^ will generally
find, that the ideas of virtue and vice, of a good
or bad citizen, change with the revolution of
agesy not in proportion to the alteration of cir-
cums^tances, and consequendy confbn^able to the
common good, but in proportion to the passions
and errors by which the diflFerent lawgivers were
successively influenced. He will frequently ob-
serve that the passions and vices of one age are
the foundation of the morality of the following ;
that violent passion^ the offspring of fanaticism
and enthusaism, being weakened by time, which
reduces all the phenomena of thc; natural and
moral world to an equality, become, by degrees,
the prudence of the age, and an useful instrument
in the hands of the powerful or artful politician.
Hence the uncertainty of our notions of honour
and virtue ; an uncertainty which will ever re-
main, because they change with the revolutions of
time, and names survive the things they originally
Mgnified; tbey. change with the boundaries of
$taftes, ^lvl)«cli ^»t often the same both in phy^al
and moral geography.

Pleasure and pain are the only springs of ac-
tions in beings endowed with sensibility. Everv
amongst the motives which incite men to acts of
reugion, the invisible legislator has ordained re-

^ AN ESSAY ON

wards and punishments. From a partial distribu-
tion of these will arise that contradiction, so little
observed, because so common, I mean that of
punibhing by the laws the crimes which the laws
have occasioned. If an equal punishment be
ordained for two crimes that injure society in
different degrees, there is nothing to deter men
from committing the greater as often as it is at-
tended with greater advantage.

V -■

CRDIES AND PUNISBMEMTEk ^.

CHAP. VII.

Of estimating the Degree of Crimes.

THE foregoing reflections authorise me to as-
sert that crimes are only to be measured by the
injury done to society.

They err, therefore, who imagine that a crime
is greater or less according to the intention of the
person by whom it is committed; for this will
depend on the actual impression of objects on the
senses, and on thi^ previous disposition of the
mind ; both which will vary in different persons,
and even in the same person at different times,
according to the succession of ideas, passions, and
circumstances. Upon that system it would be
necessary to form, not only a particular code for
every individual, but a new penal law for every
crime. Men, often with the best intention, do
the greatest injury to society, and, with the worst,
do it the most essential services.

Others have estimated crimes rather by the dig-
nity of the person offended than by their conse-
quences to society. If this were the true stand-
ard| the smallest irreverence to the Divine Being

34 . AN ESSAY ON

ought to be punished with infinitely more severity
than the assassinution of a monarch.

In short, others have imagined, that the great-
ness of the sin should aggravate the crime. But
the fallacy of this opinion will appear on the
slightest consideration of the relations between
man and man, and between God and man. The
relations between man and man are relations of
equality. Necessity ajone hath produced, from
the opposition of private passions and interests,
the idea of public utility, which is the foundation
of human justice. The other are relations of
dependence, between an imperfect creature and
his Creator, the most perfect of beings, who has
reserved to himself the sole right of being both
lawgiver and judge; for he alone can, without
injustice, be, at the same time, both one and the
other. If he hath decreed eternal punishments
for those who disobey his will, shall an insect
dare to put himself in the place of divine justice,
or pretend to punish for the Almighty, who is
himself all sufficient, who cannot receive impres-
sions of pleasure or pain, and who alone, of all
other behigs, acts without being acted upon? The
degree of sin depends on the malignity of the
heart, which is impenetrable to finite beings.
How then can the degree of sin serve as a stand-

CRIMES AND PUXISHMENTS. 55

ard to determine the degree of crimes ? If that
were admitted, men may punish when God par-
dons, and pardon when God condemns ; and thus
act in opposition to the Supreme- Being.

CHAP. VIII.

Of the Division of Crimes.

WE have proved, then, that crimes are to be
estimated by the injury done to society. This is
one of those palpable truths which though evi-
dent to the meanest capacity, yet. by a combina-
tion of circumstances, are only known to a few
thinking men in every nation, and in every age.
But opinions, worthy only of the despotism of
Asia, and passions, armed with power and autho-
rity, have, generally by insensible, and sometimes
by violent impressions on the timid credulity of
men, effaced those simple ideas which perhaps
constituted the first philosophy of an infant society.
Happily the philosophy of the present enlightened
age seems again to conduct us to the same prin-
ciples, and with that degree of certainty which is
obtained by a rational examination and repeated
experience.

Ji6 AN fiSSAY ON

A scrupulous adherence to order would require^
that we should now examine and distinguibli the
diffA*ent species of crimes and the modes of pun-
ishment; but they are so variable in their nature^
from the different circumstances of ages and coun-
tries, that the detail would be tiresome and endless.
It will be sufficient for my purpose to point out
the most general principles, and the most common
and dangerous errors, in order to undeceive as well
those who, from a mistaken zeal for liberty,, would
introduce anarchy and confusion, as those who
pretend to reduce society in general to the regu-
larity of a covenant.

Some crimes are immediately destructive of so-
ciety, or its representative ; others attack the pri-
vate security of the life, property, or honour of
individuals ; and a third class consists of such ac-
tions as are contrary to the laws which relate im
the general good of the community,

Th# first, which are of the highest degree, as
they are most destructive to society, are called
crimes of leze-majesty. * Tyranny and ignorance,
which have confounded the clearest terms and
ideas, have given this appellation to crimes of a
different nature, and consequently have establish-

* High Treas^.

CRIMES AND PUNISHMENTS. 87

tsA the same punishment for ^ach ; and, on this
cccasioiH as on a thousand others, men have been
sacrificed victims to a word. Every crime, even
of the most private nature, injures society ; but
every crime does not threaten its immediate de-
struction. Moral as well as physical actions have
their sphere of activity differently circumscribed,
like all the moveinents of nature, by time and
space ; it is therefore a sophistical interpretation,
the common philosophy of slaves, that would con-
found the limits of things established by eternal
mith.

To these succeed crimes whicK are destructive
of the security of individuals. This security being
the principal end of all society, and to which every
citizen hath an undoubted right, it becomes indis*
pensably necessary, that 16 these crimes the great-
est of punishments should be assigned.

The opinion, that every member of society has
a right to do any thing that is not contrary to the
laws, without fearing any other inconveniences
than those which are the natural consequences of
the action itself, is a political dogma, which should
be defended by the laws, inculcated by the magis.
trates, and believed by the people ; a sacred dog*
ma;^ without which there can be no lawful society,

Gt AN ESSAY ON

a just recompense for our sacrifice of that univer-
sal liberty of action common to all sensible beings>
and only limited by our natural powers. By this
principle our minds become free, active, and vi-
gorous ; by this alone we are inspired with that
virtue which knows no fear, so different from that
pliant prudence, worthy of those only who can
bear a precarious existence.

Attempts, therefore, against. the life ancj liberty
of a citizen are crimes of the highest nature. Un*
der this head we comprehend not only assassina-
tions and robberies committed by the populace,
but by grandees and magristrates, whose example
acts with more force, and at a greater distance
destroying the ideas of justice and duty among
the subjects, and subsituting that of the right of the
strongest, equally dangerous to those who exercise
ft: and to those who suffer.

CRIMES AND PUNISHMENTS. 39

CHAP. IX.

Of Honour^

THERE is a remarkable difference between the
civil laws, those jealous guardians of life and pro-
perty, and the laws of what is called honour^ which
particularly respects the opinion of others. Ho-
nour is a term which has been the foundation of
piany long and brilliant reasonings, without annex-
ing to it any precise or fixed idea. How mise-
rable is the condition of thfe human mind, to which
the most distant and least essential matters, the
revolutions of the heavenly bodies, are more dis-
tinctly knov/n than the most interesting truths of
morality, which are always confused and fluctu-
ating, as they happen to be driven by the gales of
passion, 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 ap-
pear confused, so the too great vicinity of the
ideas of morality is the reason why the simple ideas
of which they are composed are easily confound-
ed, but which must be separated before we can
investigate the phenomina of human sensibility;
and the intelligent observer of human nature will
cease to be surprised, that so many ties, and such

40 AN ESSAY 01^

an apparatus of morality, are necessary to the se-
curity and happiness of mankind.

Honour, then, is one of those complex idea^
which ae nn aggregate not only of simple ones^
but of others so complicated, that, in their various
modes of affecting the human mind, they some-
times admit and sometimes exclude part of the ele-
ments of which they are composed^ retaining only
some few of the most common, as many algebraic
quantities admit one common divisor. To find
this common divisor of the different ideas attached
to the word honour, it will be necessary to go back
to the original formation of society.

The first laws and the first magistrates owed
their existence to the necessity of preventing the
disorders which the natural despotism of indivi*
duals would unavoidably produce. This was the
object of the est^iblishment of society, and was,
either in reality or in appearance, the principal
design of all codes of laws, even the most perni-
cious. But the more intimate connexions of men,
and the progress of their knowledge, gave rise to
an infinite number of necessities and mutual acts
of friendship between the members of society.
These necessities were not foreseen by the laws,
and could not be satisfied by the actual power of

CRTMES AND PUNISHMENTS. 4X

each individual. At this epocha began to be esta-
blished the despbtism of opinion, as being the only-
means of obtaining those benefits which the law
could not procure, and of removing those evils
against which the laws were no security. It is
opinion, that tormentor of the wise and the igno-
rant, that has exalted the appearance of virtue
above virtue itself. Hence the esteem of men
becomes not only useful but necessary to every
one, to prevent his sinking below the common le-
vel The ambitious man grasps at it, as being
necessary to his designs ; the vain man sues for
it, as a testimony of his merit ; the honest man
demands it, as his due ; and most men consider
it as necessary to their existence.

Honour, being produced after the formation of
society, could not be a part of the common de-
posite, and therefore, whilst we act under its in-
fluence, we return, for that instant, to a state of
nature, and withdraw ourselves from the laws,
which, in this case, are insufficient for our pro-
tection.

Hence it follows, that, in extreme political li-
berty, and in absolute despotism, all ideas of ho-
nour disappear, or are confounded with others.
In the first case, reputation becomes useless from.

43 AN ESSAY ON

the despotism of the laws ; and in the second, the
despotism of one man, annulling all civil existence-
reduces the rest to a precarious and temporary-
personality. Honour, then, is one of the fun-
damental principles of those monarchies which are
a limited despotism ; and in these, like revolutions
in despotic states^ it is a momentary return to
state of nature and original equality.

CHAP. X.

Of nudllng.

FROM the necessity of the esteem of others
have arisen single combats, and they have been
established by the anarchy of the laws. They are
thought to have been unknown to the ancients,
perhaps because they did not assemble in their tem-
ples, in their theatres, or with their friends, sus-
piciously armed with swords ; and, perhaps, be-
cause single combats were a common spectacle,
exhibited to the people by gladiators, who were
slaves^ and whom freemen disdained to imitate.

In vain have the laws endeavoured to abolish
this ciistom by punishing the offenders with death*
A man of honour, deprived of the esteem ot others,

CRIMES AND PUNISHMENTS. 4^

foresees that he must be reduced either to a soli-
tary existence, insupportable to a. social creature,
or become the object of perpetual insult ; consi-
derations sufficient to overcome the fear of death.

What is the reason that duels are not so fre-
quent among the common people as amongst the
great ? not only because they do not wear swords,
but because to men of that class reputation is of
less importance than it is to those of a higher
rank, who commonly regard each other with dis-
trust and jealousy.

It may not be without its use to repeat here
wliat has been mentioned by other writers, viz.
that the best method of preventing this crime is to
punish the aggressor, that is, the person who gave
occasion to the duel, and to acquit him who, u ith-
out any fault on his side, is obliged to defend that
which is not sufficiently secured to him by the
laws.

U AN ESSAY 0!^

CHAP. XL

Of crimes which disturb the Public Tranquillity.

ANOTHER class of crimes arc those which
disturb the public tranquillity and the quiet of the
citizens ; such as tumults and riots in the public •
streets, which are intended for commerce and the
passage of the inhabitants ; the discourses of fa-
natics, which rouse the passions of the curious
multitude, and gain strength from the number of
their hearers, who, though deaf to calm and solid
reasoning, are always affected by obscure and
mysterious enthusiasm.

The illumination of the streets during the night
at the public expense, guards stationed in different
quarters of the city, the plain and moral discourses
of religion reserved for the silence and tranquillity
of churches, and protected by authority, and ha-
rangued in support of the interest of the public,
delivered only at the general meetings of the na-
tion, in parliament, or where the sovereign resides^
are all means to prevent the dangerous effects of
the misguided passions of the people^ These

CRIMES AND 'TONISHMENTS: i$

^ould be the principal objects of the vigilance of
a magistrate, and which the French -call j&o/ic^;
but if this magistrate should act in an arbitrary
manner, and not in conformity to the code of laws,
which ought to be in the hands of every member
of the community, he opens a door to tyranny,
which always surrounds (he confines of political
liberty^

I do not know of any exception to this general
axiom^ that Every membtr of society shotddkww
'when he is criminal and when innocent. If censors,
and, in general, arbitrary magistrates, be necessary
in any government, it proceeds from some fault in
the constitution. The uncertainty of crimes hath
sacrificed more victims to secret tyranny than have
^ver suffered by public and solemn cruelty.

What are, in general, the proper punishments
for crimes ? Is the punishment of death really use-
fuU or necessary for the safety or good order of
society? Are tortures and tc^rments consistent with
justice^ or do they answer the end proposed by the
laws ? Which is the best method of preventing
crimes ? Are the same punishments equally useful
at all times ? What influence have they on man-
ners ? These problems should be solved with that
geometrical precision, which the mist of sophistry,

\
I

«^

AN ESSAY ON

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

If I .have no other merit than that of having first
presented to my country, with a greater degree of
evidence, what other nations have written and are
beginning to practice, I shall account myself for-
tunate ; but if, by supporting the rights of man-
kind and of invincible truth, I shall contribute to
save from the agonies of death one unfortunate
victim of tyranny, or of ignorance, equally fatal,
his blessing and tears of transport will be a suffi-
cient consolation to me for the contempt of all
mankind*

cRiriEs Am) vxsmmmitrs. ^

CHAP. XII.

Of the Intent of Punishments.

FROM the foregoing considerations it is evi-
dent that the intent of punishments is not to tor-
ment a sensible being, nor to undo a crime al-
ready committed. Is it possible that torments and
useless cruelty, the instrument of furious fanati-
cism or the impotency of tyrants, can be autliorised
by a political b(|dy, which, so far from being in-
fluj|fced by passion, should be the cool moderator
of the passions of individuals ? Can the groans of
a tortured wretch recal the time past, or reverse
^ the crime he has committed ?

The end of punishment, therefore, is nb other
than to prevent the criminal from doing further
injury to society, and to prevent others from com-
mitting the like offence. Such punishments, there-
fore, and such a mode of inflicting them, ought
to be chosen, as will make the strongest and most
lasting impressions on the minds of others, with
the least torment to the body of the criminal.

a AN ESSAY Olf

CHAP. XIIL

Of the Credibility of Witnme$.

TO determine exactly the credibility of a Mrit-
ness, and the force of evidence^ is an important
point in every good legislation. Every man of
common sense, that is, every one whose ideas
have some connection with each other, and whose
sensations arc conformable to those of other men^
may be a witness ; but the cjedibility of his evi«
dence will be in proportion as he is interest^ in
declaring or concealing the truth. Kence it ap-
pears how frivolous is the reasoning of those who
reject the testimony of women, on account of their
weakness ; how peurile it is not to admit the evi-
dence of those who are under sentence of deaths
because they are dead in law ; and how irrational
to exclude persons branded with i.ifamy ; for in
all these cases they ought t^ be credited, when
they have no interest in giving false testimony.

The credibility of a witness, then, should only
diminish in proportion to the hatred, friendship^
or connections^ subsisting between him and the
delinquent. One witness is not sufficient foi^ .

GRIMES AND PUNISHMENTS 49

whilst the accused denies what the other affirms,
truth remains suspended, and the right that every
one has to be believed innocent turns the l?al^i)ce
in his favour.

The credibility of a witness is the less as the
atrociousness of the crime is greater, fron^ the
improbability of its having been committed ; as
in cases of witchcraft, and acts of wanton cruelty,
The writers on penal laws have adopted a contra?
ry principle, viz. that the credibility of a witness
is greater as the crime is more atrocious. Behold
their inhuman maxim, dictated by the most cruel
imbecility. In atrocissimis , leviores conjecture
sufficiunt. is? licit judici jura transgredi. I^et us
translate this sentence, that mankind may see one
of the many unreasonable principles to which they
arc ignorantly subject. In the most atrocious
crimes^ the slightest conjectures are sufficient^ qncf
the judge is allowed to exceed the limits of the laxv^
The absurd practices of legislators ^re often the
effect of timidity, which is a principal source of
the contradictions of mankind. The legislators,
(or rather lawyers, whose opinions when alive
were interested and venal, but ^hioti after their
death become of decisive authority, ^nd are the
sovereign arbiters of the lives and fortunes of
men), terrified by the conden^nation pf some ^n-

50 AN ESSAY ON

nocent person, have burdened the law with pomp-
ous and useless formalities, the scrupulous ob-
servance of which will place anarchical impunity
on the throne of justice ; at other times, perplex-
* cd by atrocious crimes of difficult proof, they
imagined themselves under a necessity of super-
seding the very fprmalities established by them-
selves ; and thus, at one time with despotic impa-
tience, and at another with feminine timidity, they
transform their solenm judgments into a game qf
|iazard.

But, to return : in the case of witchcraft, at is
much more probable that a number of men should
be deceived than that any person should exercise
a power which God hath refused to every created
being. In like manner, in cases of wanton crueK
ty, the presumption is always against the accuser ;
for no man is cruel without some interest, with-
out some motive of fear or hate. There are no
spontaneous or superfluous sentiments in the heart
of man ; they are all the result of impressions on
the senses.

The credibility of a witness may also be di-
minished by his being a member of a private
society, whose customs and principles of conduct
are either not known or are different from those

Crimes and punishments. 51

bf the public. Such a man has not only his own
passions^ but those of the society of which he is ^
member;

Finally, the credibility of a Witness is null wheii
the question relates to the words of a criminal ;
for the tone of voice^ the gesture, all that precedes,
accompanies, and follows the different icleas which
men annex to the same words, may so «iter and
modify a man's discourse, that it is almost impos-
sible to repecLt them precisely in the manner in
which they were spoken^ Besides, violent and
uncommon actions, such as real crimes, leaVe a
trace in the multitude of circumstances that attend
them, and in their effects ; but Word^ remain only
in the memory of the hearers, Who are common^
negligent or pifejudiced. It is infinitely easiet^
then, to found an accusation on the words than
on the actions of a man ; for in these tlie niimbei* .
of circumstances urged against the accused afford
him variety of means of justification^

^2 An essay ok

CHAP. XIV.

Of Evidence and the Proofs of a Cnme^ and of the

Form of Judgment.

The following general theorem is of great use
in determining the certainty of a fact. When the
proofs of a crime are dependent on each other,
that iS) when the evidence of each witness, taken
(separately, proves nothing, or when all the proofs
fare dependent upon one, the number of proofs
neither increase nor diminish the probability of the
fact J for the force of the whole is no greater than
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, the probability of
the fact increases in proportion to the number of
proofs ; *for the falshood of the one does notdimi*
nibh the veracity of another.

It may seem extraordinary that I speak of pro-
bability with regard to crimes, which to deserve
a punishment^ must be certain. But this paradox
Ivill vanish when it is considered, that, strictly
Speakings moral certainty is only probability, but
Ivhich is called a certainty, because every man in
his senses assents to it from an habit produced by
the necessity of acting, and which is anterior to all

fcRIMES AND PUNISHMENTS. A3

speculation. That certainty which is necessary to
decide that the accused is, guilty is the very same
which determines every man in the most impor-
tant transactions of his life.

The proofe of a crime may be divided into two
classes, perfect and imperfect. 1 call those per-
fect which exclude the possibility of innocence ;
imperfect, those which do not exclude this possi-
bility. Of the firsts one only is sufficient for con-
demnation ; of the second, as many are required
as form a perfect proof; that is to say, that though
each of these, separately taken, does not exclude
the possibility of innocence, it is nevertheless ex^
eluded by their union. It should be also observ-
ed, that the imperfect proofs, of which the accu-
sed, if innocent^ might clear himself, and does
not become perfect.

But It is much easier to feel this moral certainty
of proofs than to define it exactly. For this rea*
son, 1 think it an excellent law which establishes
assistants to the principal judge, and those chosen
by lot; for that ignorance which judges by its
feelings is less subject to error than the knowledge
or the laws which judges by opinion. Where the
laws are clear and precise, the office of the judge
is merely to ascertain the fact. If, in examining

54 AX ESSAV ON

the proofs of a crime, acuteness atid de:stterity be
required^' if clearness and precision be necessary
in summoning up the result, to judge of the re-
sult itself nothing is wanting but plain and ordina-
ry good sense, a less fallacious guide than the
knowledge) of a judge, accustomed to find guilty,
and to reduce all things to an artificial system hot*
rowed from his studies. Happy the nation where
the knowledge of the law is not a science i

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 senti-
ments which a difference of rank and fortune in^
spires should be silent; that superiority with which
the fortunate look upon the unfortunate^ and that
envy with which the inferior regard their supe-
riors, should have no influence^ But when the
crime is an offence against a fellow-subject, one
half of the judges should be peers to the accused,
and the other peers to the person offended : so that
all private interest, which, in spite of ourselves,
modifies the appearance of objects, even in the
eyes of the most equitable, is counteracted, and
nothing remains to turn aside the direction of truth
and the laws. It is also just that the accused
should have the liberty of excluding a certain num-^
ber of his judges ; where this liberty is enjoyed

CRIMES AND PUNISHMENTSt- 5^

ffiir a long time^ without any instance to the con-
trary, the criminal seems to condemn himself.

All trials should be public, that opinion, which
is the best, or perhaps the only cement of society,
may curfaRhe authority of the powerful, and the
passions of the judge, and that the people may
say, * We are protected by the laws ; we are not
slaves:' a sentiment which inspires courage, and
which is the best tribute to a sovereign who know?
his real interest. I shall not enter into particulars^
There may be some persons who expect that I
should say all that can be said upon this subject ;
to such what 1 have already written mUsi be iinin?
^elligible.

id /iS ESSAY ON

CHAP. XV, 4

Of secret ^Accusations.

SECRET accusations are a manifestfh)use, but
consecrated by custom in many nations, where, from
the weakness of the governnient, they are neces*
sary. This custom mtlkes men false and treacher-
ow. Whoever suspects another to be an inform-?
er, beholds in him an enemy ; and froxti thence
mankind are accustomed to disguise their real sen*
timents ; ^nd, from the habit of concealing them
from others, they at last even hide them from
themselves. Unhappy are those who have arrived
at this point ! without any certain and fixed prin-
ciples to guide them, they fluctuate in the vast sea
of opinion, and are busied only in escaping the
monsters which surround them : to those the pre-
sent is always embittered by the uncertainty of the
future ; deprived of the pleasures of tranquillity
and security, some fleeting moments of happiness,
scattered thinly through their wretched lives, con-
sole them for the misery of existing. Shall we,
amongst such men, find intrepid soldiers, to defend
tlieir king and country ? Amongst such men shall
we find incorruptible magistrates, who, with the
spirit of freedom and patriotic eloquence, will sup-

CRIMES AND PUNISHMENTS. S7

port and explain the true interest of their sove-
reign; who, with the tributes, offer up at the throne
the love and blessing of the people^ and thus be.
stow on the palaces of the great and the humble
cot(!age peace and security^ and to the industrious
a prospect of bettering jtheir lot that useful fer-^
ment and vital principle of states ?

Who can defend himself from calumny, armed
with that impenetrableshield of tyranny, secrecy?
What a miserable government must that be wherci
I the sovereign suspects an enemy in every subject,
and, to secure the tranquillity of the public^ is
obliged to sacrifice the repose of every individual.

By what argument is it pretended that secret
accusations may be justified ? The public safety,
say they, and the security and maintenance of the
established form of governments But what a
strange constitution is that where the government,
which hath in its favour not only power, but opi-
nion, still more efiicacious, yet fears its own sub*
jects ? The indemnity of the informer; do not the
laws defend him sufficiently ? and are there sub-
jects more powerful than the laws? The necessity of
protecting the informer from infamy ; then secret
^ calumny is authorised, and punished only when
public. The nature of the crime ; if actions, indif-

5B AN ESSAY ON

fercnt in themselves, or even useful to the public;,
were called crimes, both the accusation and the
trial could never be too secret. But can there be
any qrime committed against the public which
ought not to be publicly punished? I respect all
governments ; and I speak not of any one in par-
ticular. Such may sometimes be the nature of
circumstances, that, when abuses are inherent in
the constitution, it may be imagined, that to rectify
tbem would be to destroy the constitution itself.
But, were I to dictate new laws in a remote cor-
ner of the universe, the good of posterity, ever
present to my mind, would hold back my trembling
hand, and prevent me from authorising secret ac-
ciisations.

Public accusations, says Montesquieu, are more
conformable to the nature of a republic, where
zeal for the public good is the principal passion of
a citizen, than of a monarchy, in which, as this
sentiment is very feeble, from the nature of the
government, the best establishment is that of com-
inissionersy who, in the name of the public, accuse
the infractors of the laws. But in all governments,
as well in a republic as in a monarchy, the punish-
mait due to the crime of which one accuses ano-
ther ought to be inflicted on the infomler.

CRIMES AXD PUNISHMENTS. - ^ 59

CHAP. XVI.

Of Torture.

THE torture of a criminal during the course of
his trial is a cruelty consecrated by custom in most
nations. It is used with an intent either to make
him confess his crime, or to explain some contra-
dictions into which he had been led during his ex-
amination, or discover his accomplices, or for some
kind of metaphysical and incomprehensible purga-
tion of infamy, or, finally, in order to discover
other crimes of which he is not accused, but of
which he maybe guilty.

No man can be judged a criminal until he be
found guilty ; nor can society take from him the
public protection until it have been proved that
Jie has violated the conditions on which it was
granted. What right, then, but that of power,
can authorise the punishment of a citizen so long
as there remains any doubt of his guilt ? This di-
lemma is frequent. Either he is guilty, or not
guilty. If guilty, he should only suffbr the punish-
ment ordained by the laws, and torture becomes
useless, as his confession is unnecessary^ Jf h^

• 60 AN ESSAY ON

be not guilty, you torture the innocent ; for, in
the eye of the law, every man Is innocent whose
crime has not been proved. Besides, it is con-
founding all relations to expect that a man should
be both the accuser and accused ; and that pain
'.fhouid be the test of truth, as if truth resided in
the muscles and fibres of a wretch in torture. By
tl^s method the robust will escape, and the feeble
be condemned. These are the inconveniencies of
this pretended test of truth, worthy only of a can-
nibal, and which the Romans, in many respects
barbarous, and whose savage virtue has been too
much admired, reserved for the slaves alone.

What is the political intention of punishments?
To terrify and be an example to ot)iers. Is this
intention answered by thus privately torturing the
guilty and the innocent ? It is doubtless of impor-
tance that no crime should remain unpunished ;
but it is useless to make a public example of the
author of a crime hid in darkness. A crime al-
ready committed, and for which there can be no
remedy, can only be punished by a political society
with an intention that no hopes of impunity should
induce others to commit the same. If it be true,
that the number of those who from fear or virtue
respect the laws is greater than of those by whom
they are violated, the risk of torturing an innocent

CRIMES AND PUNISHMENTS, 6|

person is greater, as there is a greater probabil ity
that J ceteris paribus J an individual hath observed,
than that he hath infringed the laws.

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

It is not difficult to trace this senseless law to
its origin ; for an absurdity, adopted by a whole
nation, must have some affinity with other ideas
established and respected by the same nation.
This custom seems to be the offi»pring of religion,
by which mankind, in all nations and in all ages,
are so generally influenced, Wc are taught by
our infallible church, that those stains of sin con-
tracted through human frailty, and which have
not deserved the eternal anger of the Almighty,
are to be purged away in another life by an in-
comprehensible fire. . Now infamy is a stain, and
if the punishnients and fire of purgatory can take
away all spiritual stains, why should not the pain
of torture take away those of a civil nature ? I
imagine, that the confession of a criminal, which

6'^ AN ESSAY ON

in some tribunals is required as being essential to
his condemnation^ has a similar origin, and baa
been taken from the mysterious tribunal of pcni-
tence, were the confession of sins is a necessary
part of the sacrament. Thus have men abused
the unerring light of revelation ; and, in the times
of tractable ignorance, having no other, they na-
turally had recourse to it on every occasion, making
the most remote and absurd applications. More-
over, infamy is a sentiment regulated neither by
the laws nor by reason, but entirely by opinion ;
but torture renders the victim infamous, and there-
fore cannot take infamy away.

Another intention of torture is to oblige the
supposed criminal to reconcile the contradictions
into which he may have fallen during his exami-
nation ; as if the dread of punishment, the uncer-
tainty of his fate, the solemnity of the court, the
majesty of the judge, and the ignorance of the
accused, were not abundantly sufficient to account
for contradictions^ which are so common to men
even in a state of tranquillity, and which must ne-
cessarily be multiplied by the perturbation of the
mind of a man entirely engaged in the thoughts
of saving himself from imminent danger.

This infamous test of truth is a remaining

CRIMES AND PUNISHMENTS. 5? >

taonument of that ancient and savage legislation,
in which trials by fire, by boiling water, or the
uncertainty of combats, were csXLqA judgments of
God; as if the links of that eternal chain, whose
beginning is in the breast of the first cause of all
things, could ever be disunited by the institutions
of men. The only.diflference between torture and
trials by fire and boiling water is„ that the event
of the first depends on the will of the accused,
and of the second on a fact entirely physical and
external : but this diiference is apparent only, not
real. A man on the rack, in the convulsions of
torture, has it as litde in his power to declare the
truth, as, in former times, to prevent without
firaud the efiects of fire or. boiling water.

Every act of the will is invariably in proportion
to the force of the impression on our senses. The
impression of pain, then, may increase tq such a
degree, that, occupying the mind entirely, it will
compel the sufferer to use the shortest method of
freeing himself from torment. His answer, tliere-
fore, will be an eflfect as necessary as that of fire
or boiling water, and he will accuse himself of
crimes of which he is innocent : so that the very
means employed to distinguish the innocent from
the guilty will most effectually destroy all differ-

ence between them.

64 AN ESSAY ON

It would be superfluous to confirm these re-
flections by examples of innocent persons who^
from the agony of torture, have confessed them-
selves guilty: innumerable instances may be found
in all nations, and in every age. How amazing
that mankind have always neglected to draw the
natural conclusion ! Lives there a man who, if he
has carried his thoughts ever so little beyond the
tiecessities of life, when he reflects on such cruelty,
is not tempted to fly from society, and return to
his natural state of independence ?

The result of torture, then, is a matter of calcu-
lation, and depends on the constitution, which dif-
fers in every individual, and it is in proportion to
his strength and sensibility ; so that to discover
truth by this method, is a problem which may be
better solved by a mathematician than by a judge,
and may be thus stated : The force of the muscles
and the sensibility of the nerves of an innocent per-
son being given, it is required to find the degree of
pain necessary to make him confess him'self guilty
^of a given crime.

The examination of the accused is intended to
find out the truth ; but if this be discovered with
so much difficulty in the air, gesture, and counte-
nance of a man at ease^ how can it appear in a

CRIMES AND PUNISHMENTS. ^ 65

countenance distorted by the convulsions of tor-
ture ? Every violent action destroys those small
alterations in the features which sometimes dis*
close the sentiments of the heart.

These truths wer^ 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 commerr.e, riches, and power, its natural
consequences, together with the numerous exam-
ples of virtue and courage,, leave no doubt of the
excellence of its laws. They have been acknow-
ledged in Sweden, where torture has been abolish-
ed. They are known to one of the wisest mo-
narchs in Europe, who, having seated philosophy
on the throne by his beneficent legislation, has
made his subjects free, though dependent on the
laws; the only freedom that reasonable men can
desire in the present state of things. In short,
torture has not been thought necessary in the laws
of armies, comppsed chiefly of the dregs of man-
kind, where its use shoutd seem most necessary*
Strange phenomenon ! that a set of men, hardened
by slaughter, and &railiac with blood, should teach
humanity to the sons of peace.

It appears also that these truths were known,

66 AN ESSAY OK

though imperfectly, even to those by whom tor*
ture has been most frequently practised ; for a
confession made during torture, is null, if it be
not afterwards confirmed by an oath^ which if
the criminal refuses, he is tortured again. Some
civilians and some nations permit this infamous
petitio principii to be only three times repeatedp
and others leave it to the discretion of the judge ;
therefore, of two men equally innocent, or equally
guilty^ the most robust and resolute will be acquit-
ted, and the weakest and mmt pusillanimo.us will
be condemned^ in consequence of the following
excellentmodeof reasoning. ly the judge^ must find
some one guUty. Thou^ who art a strong fellow^
hast been able to resist the Jbrce of torment ; there/ore
I acquit thee. Thou, being weaker y hast yielded to
it ; I therefore condemn thee. lam semible^ that the
confession which was extorted from thee has no
weight : but if thou dost not confirm by oath what
thou hast already confessed^ I will have thee tor^
fnented again.

A very strange but necessary consequence of
the use c^ torture is, that the case of the innocent
is worse than that of the guilty. With regard to
the first, either he confesses the crime which he
has not committtd, and is condemntd; or he is
acquitted* and has suffered a punishment he did not

CRIMES AND PUNISHMENTS. j?

deserve. On the contrary, the person who is reafly
guilty has the most favourable side of the question;
fbf, if he supports the torture with firmness and
resolution, he is acquitted, and has gained, havilig
exchanged a greater punishment for a less.

The hw by which torture is authorised, ssiys,
Men^ be insensible to pain. Nature has' indeed given
ymi an irresistible self-lave^ and an unalienable right
qf self 'preservation ; but t create in you a contrary
sentiment^ an heroical hatred of tfoursetoes. I com*
mand you to accuse yoursehes^ and to declare the
truth, amidst the tearing (^ your Jtesh and the dis*

location of your hones.

Torture is used to discover whether the criminal
be guilty of other crimes besides those of which
he is accused, which is equivalent to the following
reasoning. Thou art guilty of one crime y therefore
it is possible that thou mayest have eommitted a
thousand others ; but the affair being doubtful, I
must try it by my criterion of truth. The laws
order thee to be tormented because thou art guilty^
because thou mayest be guilty^ and because I choose
thou shouldst be guilty.

Torture is used to make the criminal discover
his accomplices ;^ but if it has been demonstrated

68 AN ESSAY ON

that it is not at a proper means of discovering truth,
how can it serve to discover the accomplices^
which is one of the truths required ? Will not the
man who accuses himself yet more readily accuse
others ? Besides, is it just to torment one man
for the crime of another? May not the accomplices
be found out by the examination of the witnesses,
or of the criminal ; from the evidence, or from
the^ nature of the crime itself; in short, by all the
means that have been used to prove the guilt of
the prisoner? The accomplices commonly fly when
their comrade is taken. The uncertainty of their
fate condemns them to perpetual exile, and frees
society from the danger of further injury ; whilst
the punishment of the* criminal, by deterring
others^ answers the purpose for which it was or-
dained.

GROrBS AND PUNISHMENTS S9

CHAP. XVII.

Of pecuniary Punishments.

THERE was a time when all punishments were
pecuniary. The crimes of the subjects were the
inheritance of the prince. An injury done to so-
ciety was a favour to the crown ; and the sove-
reign and magistrates, those guardians of the pub-
lic security, were interested in the violation of the
laws. Crimes were tried, at that time, in a court
of exchequer, and the cause became a civil suit
between the person accused and the crown. The
magistrate then had other powers than were ne^
cessary for the public welfare, and the criminal
suffered other punishments than the necessity of
example 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 confess him-
self guilty was to acknowledge himself a debtor to
the crown ; which was, and is at present (the ef-
fects continuing after the causes have ceased) the
intent of all criminal causes. Thus, the criminal
who refuses to confess his crime, though convicted
by the most undoubted proofs, will suffer a less
punishment than if he had confessed ; and he will

r..-

<^ AN ESSAY ON

not be put to the torture to oblige him to confess
other crimes which he might have committed, as
he has not confessed the principal. But the con*
fession being once obtained, the judge becomes
master of his body^ and torments him with a stu-
died formali^i in order to squeeze out of him all
the profit possible. Confession, then, is allowed
to be a convincing proof, especially when obtained
by the force of torture ; at the same time that an
extrajudicial confession, when a man is at ease
and under no apprehension, b not sufficient for
his condemnation.

All inquiries which may serve to clear up the
fact, but which may weaken the pretensions of
the crown, are excluded. It was not from com-
passion to the criminal, or from considerations of
humanity, that torments were sometimes spared,
but out of fear of losing those rights which at
present appear chimerical and inconceivable. The
judge becomes an enemy to the accused, to a
wretch a prey to the horrors of a dungeon, to tor-
ture, to death, and an uncertain futurity^ more
terrible than all ; he inquires not into the truth
of the fact, but the nature of the crime ; he lays
snares to make him convict himself; he fears lest
he should not succeed in finding him guilty, and
lest that infallibility which every man arrogates to

CBIMES AND miNISHMENW.

himself should be^ called in question. It is in the
power of the magistrate to determine what evi-
dence is sufficient to send a man to prison ; that
he may be proved innocent, he must first be sup-
posed guilty. This is what is called an offensive
prosecution ; and such are all criminal proceed*
ings in the ei^teenth century, in all parts of our
polished Europe. The true prosecution^^br in/br^
matiorij that is„ an impartial inquiry into the fact,
that which reason prescribes^ which military laws
adopt, and which Asiatic despotism allows in suits
of one subject against another^ is very' little prac-
tised in any courts of justice. What a labyrinth
of absurdities ! Absurdities which will appear in-
creditable to haj^ier posterity. The philosopher
only will be able to read, in the nature of man, the
possibiii^ of there ever having been such a system.

-t

^'"^W^

73 . AN ESSAY ON

CHAP. XVIII.

Of Oaths.

THERE is a palpable contradiction between
the laws and the natural sentiments of mankind in
the case oioathsy which are administered to a cri-
minal to make him speak the truth, when the con-
trary is his greatest interest ; as if a man could think
himself obliged to contribute to his own destruc-
tion, and as if, when interest speaks, religion was
not generally silent, religion, which in all ages
^ hath| of all other things, been most commonly
abused : and indeed, upon what motive should it
be respected by the wicked, when it has been thus
violated by those who were esteemed the wisest
of men ? The motives which religion opposes to
the fear of impending evil and the love of life are
too weak, as they are too distant, to make any
impression on the senses. The affairs of the other
world are regulated by laws entirely different from
those by which human affairs are directed ; why
then should you endeavour to compromise matters
between them ? Why should a man be reduced to
the terrible alternative^ either of offending God,
or of contributing to his own immediate destruc-

CRIMES AND PUNISHMENT8. T3 '

tion ? The laws which require an oath in siich a
case leave him only tlie choice of becoming a bad
Christian or a martyr. For this reason, oaths be-
come, by degrees, a mere formality, and all sen-
timents of religion, perhaps the only motive of
honesty in the greatest part of mankind, are de-
stroyed. Experience proves .their inutility : I ap-
peal to every judge, whether he has ever known
that an oath alotie has brought truth from the lips'
of a criminal ; and reason tells us, it must be so ;
for all laws are useless, and in consequence de-
structive, which contradict the natural feelings of
mankind. Such laws are like a dike^ opposed di-
rectly to the course of a torrent ; it is either im-
mediately overwhelmed, or, by a whirlpool for-
med by itself, it is gradually undermined and de-
stroyed*

74 AN ES8AY ON

CHAP. XIX.

Of the Mvantage of immediate Punishment

THE more immediaiely after the commission
of a crime a punishment is inflicted, the more just
and Ubcful it will be. It will be more just, because
it spares the criminal the cruel and superfluous
torment of uncertainty, which increases in propor-
tion to the strength of his imagination and the
sense of his weakness ; and because the privation
of liberty, being a punishment, ought to be inflict*
ed before condemnation but for as short a time
as possible. Imprisonment^ I say, being only the

means of securing the person of the accused until
he be tried, condemned, or acquitted, ought not
only to be of as short duration, but attended with
as little severity as possible. The time should be
determined by the necessary preparation for the
trial, and the right of priority in the oldest pri-
soners. The confinement ought not to be closer
than is requisite to prevent his flight, or his con-
cealing the proofs of the crime; and the trial
should b^ conducted with all possible expedition.
Can there be a more cruel contrast than that be.
tween the indolence of a judge and the painful

CRIMES AND PUNISHMENTS. f*

anxiety of the accused ; the comforts and plea-
sures of an insensible magistrate, and the filth and
misery of the prisoner ? In general, as I have be-
fore observed, The degree of the punishment, and
the consequences of a crime ^ ought to be so contri*
ved as to have the greatest possible effect on others^
with the least possible pain to the delinquent. If
there be any society in which this is not a funda-
mental principle, it is an unlawful society ; for
imankind, by their union, originally intended to
subject themselves to the least evib possible.

An immediate punishment is more useful ; be*
cause the smaller the interval of time between
the punishment and the* crimpt, the stronger and
. more lasting will be the association of the two
ideas of crime and punishment ; so that they may
be considered, one as the cause, and the other as
the unavcadable and necessary effect. It is de-
monstrated, that the association of ideas is the
cement which unites the fabric of the human in-
tellect, without which pleasure and pain would
be simple and ineffectual sensations. The vulgar, ,
that is^ all men who have no general ideas or uni-
versal principles^ act in consequence of the most
immediate and familar associations ; * but the
more remote and complex only present them-
selves to the minds of those who are passionately

r6 AN ESSAY ON

attached to a single object, or to those of greater
understanding, who have acquired an habit of
rapidly comparing together a number of objec^s^
and of forming a conclusion ; and the result, that
is^ the action in consequence, by these means be-
comes less dangerous and uncertain.

It is, then, of the greatest importance that tlie
punishment should succeed the crime as imme-
diately as possible, if we intend that, in the rude
minds of the multitude, the seducing picture of
the advantage arising from the crime should in-
stantly awake the attendant idea of punishment.
Delaying the punishment serves only to separate

these two idpas, and thus affcp.tsthe minds of the

spectators rather as being a terrible sight than the
necessary consequence of a crime, the horror of
which should contribute to heighten the idea of
the punishment.

There is another excellent method of strength-
ening this important connection between the ideas
of crime and punishment ; that is, to make the
punishment as analogous as possible to the nature
of the crime, in order that the punishment may
lead the mind to consider the crime in a different
point of view from that in which it was placed by
the flattering idea of promised advantages.

CRIMES AND PUN18HMBNTS. tT

Crimes of less importance are commonly pu-
mshed either in the obscurity of a prison, or the
criminal is transported^ to give by his slavery an
example to societies which he never offended ; an
example absolutely useless, because distant from
the place where tlie crime was committed. Men
do not, in general, commit great crimes delibe-
rately, but rather in a sudden gust of passion ;
and they commonly look on the punishment due
to a great crime as remote and improbable. The
public punishment, therefore^ of small crimes will
make, a greater impression, and, by deterring men
from the smaller^ will effectually prevent the
greater.

rt ^ AN ESSiiT OS

■\

.•^s

CHAP. XX,

Of Jicts of violence.

SOME crimes relate to person ^ others to pro-
peril/. The first ought to be punished corporally.
The great and rich should by no means have it
in their power to set a price on the security of
the weak and indigent ; for then riches, whiclt^
under the protection of the laws, are the reward
of industry, would become the aliment of tyranny.
Liberty is at an end whenever the laws perniit
that, in certain cases, a man may cease to be aper^
soriy and become a thing. Then will the powerful
employ their address to select from the various
combinations of civil society all that is in their
own favour. This is that magic art which trans-
forms subjects into beasts of burden, and which,
in the hands of the strong, is the chain that.bind^
the weak and incautious. Thus it is that in some
governments, where there is all the appearance of
Liberty, tyranny lies concealed, and insinuates it-
self into some neglected corner of the constitutioQi
where it gathers strength insensibly. Mankind
generally oppose, with resolution, the assaults of
barefaced and open tyranny, but dis^regard the

CRIMES AND PUNISHMENTS. 79

litde; insect that gnaws through die dike, and
opens a sure though secret passage to inundation

CHAP. XXL

Of the Punishment of the Cobles.

WHAT, punishments shall be ordained for the
noblesi whose privileges make so great a part of
the laws of nations ? I do not mean to inquire
whether the hereditary distinction between nobles
and commoners be useful in any government^ or
necessary in a monarchy ; or whether it be true
that they form an intermediate power, of use in
moderating the excess of both extremes; or
whether they be not rather slaves to to their own
body, and to others^ confining within a very small
circle the natural effects and hopes of industry,
like those litde fruitful q)ots scattered here and
there in the sandy deserts of Arabia ; or whether
it be true that a subordination of rank and condi-
tion is inevitable or useful in society ; and, if so,
whether this subordination should not rather sub-
sist between individuals than particular bodies,
whether it should not rather circulate through the
whole body politic than be confined to one part,
and, rather than be perpetual, should it not be in-

8U AN ESSAY OK

cessantly produced and destroyed. Be these ad
they may, I assert that the punishment of a no-
bleman should in no wise differ from that of the
lowest member of society.

Every lawful distinction, either in honours or
riohes^ supposes previous equality, founded on the
laws, on which all the members of society are
considered as being equally dependent. We should
suppose that men, in renouncing their natural des-
potism^ said, The wisest and most industrious
among us should obtain the greatest honours^ and
his dignity shall descend to his posterity. The
fortunate and happy may hope for greater honours^
but let him not therefore be less afraid than others
of violating tliose conditions on which he is exalt"
ed. It is true indeed that no such degrees were
ever made in a general diet of mankind, but they
exist in the invariaDle relations of thhigs ; nor do
they destroy the advantages which are supposed
to be produced by the class of nobles, but prevent
the inconveniences ; and they make the laws res-
pectable, by destroying all hopes of impunity.

It may be objected, that the same punishment
inflicted on a nobleman and a plebeian becomes
really different from the difference of their educa-
tion, and from the infamy it reflects on an illustrU

•BDfES AND PUNISHMENTS. 81

•US family : but I answer, that punishments are to
be estimated, not by the sensibility of the criminal^
but by the injury done to society, which injury is
augmented by the high rank of the offender. The
precise equality of a punishment can never be
more than external, as it is in proportion to the de-
gree of sensibility which differs in every individual.
The infamy of hi innocent family may be easily
obliterated by some public demonstration of fa-
vour from the sovereign, and forms have always
more influence than reason on the^azing multi-
tude.

CHAP. XXII.

Of Eobhenj.

THE punishment of robbery, not accompanied
with violence, should be pecuniary. He who en-
deavours to enrich himself with the property of
another should be deprived of part of his own.
But this crime, alas ! is commonly the efiect of
misery and despair ; the crime of that unhappy
part of mankind to whom the right cf exclusive
property, a terrible and perhaps unnecessary
right, has left but a bare existence. Besides^ as pe-
cuniary punishments may increase the number of

92 AN ESSAY ON

robbers, by increasing the number of poor, and
may deprive an innocent family of subsistence, the
most proper punishment will be that kind of sla-
very which alone can be called just; that is,
which makes the society, for a timc^ absolute mas-
ter of the person and la l)our of the criminal, in
order to oblige him to repair, by this dependence,
the unjust despotism he usurped over the property
of another, and his violation of the social compact.

When robbery is attended with violence, cor-
poral punishment should be added to slavery.
Many writers have sliewn the evident disorder
which must arise from not distinguishing the pun-
ishmcnt due to robbery with violence, and that
due to theft or robbery committed with dexteri-
ty, absurdly making a sum of money equivalent
to a man's life. But it can never be superfluous
to repeat, again and again, those truths of which
mankhid have not profited ; for political machines
preserve their motion much longer than others,
and receive a new impulse with more difficulty.
These crimes are in their nature absolutely dif-
fercnt, and this axiom is as certain in politics as
in mathematics, that between qualities of differ-
ent natures there can be no similitude.

dUMES AXD I'UNISHMENl?.

CHAP. XXIH.

Of Infamy considered as a PunisfimenL

THOSE injuries which affect the honour^ that
is, that just portion of esteem which every citizen
has a right to expect from others, should be punish*
ed with infamy. Infamy is a mark of the public
disapprobation, which deprives the object of all
consideration in the eyes of lus fellow-citizens,
of the confidence of his country, and of that fra-
ternity which exists between members of the same
society. This is not always in the power of the
laws. It is necessary tliat the infamy inflicted by
the laws should be the same with that which re-
sults from the relations of things, from universal
morality, or from that particular system, adopted
by the nation and the laws, which governs the
opinion of the vulgar. If, on the contrary, one
be different from the other, eitlier the laws will no
longer be respected, or the received notions of
morality and probity will vanish, in spite of the
declamations of moralists, which are always too
weak to resist the force of example. If we de-
clare those actions infamous which are in them-
selves indifferent, we lessen the infamv of those
which are really infamous*

84 AN ESSAY ON

The punishment of infamy should not be too
frequent, for the power of opinion grows weaker
by repetition ; nor should it be inflicted on a num-
ber of persons at the same time, for the infamy of
many resolves itself into the infamy of none.

Painful and corporal punishments should never
1^ applied to fanaticism ; for, being founded on
pride, it glories in persecution. Infamy and ridi-
cule only should be employed against fanatics :
if the first, their pride will be overbalanced by the
pride of the people ; and we may judge of the
power of the second, if we consider that even
truth is obliged to summon all her force when at-
tacked by error armed with ridicule. Thus, by
opposing one passion to another, and opinion to
opinion, a wise legislator puts an end to tlie ad-
miration of the populace, occasioned by a false
principle, the original absurdity of which is veil-
ed by some well deduced consequences.

This is the method to avoid confounding the
immutable relations of things^ or opposing nature,
whose actions, not being limited by time, but
operating incessantly, overturn and destroy all
those vain regulations which contradict her laws.
It is not only in the fine arts that the imitation of
nature is the fundamental principle; it is the

CRIlfES ANB PUNISHBffiNTS; 8S

.same in sound policy, which is no other than the
art of uniting and directing to the same end the
natural aud immutable sentiments of mankind.

CHAP. XXIV.

Of lileness.

A WISE government will not suffer in the
midst of labour and industry, that kind of politi-
cal idleness which is confounded by rigid declaim-'
ers with the leisure attending riches acquired by
industry, which is of use to an increasing society
wlK^n confined within proper limits. I call those
politically idle, who neither contribute to the good
of society by their labour nor their riches ; who
continually accumulate, but never spend; who
are reverenced by the vulgar with stupid admira-
tion, and regarded by the wise with disdaui ; who»
being victims to a monastic life, and deprived of
all incitement to that activity which is necessary
to preserve or increase its comforts, devote all their
vigour to passions of tiie strongest kind, the pas«
sions of opinion. I call not him idle who enjoys the
fruits of the virtues or vices of his ancestors, and,
in exchange for his pleasures, supports the indus-
trious poor. It is not then the narrow virtue of

66 AN ESSAY OK

austere moralists, but the laws, that should deter-
mine what species of idleness deserves punishment.

CHAP. XXV.

Of Banishment and Confiscation.

HE who disturbs the public tranquillity, who
does not obey the laws, who violates the condi-
tions on which men mutually support and defend
each other, ought to be excluded from society,
that is, banished.

It seems as if banishment should be the punish-
ment of those who, being accused of an atrocious
crime, are probably, but not certainly, guilty.
For this purpose would be required a law the least
arbitrary and the most precise possible; which
should condemn to banishment those who have
reduced the community to the fatal alternative
either of fearing or punishing them unjustly, still,
however, leaving them the sacred right of proving
their innocence. The reasons ought to be strong-
er for banishing a citizen than a stranger, and
for the first accusation than for one who hath
been often accused.

GUBfES AKOf PUNISHMENTSt 87

Should the person who is excluded for ever
from society be deprived of his property ? This
question may be considered in different lights.
The confiscation of effects, added to banishment
is a greater punishment than banishment alone ;
there ought then to be some cases, in which, ac-
cording to the crime, cither the whole fortune
should be confiscated, or part only, or none at alL
The whole should be forfeited, when the law
which ordains banishment declares, at the same
time, that all connections or relations between the
society and the criminal are annihilated* In this
case the cidzen dies ; the man only remains, and,
with respect to a political body, the death of the
citizen should have the same consequences with
the death of the man. It seems to follow then,
that in this case, the effects of the criminal should
devolve to his lawful heirs. But it is not on ac>
count of this refinement that I disapprove of con-
fiscations. If some have insisted, that they were
a restraint to vengeance and the violence of par-
ticulars, they have not reflected, that, though
punishments be productive of good, they are not,
on that account, more just ; to be just, they must
be necessary. Even an useful injustice can never
be allowed by a legislator, who means to guard
against watchful tyranny, which, under the flat-
tering pretext of momentary advantages, would

M AN ESSAY ON

establisli permanent principles of destruction, and,
to procure the ease of a few in a high station,
would draw tears from thousands of the poor.

l^he law which ordains confiscations sets a
price on the head of the subject, with the guilty
punishes the innocent^ and, by reducing them to
indigence and despair, tempts them to become
criminal. Can there be a more melancholy spec-
tacle than a whok* family overwhelmed with in-
famy and misery from the crime of their chief?
a crime, which, if it had been possible, they were
restrained from preventing, by that submission
which the laws themselves have ordained.

CHAP. XXVI.

Of Hit Spirit of Family in States.

IT is remarkable, that many fatal acts of injus-
tice have been authorised and approved, even by
the wisest and most experienced men, in the freest
republics. This has been owing to their having
considered the state rather as a society o£ families
than of men. Let us suppose a nation composed of
an hundred thousand men, divided into twenty
thousand families of five persons each, including

CRIMES AND PUNISHMENTS. «9

the head or master of the family^ its representative.
If it be an' association oi families^ there will be
twenty thousand men, and eighty thousand slaves ;
orifof/w^rt; there will bean hundred thousand
citizens^ and not one slave. In the first case we
behold a republic, and twenty thousand little mo-
narchies, of which the heads are the sovereigns :
in the second the spirit of liberty will not only
.breath in every public place of the city, and in the
assemblies of the nation, but in private houses,
where men find the greatest part of their happi-
ness or misery. As laws and customs are always
the effect of the habitual sentiments of the mem-
bers of a republic, if the society be an association
of the heads of families, the spirit of monarchy
will gradually make its way into the republic itself,
as its effects ^ will only be restrained by the oppo-
site interests of each, and not by an universal spirit
of liberty and equality. The private spirit of fa-
mily is a spirit of minuteness;, and confined to lit-
tle concern^. Public spirit, on the contrary, is in-
fluenced by general principles, and from facts
deduces general rules of utility to the greatest
number.

In a republic of families, the children remain
under the authority of the father as long as he
lives, and are obliged to wait until his death for

90 AN ESSAY ON

an existence dependent on the laws alone. Ac-
customed to kneel and tremble in their tender
years, when their natural sentiments were less
restrained by that caution, obtained by experi-
ence, which is called moderation, how should
they resist those obstacles which vice always op-
poses to virtue in the languor and decline of age,
when the despair of reaping the fruits is alone
sufficient to damp the vigour of their resolutions ?

In a republic, where every man is a citizen,
family-subordination is not the effect of comput*
sion, but of contract ; and the sons, disengaged
from the natural dependence which the weakness
of infancy and the necessity of education requi-
red, become free members of society, but remain
subject ta the head of the family for their own
advantage, as in the great society.

In a republic of families, the young people,
that is, the most numerous and most useful part
of the nation, are at the discretion of their &-
thers r in a republic of men, they are attached to
their parents by no other obligation than that sa-
6red and inviolable one of mutual assistance, and
of gratitude for the benefits they have received ;
a sentiment destroyed not so much by the wick-

GRIMES UNO FUNISHMENTB. 91

odness of the human heart, as by a mistaken sub-
jection prescribed by the laws.

These contradictions between the laws of fami-
lies and the fundamental laws of a state are the
source of many others between public and private
morality, which produce a perpetual conflict in
the mind. Domesfic morality inspires submission
and fear ; the other courage and liberty. That in-
sti ucts a man to confine his beneficence to a sinaU
number of persons, not of his pwn choice ; this
to extend it to all mankind. That commands a
eontinual sacrifice of himself t-o a vain idol called
HiYi good of the family J which is often no real good
to any one of those who compose it ; this teaches
him to consider his own advantage, without of-
fendingthelaws, orexciteshimto sacrifice himself
for the good of his country, by rewarding him be-'
forehand with the fanaticism it inspires. Such
coutradictions are the reason that men neglect the
pursuit of virtue, which they can hardly distin-
guish amidst the obscurity and confusion of natu-
ral and moral objects. How frequently are men^
upon a retrospection of their actions, astonished
to find themselves dishonest ?

In proportion to the increase of society each
member becomes a smaller part of the whole |

92 AN ESSAY OK*

and the republican spirit diminishes in the same
proportion, if neglected by the laws. Political so-
cicties, like the human body, have their limits cir«
cumscribed, which ihey cannot exceed, without
disturbing their economy. It seems as if the
greatness of a state ought (o be inversely as the
sensibility and activity of the individuals ; if, on
the contrary, population and activity increase in
the same proportion, the laws will with difficulty
prevent the crimes arising from the good they
have produced. An overgrown republic can only
be saved from despotism by subdividing it into a
numl^r of confederate republics. But how is this
practicable ? By a despotic dictator, who, with the
courage of Syila^ has as much genius for building
up as that Roman had for pulling down. If he
be an ambitious man, his reward will be immortal
glory ? if a philosopher, the blessings of his fellow-
citizens will sufficiently console him for the loss
of authority, though he should not be insensible
to their ingratitude.

In proportion as tlie sentiments which unite us
to the state grow weaker, those which attach us
to the objects which more immediately surround
us grow stronger ; therefore, in the most despotic
government, friendships are more durable, and
domestic virtues (which are always of the lowest

Crimes anb t>trmsmiENTs. 93

class) are the most common, or the only virtues
estistingw Hence it appears how confined have been
the vieWs of the ^eate^t number of legislator^.

CHAP. XXVII.

Of the Mildness of Punishments.

THE course of my ideas has carried me away
from my subject, to the elucidation of which I now
return. Grimes are mot-e eflfectually prevented by
the certainty than the severity of punishment*.
Hence in a magistrate the necessity of vigilance,
and in a judge of implacability^ whiiC^h, that it may;
become an useful virtuci should be joined to a
mild legislation. The certainty of a small punish-
ment will make a stronger impression than the
fear of one more severe, if attended with the hopes
of escaping ; for it is the nature of mankind to be
terrified at the approach of the smallest inevitable
evil, mWlst hope, the best gift of Heaven, hath the
power of dispelling the apprehension of a greater,
especially if supported by examples of impunity,
which weakness or avarice too frequently afibrd.

If puhiishm'ents be very severe, men are natural-
ly led to the perpetration of other crimes, to avoid

94 AN B88AY ON

the punishment due. to the first The countries
and times most notorious for severity of punish*
ments were always those in which the most bloody
and inhuman actions and the most atrocious
crimes were committed ; for the hand of the le-
gislator and the assassin were directed by the
same spirit of ferocity^ wliich on the throne dic-
tated laws of iron to slaves and savages, and in
private instigated the subject to sacrifice one ty-
rant to make room for another.

In proportion as punishments become more
cruel; the minds of men, as a fluid rises to the
same height with that which surrounds it, grow
hardened and insensible ; and the force of the
passions still continuing, in the space of an hun-
dred years the wheel terri&ts no more than for*,
merly the prison. That a punishment may pro-
duce the effect required; it is sufficient that the
evil it occasions should exceed the good expect-
ed from the crime, including in the calculation
the certainty of the punishment, and the piii^ation
of the expected advantage. All severity beyond
this is superfluous, and therefore tyrannicaL

Men regulate their conduct by the repeated
impression of evils they know, and not by those
with wluch they are unacquainted* Let u^ for

GRIMES AND POKISRMENTS. 96

example, suppose two nations, in one of which
the greatest punishment is perpetual slavery^ and
in the other the wheel: I say, that both will in«
spire the same degree of terrdr, and that their
can be no reasons for increasing the punishments
of the first, Which are not equally valid for aug-
{nenting those of the second to more lasting and
xsioct: ingenious modes of tormenting, and so on
to the most exquisite refinements of a science
too well known to tyrants.

There are yet two other consequences of cru-
el punishments, which counteract the purpose of
their institution, which was, to prevent crimes.
The first arises from the impossibility of esta-
blishing an exact proportion between the crime
and punishment ; for though ingenious cruelty
hath greatly multiplyed the variety of torments,
yet the human frame can suffer only to a certain
degree^ beyond which it is impossible to proceed,
be^the enormity of the crime ever so great. The
second consequence is impunity. Human nature
is limited no less in evil than in good. Excessive
barbarity can never be more ths^ temporary, it
being impossible that it should be supported by
a permanent system of legislation ; for if the laws
be too cruel, they must be altered, or anarchy
and impunity will succeed.

9^ AK E86AY ON .

Is it possible without shuddering with horror,
to n^ad in bistor}' of the barbarous and useless
torments that were cooly invented and executed
by men who were cabled sages ? Who does not
tremble at the thoughts of thousands of wretches,
whom their misery, either caused or tolerated bjr
the laws, which favoured the few and outraged
the many, had forced in despair to return to a
state of nature, or accused of imjx>9sibl^ crimes,
the fabric of ignorance and superstition, or guilty
only of having been faithful to their own princi-
pies ; who, I say^ can, without horror^ think of
their being torn to pieces, with slow and studied
barbarit)', by men endowed with the* same pas-
sions and. the same feelings ? A dcflightful spec-
tacle to a &Qatic jsiultitude !

CRIMES AXB PUNISHMENTS* 97

CHAP. XXVIIL

Of the PunishmmU of DeatK

THE useless profusion of punishments, which
has never made men better, induces me to in-
quire, wh^er the punishment of death be really
just or useful in a well governed state ? What
right, I ask, have men to cut the throats of ^their
fellow-creatures? Certainly not that on which
the sovereignty and laws are founded. The laws,
as I have said before, are only the sum of the
smallest portions of the private liberty of each
individu^, and represent the general will, which
is the aggregate of that of each individual. Did
any one ever give to others the right of taking
away his life ? Is it possible that, in the smallest
portions of the liberty of each, sacrificed to the
good of the public, can be contained the greatest
of all good, life ? If it were so, how shall it be
reconciled to the maxim which tells u% that a
man has no right to kill himself^ which he certain-
ly must have, ifhe could give it away to another?

But the punishment of death is not authorised
by any right; for I have demonstrated that no

98 AN ESSAY OK

such right exists. It is therefore a war oFa whole
nation against a citizen^ whose destruction they
consider as necessary or useful to the general
good. But if I can further demonstrate that it
is neither necessary nor useful, I shall have gain-
ed the cause of hunianity.

i. * The death of a citizen cannot be necessary but
in one case : when, though deprived o^ his liber-
ty, he has such power and connections as may
endanger the security of the nation ; when his
existence may produce a dangerous revolution in
the established form of government. But, even
in this case, it can only be necessary when a na^
tion is on the verge of recovering or losing its li-
bert\ , or in times of absolute anarchy, when the
disorders themselves hold the place of laws : but
in a reign of tranquillity, in a fOrm of government
approved by the united wishes of the nation, in a
state well fortified from enemies without and
supported by strength within, and opinion, per-
haps more efficacious, where all power is lodged
in the hands of a true sovereign, wh(-re riches can
purchase pleasup s and not authority, then c m be
no necessity for taking away the life of a subject.

If the experience of all ages be not siifficient
to prove, that the punishment of death has never

CRIMES AND PUNISHMENTS. 99

pTcypnii^ deteririincd men from injuring society,
if Ac example of the Romans, if twenty years'
reign of Elizabeth, empress of Russia, in which
she gave the fathers of th«ir country sm example
more illustrious than many conquests bought with
blood ; if, I say, all this be not i^ufficient to pej^-
suade maiikmd, who always suspect the voice 6 .
feason, and who choose rather to be led by author' •
rity, let us consult human nature in proof of my
assertion.

It is , not the intensfeness of the pain that has
the greatest effect on the mind, but its continu-
ance ; for our sensibility is more easily and more
powerfully affected by weak but repeated impress-
sions, than by a violent but momentary impulse.
The power of habit is universal over every sen-
sible being. A:^ it is by that we learn to speak,
to walk, and to satisfy our necessities, so the ideas
of morality arc stamped on our minds by repeat-
ed impressions. The death of a criminal is a ter-
rible but momentary spectacle, and therclofe a
less efficacious method of deterring others than
the continued example of a man deprived of his
liberty, condemned, as a beast of burden, to re-
pair, by his labour, the injurs he has done to so-
ciety. If I commit such a crimen says the specta-
tor to himself, / shail be reduced to that misera^

100 AN ESSAY OSfi -

Mc eofuBtion for the rent qf my life. A much
more powerful preventive than the fear of death
which men always behold in distant obscurity.

The terrors of death make so slight -an impres-
don, that it has not force enough to withstand
tiie forgetfulness natural to masikind, even in the
most essential things, especially when assisted by
the passions. Violent impressions surprise us^
but their effect is momentary ; they are fit to pro-
duce those revolutions which instantly transform
a common man into a Lacedaemonian or a Per-
sian ; but in a free and quiet government they
0ught to be rather frequent than strong.

The execution of a criminal is to the multitude
a spectacle which in some excites compassion mix-
ed with indignation. These sentiments occupy
the mind much more than that salutary terror
which the laws endeavour to inspire ; but, in the
contemplation of continued suffering, terror is the
only, or at least predominant sensation. The se*
verity of a punishment should be just sufficient to
excite compas^on in the spectators, as it is io«
tended more for them than for the criminaL

A punishment, to be just, should have onlj
that degree ckf severity which is sufficient to de-

QRDffES ANB^PmnSHMENTS. m

ter others. Now there is no man who^ upon the
least reflection, would put hi competition the to-
tal and perpetual loss of his liberty, with the
greatest advantages he could possibly obtain in
consequence of a crime/ Perpetual slavery^ then,
has in it all that is necessary 16 deter the most
hardened and determined, as much as the punish-
ment of death. I say it has more. There are
many who can look upon death with intrepidity
and firmness, some through fanaticism, and others
through vani^, which attends us even to the
grave ; others from a desperate resolutfon, either
to get rid of their misery, or cease to live : but
fanaticism and vanity forsake the criminal in sla-
very, in chains and fetters, in an iron cage, arid
despair seems rather the beginning than the end
of their misery. The mind^ by collecting itself
and uniting all its force, can, for a moment, re-
pel assailing grief; but its most vigorous efforts
are insufficient to resist perpetual wretchedness.

In all nations^ where death is used as a pimish-
ment, every example supposes a new crime com-
mitted ; whereas, in perpetual slavery, every cri-
minal affords a frequent and lasting example ; and
if it be necessary that men should often be witnes-
ses of the power of the laws^ criminals should
often be put to death : but this supposes a fire-

iXfi AN ESSAY ON

quency of crimes ; and from hence tliis punish*
mcnt will cease to have its effect, so that it must
be useful and useless at the same time.

I shall be told that perpetual slavery is as pain-
ful a punishment as death, and therefore as cru-
el. I answer, that if all the miserable moments
in the life of a slave were collected into one point,
it would be a more cruel punishment than any
other ; but these are scattered through his whole
life, whilst the pain of death exerts all its force
in a moment. There is also another advantage
in the punishment of slavery, which is, that
it is more terrible to the spectator than to
the sufferer himself; for the spectator considers
the sum of all his wretched moments whilst the
sufferer, by the misery of the present, is prevent-
ed from thinking of the future. All evils are in-
creased by the imagination, and the sufferer finds
resources and consolations of which the spectators
are ignorant, who judge by their own sensibility
of what passes in a mind by habit grown callous
to misfortune.

Let us, for a moment, attend to the reasoning
oEa robber or assassin, who is deterred from viola-
ting the laws by the gibbet or the wheel. I am sen^
aiblei that to develop tlie sentiments of one's own

^SMES AND PDKISlpiENTS. 1Q3

heart is an art which education only can teach ;
but althpugh a villain may not be able, to give a
clear accoudt of his principles, they nevertheless
influence his conduct. He reasons thus : ^ What

* are these laws that I am bound to respect, which

* make so great a difference between me and the
^ rich man ? He refuses me the farthing I ask of
^ him, aM excuses himself by bidding me have re-
^ course to labour, with which he is unacquainted.

Who made these laws ? The rich and the great,
' who liever deigned to visit the miserable hut of
' the poor, who have never seen him dividing a
^ piece of mouldy bread, amidst the cries of his
^famished children and the tears of his wife.
'Let us break those ties, fatal to the greatest
' part of mankind, and only useful to a few indo-
' lent tyrants. Let us attack injustice at its source..
^ I will return to my natural state of independence,

* I §hall live free and happy on the fruits of my
' courage and iiidustiy . A day of pain and re-
^ pentance may come, but it will be short ; and
' for an hour of grief I shall enjoy years of plea-
'sure and liberty. King of a small number as
' determined as myself, I will correct the mis-
' takes of fortune, and I shall see those tyrants
' grow pale and tremble at the sight of him,,
' whom, with insulting pride, they would not suf-
^ fcr to rank with their dogs and horses.'

104 AN ESSAY ON

Religion then presents itself to the mind of this
Iswiess villain, and, promising him almost a cer«
tainty of eternal happiness upon the easy terms
of repentance^ contributes much to lessen the
horror of the last scene of the tragedy.

But he who foresees that he must pass a great
number of years, even his whole life, ii/\>ain and
slavery, a slave to those laws by which he was
protected, in sight of his fellow-citizens, with
whom he lives in freedom and society, makes an
useful comparison between those evils, the tfn-
certainty of hb success, and the shortness of the
time in which he shall enjoy the fruits of his
transgression. The example of those wretches,
continually before his eyes, makes a much great-
er impression on him than a punisliment, which
instead of correcting, makes him more obdurate.

•

The punishment of death is pernicious to so-
ciety, from the example of barbarity it affords.
If the passions, or the necessity of war, have
taught men to shed the blood of their fellow crea-
tures, the laws; which are intended to moderate
the ferocity of mankind, should not increase it by
examples of barbarity, the more horrible as this
pumshment is usually attended with formal pa-
. geantry • Is it not absurd, that the laws, which

OmMES AND PUNISHMENTS. 105

detest and punish homicide, should, in order to
prevent murder, publicly commit murder them-
selves ? What are the true and most useful laws ?
Those compacts and conditions which all would
propose and observe in those moments when pri^
vate interest is silent, or combined with that of
the public. What are the natural sentiments of
every person concerning the punishment of death ?
We may read them in the contempt and indigna-
tion with which every one looks on the execution-
er, who is nevertheless an innocent executor of the
public will, a good citiz n, who contributes to the
advantage of society, the instrument of the gene-
ral security within, as good soldiers are without.
What the^ is the origin of this contradiction ?
Why is this sentiment of mankind indelible to the
scandal of reason? It is, that, in a secret corner,
of the mind, in which the original impressions of
nature are still preserved, men discover a senti-
ment which tells them, that their lives are not law-
fully in the power of any one, but of that necessity
only which with its iron sceptre rules the uni-
verse.

What must men think, when they see wise ma-
gistrates and grave ministers of justice, with in-
diiference and tranquillity, dragging a criminal to
death, and whilst a" wretch trembles with agony,

106 AN ESSAY ON

expecting the fatal stroke, the judge^ who has
condemned him, with the coldest insensibility,
and ptThaps with no small gratification from the
exertion of his authority^ quits his tribunal, to en-
joy the comforts and pleasures of life ? They will
say, ^ Ah! those cruel formalities of justice are
^ a cloak to tyranny, they are a secret language, a
^solemn veil, intended to conceal the sword by

* which we are sacrificed to the insatiable idol of

* despotism. Murder, which they would repre-

* sent to us an horrible crime, we see practised
•"by them without repugnance or remorse. Let

* us follow their example. A violent death ap-

* peared terrible in their descriptions, but we see
^ that it is the affair of a moment. It will be still

* less terrible to him who, not expecting it, es-
' capes almost all the pain,' Such is the fatal
though absurd reasonings of men who are disposed
to commit crimes, on whom the abuse of religi-
on has more influence than religion itself.

If it be objected, that almost all nations in all
ages have punished certain crimes with death, I
answer, that the force of these examples vanishes
when opposed to truth, against which prescrip-
tion is urged in vain. The history of mankind
is an immense &ea of errors, in which a few ob-
scure truths may here aiKl there be found.

CRIMES AND PUNISHMENTS. lOT

But human sacrifices have also been common
in almost all nations. That some societies only
'either few in number, or for a very short time,
abstained from the punishment of death, is r^.
ther favourable to my argument ; for such is the
&te of great truths, that their duration is only as
a flash of lightning in the long and dark night of
error. The happy time is not yet arrived, when
truth, as falsehood has been hitherto, sha)l be the
portion of the greatest number.

I am sensible that the voice of onc^ philosopher
is too weak to be heard amidst the clamours of a
multitude, blindly influenced by custom; but
there is a small number of sages scattered on the
face of the earth, who will echo to me from the
bottom of their hearts ; and if these truths should
happily force their way to the thrones of princes
be it known to them, that they come attended
with the secret wishes of all mankind ; and tell
the sovereign who deigns them a gracious recep-
tion, that his fame shall outshine the glory of
conquerors, and that equitable posterity will ex-
alt his peaceful trophies above those of a Titus, an
Antoninus, or a Trajan.

How happy were mankind if laws were now
to be first formed ! now that we see on the thrones

108 ' AK ES6AT ON

of Europe benevolent monarchs, friends to the
virtues of peace^ to the arts and sciences, fathers
of their people, though crowned, yet citizens ; the
increase of whose authority augments the happi#
ncss of their subjects, by destroying that inter*
mediate despotism which intercepts the prayers
of the people to the throne. If these humane
princes have suffered the old laws to subsist, it
is doubtless because the are deterred by the
numberless obstacles which oppose the subver*
sion of errors established by the sanction of ma*
ny ages; and therefore every wise citizen will
wish for the increase of their authority.

CRIMES AND P0MSHMENT6. t^

CHAP. XXIX.

Of Imprisonment

THAT a magistrate, the executor of the laws,
should have a power to imprison a citizen, to de-
prive the man he hates of his liberty, upon frivo-
lous pretences, and to leave his friend unpunished,
notwithstanding the strongest proofs of "his guilt,
is an error as common as it is contrary to the
end of society, which is personal security.

Imprisonment is a punishment which differs
from all others in this particular, that it necessa-
rily precedes conviction ; but this difference does
not destroy a circumstance which is essential and
common to it with all other punishments, viz.
that it should never be inflicted but when ordain-
ed by the law. The law should therefore deter-
mine the crime, the presumption, and the evi-
dence sufficient to subject the accused to impri-
sonment and examination. Public report, his
flight, his extrajudicial confession, that of an ac-
\:omplice, menaces, and his constant enmity with
the person injured, the circumstances of the
crime, and such other evidence, may be sufficient

tlO AN E88AY ON

to justify the imprisonment of a citizen. But the
nature of this evidence should be determined by
the laws, and not by the magistrates, whose de-
crees are always contrary to political liberty, when
they are not particular applications of a general
maxim of the public code. When punishments
become lc«>s severe, and prisons less horrible, when
compassion and humanity shall penetrate the iron
gates of dungeons, and direct the obdurate and in-
exorable ministers of justice, the laws may then be
satisfied with weaker evidence for imprisonment.

A person accused^ imprisoned, tried, and ac-
cjuittcd, ought not to be branded with any degree
of infiimy. Among the Romans we see that many
accused of very great crimes, and afterwards de-
clared innocent, were respected by the people, and
honoured with employments in the state. But
why is the fate of an innocent person so different
in this age ? It is because the present system of
penal laws presents to our minds an idea of power
rather than of justice : it is because the accused
and convicted are thrown indiscriminately into the
same prison? because imprisonment is rather a
punishment than a means of securing the person
of the accused ; and because the hiterior power,
which defends the laws, and the exterior, which
defends the throne and kingdom, are separate,

CKDiiES AND PUNISHftlENTS.

lit

when they should be united. If the first were
(under the common authority of the laws) com-

bined with the right of judging, but not however
immediately dependent on the magistrate, the
pomp that attends a military corps would take off
the infamy, which, like all popular opinions, is mone
attached to the manner and form than to the thing
itself, as may be seen in military imprisonment^
, which^ hi the common opinion, is not so disgrace-
ful as the civil. But the barbarity and ferocity
of our ancestors, the hunters of the north, still
subsist among the people in our customs and oul:
laws, which are always several ages behind the
actual refinements of a nation.

iBt AM ESSAY OX

CHAP. XXX.

Of Prosecution and Pnscription.

THE proofs of the crime being obtained, and
the certainty of it determined, it is necessary to
allow the criminal time and means for his justifica-
tion ; but a time so short as not to diminish that
promptitude of punishment, which^ as we have
shewn, is one of the most powerful means of pre-
venting crimes. A mistaken humanity may ob-
ject to the shortness of the time, but the force of
the objection will vanish if we consider that the
danger of the innocent increases with the defects
of the legislation.

The time for inquir)' and for justification should
be fixed by the laws, and not by the judge, who,
in that case, would become legislator. With re-
gard to atrocious crimes, which are long remem-
bered, when they are once proved, if the criminal
have fled, no time should be allowed ; but in less
considerable and more obscure crimes, a, time
should be fixed, after which the delinquent should
be no longer uncertain of his fate : for, in the lat-
ter case, the length of time, in which the crime is

CRIMES AND PUNISHMENTS. 113

almost forgotten, prevents the example of impu-
• nity , and allows the criminal to amend, and be«
come a better member of society.

General principles will here be sufficient^ it be-
ing impossible to fix precisely the limits of time
for any given legislation, or for any society in any
particular circumstance. I shall only add, that^
in a nation willing to prove the utility of moderate
punishment, laws which, according to the nature
of the crime, increase or diminish the time of in-
quiry and justification, considering the imprison-
ment or the voluntary exile of the criminal as a
part of the punishment, will form an easy division
of a small number of mild punishments for a
great number of crimes.

But it must be observed, the time for inquiry
and justification should not increase in direct pro-
portion to the atrociousness of crimes ; for the
probability of such crimes having been committed
is inversely as their atrociousness. Therefore
the time for inquiring ought, in some cases, to be
diminished, and that for justification increased, et
vice versa. This may aj^car to contradict what
I have said above, namely, that equal punishments
may be decreed by unequal crimes, by consider-
ing the time allowed the criminal or the prison as
a punishment.

114 AN ESSAY OK

In order to explain this idea, I shall divide^
crimes into two classes. The first comprehends
homicide, and all greater crimes ; the second crimes
of an inferior degree. This distinction is founded
in human nature The preservation of life is a
natural right ; the preservation of property is a
right of society. The motives that induce men to
shake off the natural sentiment of compassion,
which must be destroyed before great crimes can
be committed, are much less in number than those
by which, from the natural desire of being happy,
they are instigated to violate a right which is not
founded in the heart of m^n, but is the work of
society. The different degrees of probability in
these two classes^ require that they should be re-
gulated on different principles. In the greatest
crimes, as they are less frequent, and the proba-
bility of the innocence of the accused being greater,
the time allowed him for his justification should
be greater, and the time of inquiry less. For^ by
hastening the definitive sentence, the Battering
hopes of impunity are destroyed, which are more
dangerous as the crime is more atrocious. On
the contrary, in crimes of less importance, the-
probability of the innocence being less, the time
of inquiry should be greater, and that of justifica-
tion less, as impunity is not so dangerous.

But this division of crimes into two classes

CRIMES AND PUNiraHENTS.

115

should not be admitted, if the consequences of
impunity were in proportion to the probability of
the crime. It should be considered, that a person
accused, whose guilt or innocence is not determin-
ed for want of proofs, may be again imprisoned
for 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 li-
berty of the subject, without favouring one at the
expense of the other ; which may easily happen,
since both these blessings, the unalienable and
e<{ual patrimony •f every citizen, are liable to be
invaded, the one by open or (Usguised despottsra^
^nd the other by tumultuous and popular anarchy.

l^ AN ESSAY ON'

CHAP. XXXI.

Of Crimes of difficult Proof

\VITH the forgoing principles in view, it will
appear s^stonishing^ that reason hardly ever pre-
sided at the formation of the laws of nations ;
that the weakest and most equivocal evidence,
and even conjectures, have been thouglit suf-
jicient proof for crimes the most atrocious (and
therefor^ most improbable J the most obscure and
chimerical ; as if it were the interest of the laws
tod the judge not to enqu'u-e into the truth, but
to prove the crime ; s^ if there were not a grea-
ter risk of condemning an innocent person, when
the probability of his guilt is less.

The generality of men want that vigour of niind
and resolution- which are as necessary for great
crimes as for great virtues, and which at the same
time produce both the one and the other in those
nations which are supported by the activity of
their government, and 4 passion for the public
good. For in those which subsist by their great**
Iness or power, or by the goodness of their laws,
the passions, being in a weaker degree; s^em cdr,

CRIMES AND PUNISHMENTS. 117

eulated rather to -maintain than to improve the
form of government, l^his naturally leads us to
an important tx)nclusion, viz. that great crimes
do not always produce the>destruction of a nation.

There are some crimes which^ though frequent
in society, are of difficult proofs a circumstance
admitted as equal to the probability of the inno-
cence of the accused. But as the frequency of
these crimes is not owing to their impunity so
much as to other causes, the danger of their pass-
ing unpunished is of less importance, and -there-
fore the time of examination and prescription may
be equally diminished. These principles are dif-
ferent from those commonly received ; for St is
in crimes which are proved with the greatest dif-
ficulty, such as adultery and sodomy, that pre-
sumptions, half proofs, &c. are admitted ; as if
^ man could be half innocent, and half guilty,
that is^ half punishable and half absolvable. It is
in these cases that torture should exercise its cru-
el power on the person of the accused, the wit-
nesses, and even hb whole family, as, with un-
feeling indifference, some civilians have taught^
who pretend to dictate laws to nations.

Adultery is a crime which, politically consider-
cd, owe^ its e:wtence to two causes, viz. jpemi-

1X8 AN ESSAY ON

cious lawsy and the powerful attraction between
the bcxes. This attraction is similar in many cir»
cumstances to gravity, the spring of motion in the
universe. Like this, it is diminished by distance;
one regulates the motions of the body, the other
of the soul. But they differ in one respect ; the
force of gravity decreases in proportion to the
obstacles that oppose it, the other gathers strength
and vigour as the obstacles increase.

If I were speaking to nations guided only by
the laws of nature, I would tell them, that there
is a considerable difference between adultery and
all other crimes. Adultery proceeds from an
abuse of that necessity which is constant and uni-
versal in human nature ; a necessity anterior to
the formation of society^ and indeed the foun-
.Uer of society itself; whereas all other crimes
tend to the destruction of society, and arise from
momentary passions, and not from a natural ne*
cessity. It is the opinion of those who have stu-
died history and mankind, that this necessity is
constantly in the same degree in the same cli-
mate. If this be true, useless. Or rather perni*
cious, must all laws and customs be which tend
to diminish the sum total of the effects of this
passion. Such laws would only burden one part
of Mciety with th^ additional necessitieB of the

. CBIMES AND PUNISHMENTS. 119

Other; but, on the contrary, wise ^e the laws
which^ following the natural course of the river,
divide the stream iiito a number of eqtfal branch*
es, preventing thus both sterility and inundation.

Conjugal fidelity is always greater in propor-
tion as marriages are more nun}erous and less
difficult. But, when the interest or pride of fa-
milies, or paternal authority, not the inclination
of the parties, unite the sexes, gallantry soon
breaks the slender ties, in spite of common mora-
lists, who exclaim against the effect, whilst they
pardon the cause. But these reflections are Use-
less to those who, living in the true religion, act
from sublimer motives, which correct the eternal
laws of nature.

' The act of adultery is a crime so instantane-
ouSf so mysterious, and so concealed by the veil
which the laws themselves have woven, a veil ne-
cessary indeed, but so transparent as to heighten
rather than conceal the charms of the object, the
opportunities are so frequent, and the danger of
discovery so easily avoided, that it were much
easier for the laws to prevent this crime, than to
punish it when committed.

To every crime which, from its nature, must
frequently remain unpunished, the punishment is

120 AN ESSAY ON

an incentive. « Such is the > ature of the human
mind, that difficulties, if not unsurmountabU , i«or
too great f6r our natural indolence, embellish the
object, and spur us on to the pursuit. They are
so many barriers that confine the imagination to
the object, an^ oblige us to conisider it in every
point of view. Jn this agitation^ the mind natu-
rally inclines and fixes itself to the most agreea-
ble part, studiously avoiding every idea that

might create disgust.

The crime of sodomy, so severely punished by
the Mhvs, and for the proof of which are employed
tortures, which often triumph over innocence it-
self, has its source much less in the passions of
man in a free and independent state than in so-
ciety and a slave. It is much less the effect of a
satiety in pleasures, than of that education which
in order to make men useful to others, bt*gins by *
making ihem useless to themselves. In those
public seminaries, where ardent youth are care-
fully excluded from all commerce with the other
sex, as the vigour of nature blooms, it is consu-
med in a manner not only useless to mankuid,
but which accelerates the approach of old age*

The murder of bastard children is, in like man-
ner, the effect of a cruel dilemma^ in which a wo«

CRIMES ANl) PtJNI3HMfeNTS. Hi

man finds herself, who has been seduced throujgh
weakness, or overcome by force. The altema-
tive is, either her own infamy, or the death of a
being who is incapable of feeling the loss of life*
How can she avoid preferring the last to the ine-
vitable misery of herself and her unhappy infant f
The best method of preventing this crime would
be effectually to protect the weak woman from
that tyranny which exaggerates all vices that can-
not be concealed under the cloak of virtue.

I do not pretend to lessen that just abhorrence
which these crimes deserve, but to discover the
sources from whence they spring ; and I think I
may draw the following conclusion : That the
punishment of a crime cannot be just , (that is ne-
cessary.) if the laws have not endeavoured to
prevent that crime by the best means which times
and circumstances would allow.

lat AN ESSAY ON

CHAP. XXXII.

OJ Suicide.

SUICIDE is a crime which seems not to ad*
mit of punishment, properly speaking ; for it can-
not be inflicted but on the innocent, or upon an
insensible dead body. In the first case, it is un-
just and tyrannical, for political liberty supposes
all punishments entirely personal ; in the second,
it has the same e£fect, by way of example, as the
scourging a statue. Mankind love life too well ;
the objects that surround them, the seducing
phantom of pleasure, and hope, that sweetest er-
ror of mortals, which makes men swallow such
large draughts of evil, mingled with a very few
drops of good, allure them too strongly, to ap-
prehend that this crime will ever be common
from its unavoidable impunity. The laws are
obeyed through fear of punishment, but death
destroys all sensibility. What motive then can
restrain the desperate hand of suicide ?

He who kills himself does a less injury to so-
ciety than he who quits his country for ever ; for
the other leaves his property behind him, but this

CRIMES AND PUNISHMENTS. 123

carries with him at least a part of his substance.
Besides, as the strength of society consists in the
number of citizens, he who quits one nation to re-
side in another, becomes a double loss. This then
is the question : whether it be advantageous to so- ■
ciety that its members should enjoy the unlunited
privilege of migration ?

Every law that is not armed with force, or
which, from circumstances, must be ineffectual,
should not be promulgated. Opinion, which
reigns over the minds of men, obeys the slow and
indirect impressions of the legislator, but resists
them when violently and directly applied ; and
useless laws communicate their insignificance to
the most salutary, which are regarded more as
obstacles to be surmounted than as safeguards of
the public good. But further, our preceptions be-
ing limited, by enforcing the observance of laws
which are evidently useless, we destroy the in-
fluence of the most salutary.

From this principle a wise dispenser of public
happiness may draw some useful consequences,
the explanation of which would carry me too far
from my subject, which is to prove the inutility
of making the nation a prison. Such a law is vain ;
because, unless inaccessible rocks or impassible

••i

ft.

124 AN ESSAY ON

$cas divide the country from all others, how will
it be possible to secure every point of the circum-
ference, or how will you guard the guards them-
selves ? Besides, this crime once committed can-
jiot be punished ; and to punish it before hand
would be to punish the intention and not the ac-
tion, the will, which is entirely out of the power
of human laws. To punish the absent by confis-
catini; his eiFects, besides the facility of collusion,
which would inevitably be the case, and which^
without tyranny, could not be prevented, would
put a stop to all commerce with other nations.
To punish the criminal when he returns, would
be to prevent him from repairing the evil he had
already done to society, by making his absence
perpetual. Besides, any prohibition would in-
crease the desire of removing, and would infallibly
prevent strangers from settling in the country.

What must we think of a government which
has no means but fear to keep its subjects in their
own country, to which, by the first impressions of
their infancy, they are so strongly attached. The
most certain method of keeping men at home is to
iHiike them happy ; and it is the interest of every
state to turn the balance, not only of commerce,
but of felicity, in favour of its subjects. The
pleasures of luxury are not the principle sources

eilLMES AND PmaSHMEN TS. 125

of this happiness, though, by preventing the too
great accumulation of wealth in a few hands, they
become a necessary remedy against the too great
inequality of individuals, which always increases
with the progress of society. /

When the populousness of a country does not
increase in proportion to its extent, luxury fa-
« yours despotism ? for where men are most dis-
persed there is least industry, and where there is
least industry the dependence of the poor upon
the luxury of the rich is greatest, and the union
of the oppressed against the oppressors is least
to be feared. In such circumstances, rich and
powerful men more easily command distinction,
respect, and service, by which they are raised to
a greater height above the poor ; for men are
more independent the less they are observed, and
are least observed when most numerous. On the
contrary, when the number of people is too great
in proportion to the extent of a country, luxury
is a check to despotism ; because it is a spur to
industry, and because the labour of the poor af-
fords so many pleasures to the rich, that they dis-
regard the luxury of ostentation, which would re-
mind the people of their dependence. Hence we
see, that, in vast and depopulated states, the luxu-
ry of ostentation prevails over that of convenience;

*r^

\ZCi AN ESSAY ON

but in countries more populous, the luxury of
convenience tends constantly to diminish the lux-
ury of ostentation.

The pleasures of luxury have this inconveni-
ence, that though they employ a great number of
hands, yet they are only enjoyed by a few, whilst
tlie rest who do not partake of them, feel the
want more sensibly on comparing their state with
that of others. Security and liberty, restrained
by the laws, are the basis of happiness, and when
attended by these, the pleasures of luxury favour
population, without which they become the in-
struments of tyranny. As the most noble arid
generous animals fly to solitude and inaccessible
deserts, and abandon the fertile plains to man
their greatest enemy, so men reject pleasure it-
self when offered by the hand of tyranny.

But, to return: — If it be demonstrated that
the laws which imprison men in their own coun-
try are vain and unjust, it will be equally true of
those which punish suicide ; for that can only be
punished after death, which is in the power of
(jod alone ; but it is no crime with regard to man,
because the punishment falls on an innocent fami-
ly. If it be objected, that the consideration of
such a punishment may prevent the crime; I an-

CRIMES AND PUNISHMENTS. U7

swer, that he who can calmly renounce the plea-
sure of existence; who is so weary of life as jto
brave the idea of eternal misery, will never be
influenced by the more distant and less powerful
considerations of family and children.

CHAP. XXXIII.

Of Smuggling.

SMUGGLING is a real offence against the
sovereign and the nation ; but the punishment
should not brand the offender with infamy, be-
cause this crime is not infamous in the public
opinion. By inflicting infamous punishments for
crimes that are not reputed so, we destroy that
idea where it may be useful. If the same punish-
ment be decreed for killing a pheasant as for kil-
ling a man, or for forgery, all difference between
those crimes will shortly vanish. It is thus that
moral sentiments are distroyed in the heart of
man ; sentiments, the work of many ages and of
much bloodshed; sentiments that are so slowly
and with so much difficulty produced, and for the
establishment of which such sublime motives
' and such an apparatus of ceremonies were
thought necessary.

12S AN ES6AY ON

This crime is owing to the laws themselves;
for the higher the duties the greater is the advan«
tage, and consequently the temptation; which
temptation is increased by the facility of perpetra-
tion, when the circumference that is guarded is of
great extent, and the merchandise prohibited is
small in bulk. The seizure and loss of the goods
attempted to be smuggled, together with those
that are found along with them, is just! but it-
would be better to lessen the duty, because men
risk only in proportion to the advantage expected.

This crime be^ng a theft of what belongs to the

■

prince, arid consequently to the nation, why is it
not attended with infamy ? I answer, that crimes
which men consider as productive of no bad con-
sequences to themselves, do not interest them suf-
ficiently to excite their indignation. The generali-
ty of mankind, upon whom remote consequences
make no impression, do not see the evil that may
result from the practice of smuggling, especially
if they reap from it any present advantage. They
only perceive, the loss sustained by the prince*
They are net then interested in refusing their es-
teem to the smuggler, as to one who has commit-
ted a theft or a forgery, or other crimes, by which
they themselves may suffer, from this evident
principle, that a sensible being only interests him-
self in those evils with which he is acquainted*

CRIMES AND PUNISHMENTS.

129

Shall this crime then, committed by one who
has nothing to lose, go unpunished ? No. There
are certain species of smuggling, which so parti-
cularly affect the revenue, a part of government
so essential, and managed with so much dii&culty,
that they deserve imprisonment^ or even slavery ;
but yet of such a nature as to be proportioned to
the crime. For example, it would be highly unjust,
that a smuggler of tobacco should suffer the same
punishment with a robber or assassin ; but it would
. be most conformable to the nature of the offence,
that the produce of his labour should be applied to
the use of the crown, which he intended to defraud.

130 AN ESSAY ON

CHAP. XXXIV.

0;f Bankrupts.

THE necessity of good faith in contracts, and
the support of commerce, oblige the legislator to
secure for the creditors the persons of bankrupts.
It is, however, necessary to distinguish between
the fraudulent and the honest bankrupt. The
fraudulent bankrupt should be punished in the
same manner with him who adulterates the coin ;
for, to falsify a piece of coin, which is a pledge
of the mutual obligations between citizens, is not
a greater crime than to violate the obligations
themselves. But the bankrupt who, after a strict
examination, has proved before proper judges,
that either the fraud or losses of others, or mis-
fortunes unavoidable by human prudence, have
stripped him of his substance, upon what barba-
rous pretence is he thrown into prison, and thus
deprived of the only remaining good, the melan-
choly enjoyment of mere liberty ? Why is he
ranked with criminals, and in despair compelled
to repent of his honesty ? Conscious of his inno-
cence, he lived easy and happy under the protec-
tion of those laws which, it is true, he violated,

CHIMES AND PUNISHMENTS. 151

tut not intentionally ; laws dictated by the ava-
rice of the rich, and accepted by the poor, sedu-
ced by that universal and flattering hope, which
makes men believe that all unlucky accidents are
the lot of others, and the most fortunate only
their share. Mankind, when influenced by ' the
first impressions^ love cruel laws, although, be ing
subject to them themselves, it is the interest of
every person that they should be as mild as possi-
blt' ; but the fear of being injured is always more
prevalent than the intention of injuring others.

But, to return to the honest bankrupt : let liis
debt^ if you will, not be considered as cancelled,
till the payment of the whole ; let him be refused
the liberty of leaving the country without leave of
his creditors, or of carrying into another nation
that industry which^ under a penalty, he should
be obliged to employ for their benefit ; but what
pretence can justify the depriving an innocent
though unfortunate man of his liberty, without
the least utility to his creditors ?

But, say -they, the hardships of confinement
will induce him to discover his fraudulent trans-
actions ; an event that can hardly be supposed,
after a rigorous examination of his conduct and
affairs. But if they are not discovered, he will

lai AN ESSAY ON

escape unpunished. It is, I think, a maxim of
govc rnment, thai the importance of the political
inconvc:niencies arising from the impunity of a
cr in , are directly as the injury to the public, and
inversely as the difficulty of proof.

It will be necessary to distinguish fr^ud, attend-^
ed with aggravating circumstances, from simple
fraud, and that from perfect innocence. For the
first, let there be ordained the same punishment
as for forgery ; for the second a less punishment|
but with the loss of liberty ; and if perfectly ho-
nest, let the bankrupt himself choose the method
of re-establishing himself, and of satisfying his
creditors ;xor, if he should appear not to have been
strictly honesty let that be determined by his cre-
ditors * but these distinctions should be fixed by
the laws, which alone are impartial, and not by
the arbitrary and dangerous prudence of judges.*

With what ease might a sagacious legislator

* It may be alledged that the interest of commerce and property
•hould he secured ; but commerce and property are not the end oi
the social compact, but the means of obtaining that end ; and to ex-
pose all the membei's of society to cruel laws, to preserve them from
evils necessarily occasioned by the infinite combinations which result
from the actual state of political societies, would be to make the end
subservient to the means, a paralogism in all sciences, and particu-
larly in politics. In the former editions of this work I myself fell into
this error, when I said that the honest bankrupt should be kept in
custody, as a pledge for his debts, or employed as a slave to work for
his creditors. I am ashame^t of having adopted so cruel an opinion.
I have been nccused ofimpietv ; I did not dJesen'c it. I have becnac-
c\ised of sedition ; I deser>'ed it as little. But I insulted all the rights
of humanity, and was never reproached.

, CRIMES AND PUNISHMENTS. 133

prevent the greatest part of fraudulent bankrupt-
ciesi, and remedy the misfortunes that befal the
honest and industrious ! A public register of all
contracts^ with the liberty of consulting it allow-
ed to every citizen : a public fund, formed by a
contribution of the opulent merchants, for the
timely, assistance of unfortunate industry, were es-
tablishments that could produce no reat inconveni-
encies, and many advantages. But^ unhappily, the
most simple^ the easiest, yet the wisest laws, that
wait only for the nod of the legislator, to diffuse
through nations wealth, power, and felicity, laws
which would be regarded by future generations
with eternal gratitude, are either unknown or re-
jected* A restless and trifling spirit, the timid
prudence of the present moment, a distrust and
aversion to the most useful novelties, possess the
minds of those who are empowered to regulate
the actions of mankind.

134 AN fiSSAY ON

CHAP. XXXV.

Of Sanctuaries.

ARE sanctuaries just? Is a convention between
nations mutually to give up their criminals useful?

In the whole extent of a political state there
should be no place independent of the laws. Their
power should follow every subject, as the shadow
follows the body. Sanctuaries and impunity dif-
fer only in degree, and as the effect of punish-
ments depends more on their certainty than their
greatness, men are more strongly invited to crimes
by sanctuaries than they are deterred by punish-
ment. To increase the number of sanctuaries is
to erect so many litde sovereignties ; for where
the laws have no power, new bodies will be form-
ed in opposition to the public good, and a spirit
established contrary to that of the state. Histo-
ry informs us, that from the use of sanctuaries
have arisen the greatest revolutions in kingdoms
and in opinions.

Some have pretended, that in whatever coun-
try a crime, that is, an action contrary to the laws

CRTMES AND I^UNISHMENTS. 133

'6f society, be committed^ the criminal may be
justly punished for it in any other ; as if the cha-
racter of subject were indelible, or synonymous
with or worse than that of slave ; as if a man could
live in one country and be subject to the laws of
another, or be accountable for his actions to two
sovereigns, or two codes of laws often contradic-
tory. There are also those who think, that an act
of cruelty committed, for example,at Constantino-
ple may be punished at Paris, for this abstracted
reason, that he who offends humanity should have
enemies in all mankind, and be the object of uni-
versal execration ; as if judges were to be the
knights-errant of human nature in general, rather
than guardians of particular conventions between
men. The place of punishment can certainly be
no other than that where the crime was commit-
ted ; for the necessity of punishing an individu-
al for the general good, subsists there, and there
only. A villain, if he has not broke through
the conventions of a society, of which, by my
supposition, he was not a member, may be fear-
ed, and by force banished and excluded from that
society, but ought not to be formally punished by
the laws, which were only intended to maintain
the social compact, and not to punish the intrinsic
malignity of actions.

Whether it be useful that nations should mu-

136 ^AN ESSAY ON

tually deliver up their criminals ? Although the
certainty of there being no part of the earth
where crimes are not punished, may be a means
of preventing them, I shall not pretend to deter-
mine this question, until laws more conformable
to the necessities^ and- rights of humanity, and un«
til milder punishments, and the abolition of the
arbitrary power of opinion, shall afford security
to virtue and innocence when oppressed ; and
until tyranny shall be confined to the plains of
Asia, and Europe acknowledge the universal em-
pire of reason by which the interests of sove-
reigns and subjects are best united.

CHAP. XXXVI.

OfUewardsfor apprehending or killing Criminals.

LET us now inquire, whether it be advanta-
geous to society, to set a price on the head of a '
criminal, and so to make of every citizen an execu-
tioner? If the oflFender hath taken refuge in another
state, the sovereign encourages his subjects to com-
mit a crime, and to expose themselves to a just
punishment ; he insults that nation, and authorises
the subjects to commit on their neighboiirs similar
usurpations. If the criminal still remain in his own

(!:IRIMES Aim PUNlSHMEJfTS. 13^

country^ to set a price upon his head is the strong*
est proof of the weakness of the government. He
who has strength to defend himself will not pur-
chase the assistance of another. Besides, such an
edict confounds all the ideas of virtue and morali-
ty, already too wavering in the mind of man. At
one time treachery is punished by the laws, at
another encouraged. With one hand the legislator
strenj^thens the ties of kindred and friendbhip, and
with the other rewards the violation of both. Al-
ways in contradiction with himself, now he invites
the suspecting minds of men to mutual confidence,
and now he plants distrust ip every heart. To
prevent one crime he gives birth to a thousand.
Such are the expedients of weak nations, whose
laws are like temporary repairs to a tottering fa-
bric. On the contrary, as a nation becoipes more
enlightened, honesty and mutual confidence be-
come more necessary, and are daily tending to
unite with sound policy. Artifice, cabal, and ob-
scure and indirect actions are more easily disco-
vered, and the interest of the whole is better secu-
red against the passions of the individual. '

Even the times of ignorance, when private vir*
tue was encouraged by public morality, may afibrd
instruction and example tq more enlightened ages.
But laws which reward treason excite clandestine

138 AN ESSAY ON

war and mutual distrust, and oppose that necessa-
ry union of morality and policy which is the
foundation of happiness and universal peace.

CHAP. XXXVII.

Of JllUmpts^ Acomplices, and Fardon.

THE laws do not punish the intention ; never-
theless, an attempt, which manifests the intention of
committingacrime, deserves a punishment, though
less, perhaps, than if the crime were actually per-
petrated. The importance of preventing even at-
tempts to commit a crime sufficiently authorises a
punishment ; but, as there may be an interval of
time between the attempt and the execution, it is
proper to reserve the greater punishment for the
actual commission, that even after the attempt
there may be a motive for desisting.

In like manner, with regard to the accomplices,
they ought not to suffer so severe a punishment
as the immediate perpetrator of the crime : but
this for a different reason. When a number of
men unite, and run a common risk, the greater the
danger, the more they endeavour to distribute it
equally. .Now, if the principals be punished more

CRIMES AND PUNISHMENTS. 339

, everely than the accessaries, it will prevent the
danger from being equally divided, and will in.
crease the difficulty of finding a person to execute
the crime, as his danger is greater by the difference
of the punishment. There can be but one except-
tion to this rule, and that is, when the principal
receives a reward from the accomplices. In that
case, as the difference of the danger is compen-
sated, the punishment should be equal. These
reflections may appear too refined to those who
do not consider, that it is of great importance
that the laws should leave the associates as few
means as possible of agreeing among themselves.

In some tribunals a pardon is offered to an ac-
complice in a great crime, if he discover his as-
sociates. This expedient has its •advantages and
disadvantages. The disadvantages are, that the
law authorises treachery, which is detested even
by the villains themselves, and' introduces primes
of cowardice, which aie much more pernicious to
a nation than crimes of courage. Courage is not
common, and only wants a benevolent power to
direct it to the public good. Cowardice, on the
contrary, is a frequent, self-interested, and conta-
gious evil, which can never be improved into a
virtue. Besides, the tribunal which has recourse
to this method, betrays its fallibility, and the laws

140 AN KSSAY ON

tlieir weakness, by imploring the assistance of
those by whom they are violated.

The advantages arc, that it prevents great
crimes, the effects of which being public, and the
perpetrators concealed, terrify the people. It also
contributes to prove, that he who violates the
laws, which are public conventions, will also Vio-
late private compacts. It appears to me that a
general law, promising a reward to every accom-
plice who discovers his associates, would be bet-
ter than a special declaration in every particular
.case ; because it would prevent the union of those
' villains, as it would inspire a mutual distrust, and
each would be afraid of exposing himself alone to
danger. The accomplice, however, should be

pardoned, on condition of transportation.

But it is in vain that I torment myself with endea-
vouring to extinguish the remorse I feel in at-
tempting to induce the sacred laws, the monu-
ment of public confidence, the foundation of hu-
man morality, to authorise dissimulation and per-
fidy. But what an example does it offer to a n.a«
tion to see the interpreters of the laws break their
promise of pardon, and on the strength of learned
subtleties, and to the scandal of public faith, drag
him to punishment who hath accepted of their in-
vitatio- ! Such examples are not uncommon,
And this is the reason that political society is re*

CRIMES AND PUNISHMENTS. 141

garded as a complex machine, the springs of
which are moved at pleasure by the most dexte-
rous or most powerful.

CHAP. XXXVIII.

Of suggestive Interrogations.

•THE laws forbid suggestive interrogations;
that is, according to the civilians, questions which,

•

with regard jto the circumstances of the crime, are
special when they should be general; or, in other
words, those questions which, having an imme-
diate reference to the crime, suggests to the cri-
minal an immediate answer. Interrogations, ac-
cording to the law, ought to lead to the fact in-
directly and obliquely, but never directly or im-
mediately. The intent of this injunction is, either
that they should not suggest ^o the accused an
immediate answer tha% might acquit him, or that
thev think it contrarv to nature that a man should
accuse himself. But whatever be the motive, the
laws have fallen into a palpable contradiction, in
condemning suggestive interrogations, whilst they
authorise torture. Can there be an interrogation
more suggestive than pain ? Torture will suggt^st
to a robust villain an obstinate silence, that he

142 AN ESSAY ON

may exchange a greater punishment for a less ;
and to a feeble man confession, to relieve him
from the present pain^ which affects him more
than the apprehension of the future. If a special
interrogation be contrary to the right of nature,
as it obliges a man to accuse himself, torture will
certainly do it more effectually. But men are in-
fluenced more by the names than the nature of
things.

He who obstinately refuses to answer the inter-
rogatories deserves a punishment^ which should,
be fixed by the laws, and that of the severest
kind ; the criminals should not, by their silence^
avade the example which they owe the public.
But this punishment . is not necessary when the
guilt of the criminal is indisputable ; because in.
that case interrogation is useless, as is likewise his
confession, when there are, without it, proofs suf-
ficient. This last case is most common, for expe«
rience shews» that in the greatest number of cri-
minal prosecutions the culprit pleads not guilty.

CRIMES AND PUNISHMENTS. , 143

CHAP. XXXIX.

Of a particular Kind of Crimes.

THE reader will perceive that I have omitted
speaking of a certain class of crimes which has
covered Europe with blood, and raised up those
horrid piles, from whence, amidst clouds of whirl-
ing smoke, the groans of human victims, the
crackling of their bones, and the frying of their
still panting bowels, were a pleasing spectacle and
agreeable harmony to the fanatic multitude. But
men of understanding will perceive, that the age
and country in which I live, will not permit me to
inquire into the nature of this crime. It were
too tedious and foreign to my subject to prove the
necessity of a perfect uniformity of opinions in a
state, contrarj^ to the examples of many nations ;
to prove that opinions, which differ from one
another only in some subtile and obscure distinc
tions, beyond the reach of human capacity, may
nevertheless disturb the public tranquillity, unless
one only religion be established by authority;
and that some opinions, by being contrasted and
opposed to each other, in their collision strike
out the truth ; whilst others, feeble in themselves,
recjuire the support of power and authority. It

144 AN ESSAY ON

would, I say, carry me too far, where I to prove,
that, how odious soever is the empire of force
over the opinions of mankind, from whom it on-
ly obtains dissimulation followed by contempt,
and although it may seem .contrary to the spirit
of humanity and brotherly love, commanded us
by reason, and authority, which wc more repect,
it is nevertheless necessary and indispensable.
We are to believe, that all these paradoxes are
solved beyond a doubt, and are conformable to
the true interest of mankind, if practised by a
lawful authority. I write only of crimes which
violate the laws of nature and the social contract,
and not of sins^ even the temporal punishments
of which must be determined from other princi-
ples than those of limited human philosophy.

CBIICBS AND PUNISHMENTS. 145

CHAP. XLt

Offeilse Ideas of Utility.

A PRINCIPAL source of errors and injust**
lice are false ideas of utility. For example * thai:
legislator has false ideas of utility who considers
particular more than general conveniencies, who
l^ad rather command the sentiments of mankind
than excite them, and dares say to reason, * Be
thou a slave;' who would sacrifice a thousand
real advantages to the fear of an imaginary or tri-
fling inconvenience i who would deprive men of
the use of fire for fear of their being burnt, and
of water for fear of their being drowned ; and
who knows of no means of preventing evil but b^
destroying it^

The laws of this nature are those which forbid
to wear arms, disarming those only who are not
disposed to commit the crime which the laws
jnean to prevent. Can it be supposed, that those
who have the courage to violate the most sacred
laws of humanity, and the most important of the
code, will respect the lesflronsiderable and arbi*.
trary injunctions, the violation of which is so ea-
jBV, and of so little comparative importance ? Does

146 AN ESSAY ON

not the execution of this law deprive the subject
of that perbonal liberty, so dear to mankind and
to the wise legislator ? and does it not subject
the innocent to all the disagreeable circumstan*
ces that should only fallen the guilty? It cer-
tainly makes the situation of the assaulted worse,
and of the assailants better, and rather encoura-
ges than prevents murder, as it requires less cqu-
rage to attack unarmed than armed persons*

It is a false idea of utility that would give to a
multitude of sensible beings that symmetry and
order whicli inanimate matter is alone capable of
receiving ; to neglect, the present, which are the
only motives that act with force and constancy on
the multitude, for the more distant, whose im-
pre ssions are weak and transitory, unless increas-
ed by that strength of imagination so very uncom*.
mon among mankind. Finally, that is a false
idea of utility which, sacrificing things to names,
separates the public good from that of individuals.

There is this difference between a state of so*
ciety and a state of nature, that a savage does no
more mischief to another than is necessary to pro-
cure some benefit to^JHpiself : but a man in society
is sometimis tempted, from a fauk in the laws,
to injure another without any prospect of advan»

CRlMfiS AND PtJNISHMENTS. I4f

tage. The tyrant inspires his vassals with fear
and servility, which rebound upon him with dou-
ble force, and are the cause of his torment* Fear^
the more private and domestic it is, the less dan-
gerous is it to him who makes it the instrument
of his happiness ; but the more it is public, and
the greater number of people it affects, the greater
is the probability that some mad, desperate^ or
designing person will seduce others to his party
by flattering expectations ; and this will be the
more eadly accomplished as the danger of the
enterprise will be divided amongst a greater num-
ber, because the value the unhappy set upon their
existence is less, as their misery is greater.

148 AN ESSAY ON

CHAP. XLI.

Of the Means of preventing Crimes.

j * IT is better to prevent crimes than to punish
them. This is the fundamental principle of good
legislation, which is the art of conducting men to
the maximum of happiness, and to the minimum,
of misery, if we may apply this mathematical ex-
pression to the good and evil of life. But the
means hitherto employed for that purpose are ge«
nerally inadequate, or contrary to the end propo-
sed. It is impossible to reduce the tumultuous
activity of mankind to absolute regularity ; for,
amidst the various and opposite attrat:tions of
pleasure and pain, hunian laws are not suiEcient

-entirely to prevent disorders in society. Such^
however is the chimera of weak men, when in-
vested with authority. To prohiUt a number of
indifferent actions is not to prevent the crimes
which they may produce, hut to create new ones,
it is to change at will the ideas of virtue and
vice, which, at other times, we are told, are eter-
nal and immutable. To what a situation should we
be reduced if every thing were to be forbidden
that mighc possibly lead to a crime ? We must be

GMMES AND PUNISHMENTS. 14$

deprived of the use of our senses : for one motive
that induces a man to commit a real crime, there
are a thousand which excite him to those indif-
ferent actions which arc called crimes by bad
laws. If then the probability that a crime will
be committed be in proportion to the number of
motives, to extend the sphere of crimes will be to
increase that probability. The generality of laws
are only exclusive privileges, the tribute of all to
the advantages of a few.

Would you prevent crimes ? Let the laws be
clear and simple, let the entire force of the nation
be united in their defence, let them be intended
rather to favour every individual than any parti-
cular classes of men, let the laws be feared, and '
the laws only. The fear of the laws is saluntary,
but the fear of men is a fruitful and fatal source -
of crimes. Men enslaved are more voluptuous,
more debauched, and more cruel than those who
are in a state of freedom. These study the scien-
ces, the interest of nations, have great objects be-
fore their eyes, and imitate them ; but those,
whose views are confined to the present moment,
endeavour, amidst the distftiction of riot and de-
bauchery, to forget their situation ; accustomed
to the uncertainty of all events, for the laws de-
termine none, the consequences of their crimes

f
t

150 AN ESSAY ON

become problematical, which gives an additional
force to the strength of their passions.

In a nation indolent from the nature of the cli-
mate, the uncertainty of the laws confirms and
increases men's indolence and stupidity. In a'
voluptuous but active nation, this uncertainty oc-
casions a multiplicity of cabals and intrigues^
which spread' distrust and diffidence through the
hearts of all, and dissimulation and treachery are
the foundation of their prudence. In a brave and
powerful nation, this uncertainty of the laws is at
last destroyed, after many oscillations from liber-
ty to slavery, and from slavery to liberty again.

CBIACES AND PUNISHMENTS, 151

CHAP, XLIL

Of the Scienees,

WOULD you prevent crimes ? Let liberty be |
attended with knowledge. As knowledge ex-
tendsy the disadvantages which attend it diminish

•

and the advantages increase. A daring impostor,
who is always a man of some genius, is adored
by tike ignorant populace, and despised by men of
understanding. iCnowledge facilitates the com-
parison of objects, by shewing them in difFt-rent
points of view. When the clouds of ignorance
are dispelled by the radiance of knowledge, au-
thority trembles, but the force of the laws remains
immoveable. Men of enlightened understanding
must necessaf ily approve those useful conventions
which are the foundation of public safety ; they
pompare with the highest satisfaction, the incon-
siderable portion of liberty of which they are de»
prived with the sum total sacrificed by others for
their security; observing that they have only
given up the pernicious liberty of injuring their
fellow-creatures, they bless the throne^ and the
laws upon which it is established.

It is false that the sciences have always been

152 lis ESSAY ON

prejudicial to mankind. When they ware so, the
evil was inevitable. The multiplication of the hu-
man species on the face of the earth introduced
war, the rudiments of arts, and the first laws,
which were temporary compacts^ arising firom
necessity, and perishing with it. This was the
first philosophy, and its few elements were just,
as indolence and want of sagacity in the early in-
habitants of the world preserved them from error.

But necessities increasing with the number of
mankind, stronger and more lasting impresiions
were necessary to prevent their frequent re-
lapses into a state of barbarity, which became
every day more fatal. The first religious errors,
which peopled the earth with false divinities, and
created a world of invisible beings to govern the
visible creation, were of the utmost service to
mankind. The greatest benefactors to humanity
were those who dared to deceive, and lead pliant
ignorance to the foot of the altar* By present-
ing to the minds of the vulgar things out of the
reach of their senses, which fled as they pursued,
and always eluded their grasp which as they ne-
ver comprehended, they never despised, their dif-
ferent passions were uiiited, and attached to a
smgle object. This was the first transition pf all
nations from their savage state. Such was the

'eRIMES \ND PUNISHMENTS. E53

accessary, and perhaps the only bond of all socie-
ties at their first formation. I speak not of the
chosen people of God, to whom the most extra-
ordinary miracles and the most signal favours
supplied the plact of human policy. But as it is
the nature of error to subdivide itself ad infinh-
turn, so the pretended knowledge which sprung
from it, transformed mankind into a blind fanatic
multitude, jarring and destroying each other in
the labyrinth in» which they were inclosed : hence
it is not wonderful that some sensible and philo-
sophic minds should regret the ancient state of
barbarity. This was the first epocha, in which
knowledge, or rather opinions, were fatal .

*
The second may be found in the difficult and

terrible passage from error to truth, from dark-
ness to light. The violent shock between a mass
of errors useful to the few and powerful, and the
truths so important to the many and the weak,
with the fermentation of passions excited on that
occasion, were productive of infinite evils to un-
happy mortals. In the study of history,' whose
principal periods, after certain intervals, muph re-
semble each other, we frequently find, in the ne-
cessary passage from the obsurity of ignorance to
the light of philosophy, and from tyranny to liber-
ty, its natural consequence, one generation sacri-

154 AN t;SSAY ON

ficed to the happiness of the next. But when this
flame is extinguished^ and the world delivered from
its evils, truth, after a very slow progress^ sits down
with monarchs on the throne, and is worshipped in
the assemblies of nations. ShalPwe then believe,
that light diffused among the people is more de-
structive than darkness, and that the knowledge of
the relation of things can ever be fatal to mankind?

Ignorance may indeed be less fetal than a small
degree of knowledge, because this adds to the evils
of ignorance, the inevitable errors of a confined
view of things on this side the bounds of truth ;
but a man of enlightened understancUng, appointed
guardian of the laws^ is the greatest blessing that
a sovereign can bestow on a nation. Such a
man is accustomed to behold truth, and not to
fear it ; unacquainted with the greatest part of those
imaginary and insatiable necessities which so often
put virtue to the proof, and accustomed to con-
template mankind from the most elevated point of
view, he considers the nation as his fiunily, and
his fellow-citizens as brother ; the distance be-
tween the great and the vulgar aj^pears to him the
less as the number of mankind he has in view b
greater.

The philosopher has necesdties and interests

CRIMES AND PUNISHMENTS. 1S$

unknown to the vulgar, and the chief of these is
not to belie in public the principles he taught in
obscurity, and the habit of loving virtue for its
own sake. A few such philosophers would con-
stitute the happiness of a nation ; which however
would be but of short duration, unless by good
laws the number were so increased as to lessen
the probability of on improper choice.

CHAP. XLIII.

«.

Of Magistrates.

m ,

ANOTHER method of preventing crimes is,
to make the observsoice of the laws, and not their
violation, the interest of the magistrate.

The greater the number of those who constitute
the tribunal^ the less is the danger of corruption ;
because the attempt wiH be more difficult, and
the power and temptation of each individual will
be proportionably less. If the sovereign, by pomp
and the austerity of edicts, and by refusing to hear •''
the complaints of the oppressed, accustom his
subjects to respect the magistrates more than the
laws, the magistrates will gain indeed^ but it mil
be at the expense of public and private security.

156 ' ANfiSSAYON

' : I

CHAP XLIV.

Of Rewards.

YET another method of preventing crimes is,
to reward virtue. Upon this subject the laws of
all nations are silent. If the rewards proposed by
academies for the discovery of useful truths have
increased our knowledge, and multiplied good
bodks, is it not probable, that rewards, distribu-
ted by the beneficent hand of a sovereign, would
also multiply virtuous actions. The coin of ho-
nour is inexUaustible, and is abundantly fruitful
in the hands pf a prince who distributes it wisely.

CHAP. XLV.

• Of Education.

FINALLY, the most certain method of pre-

venting crimes is, to perfect the system of educa-

ion. But this is an object too vast, and exceeds

my plan ; an object, if 1 may venture to declare

CBOiES AND PUNISHMENTS. 1^

k, which is so intimately connected with the na-
ture of government, that it will always remain a
barren spot, cultivated only by a few wise men#

A great man, who is persecuted by that world
he hath enlightened, and to whom we are indebt-
ed for many important truths, hath most amply
detailed the principal maxims of useful education.
This chiefly consists in presenting to the mind a
small number of select objects, in substituting the
originals for the copies both of physical and moral
phenomena, in leading the pupil to virtue by the
easy road of sentiment, and in withholding him
from evil by the infallible power of necessary in-
conveniences, rather than by command, which on-

•I

ly obtains a counterfeit and momentary obedience..

15g AXi ESSAY OX

CHAP. XLVI.

Of Pwrians.

AS punishments become more mild, clemency
and pardon are less necessary. Happy the nation
in which they will be considered as dangerous t
Clemency, which has often been deemed a suffi-
cient substitute for every other virtue in sove-
reigns, should be excluded in a perfect legislation^
where punishments are mild, and the proceedings
in crimmal cases regular and expeditious. This
truth will seem cruel to those who live in countries
where, from the absurdity of the laws and the se-
verity of punishments^ pardons and the clemency
of the prince are necessary. It is indeed one of
the noblest prerogatives of the throne, but, at the
same time, a tacit disapprobation of the laws.
Clemency is a virtue which belongs to the legisla-
tor, and not to the executor 5f the laws ; a virtue
which ought to shine in the code, and not in pri-
vate judgment. To shew mankind that crimes
are sometimes pardoned, and that punishment is
not the necessary consequence, is to nourish the
flattering hope of impunity, and is the cause of
their considering every punishment inflicted as

OfilMES.AND PUNISHMENTS. 1^

201 act of injustice and oppression. The prince in
pardoning gives up the public security in favour
of an individual, and, by his ill- judged, benevo-
lence, proclaims a public act of impunity. Let,
then, the executors of the laws be inexorable, but
let the legislator be tender, indulgent, and hu-
mane. He is a wise architect who erects his edi-
' fice on the foundation of self-love, and contrives
that the interest of the public shall be the interest
of each individual, who is not obliged, by parti-
cular laws and irregular proceedings, to sepef ate
the public good from that of individuals, and
erect the image of public felicity on ihe basis of
fear and distrust ; but, like a wise philosopher, he
will permit his bretheren to enjoy in quiet that
small portion of happiness, which the .immense
system, established by the first cause, permits
them to taste on this earth, which is but a point
in the universe.

A small crime is sometimes pardoned if the
person offended chopses to forgive the offender.
This may be an act of good nature and humanity,
but it is contrary to the good of the public : for
although a private citizen may dispense with sa-
tisfaction for the injury he has received, he can-
not remove the necessity of example. The right
of punishing belongs not to any individual in

160 AN ESSAY OS, ke:

particular, but to society in general, or the sove-
reign. He may renounce his own portion of this
right, but cannot give up that of others.

CHAP. XLV«.

Oonclusion,

I CONCLUDE with this reflection, that the
severity of punishments ought to be in proportiou
to the state of the nation. Among a people hard-
ly yet emerged from barbarity, they should be
most severe, as strong impressions are required ;
but, in proportion as the minds of men become
softened by their intercourse in society, the seve-
rity of punishments should be diminished, if it
be intended that the necessary relation between
the object and the sensation should be maintained.

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

That a punishment may not be an act of via-
lence^ ofone^ or of many ^ against a private mem^
ber of society^ it should be public^ immediate ^ and
necessary % the least possible in the case given^ pro-
portioned to the crime J and determined by the laws.

A COMMENTARY

ON tHE ESSAY ON

CRIMES ^JVn PKVISffJtfEJVrS.

CHAP. I.

The Cireumstanees that occasioned this Commentary.

MY mind was full of reflexions arising
from the perusal of the little work on crimes. and
punishments^ which is in moral science, what the
few remedies capable of alleviating our bodily
complaints are in medicine. I flattered myself that
this work would soften what remained of barba-
rism in the criminal jurisprudence of a great many
nations ; I hoped for some reformation in human
nature itself ; when I was informed that a girl of
eighteen years of age, handsome, possessed of
useful talents, and of a very respectable family,
had just been hung in one of the provinces.

Her crime was, having yielded to illicit love,
and in afterwards abandoning her child, the fruit
of the connexion. This unhappy girl, flying
from her parents house, was taken in labour, ^nd

162 A COMMEN-IARY ON

delivered, alone and without assistance, near a
brook. The feeling of shame, which in the sex
is a powerful passion, gave her strength to return
to the house of her father, and to conceal hcF si-
tuation. She left her child exposed ; it was found
the next day ; thfe mother ascertained ; condemn,
ed to death, and executed.

The jfirst fault of this girl should have been
considered by her family as a family secret, or
met with protection from the law ; because the
seducer sBouId be bound to repair the evil he had
done ; because weakness has a claim to indulg- «
ence ; because every feeling is in favor of a woman
whose concealed pregnancy often exposes her life,
at the same time that discovery of her conditiou
would destroy her reputation ; and, because the
difficulty of providing for the support of her child
is a \Qry great additional misfortune.

Her second fault was more criminal ; she aban-
doned the fruit of her weakness, and exppsedit to
the risk of perishing.

But because a child died, was it obsolutely nc*
cessary to destroy the mother ? She did not murder
it ; she flattered herself that some passenger would
have compassion for an innocent being; she oiight

QRIMES AXD PUXISHMENTS. ld>

even have had an intention of returning with the
view of finding her child, and affording it every
necessary assistance. This feeling, too, is so natu-
TdXrthst its existence, in the heart of a mother ought
to be presumed. I know the law is positive against
a woman under the circumstances above relat-
ed, in the province to which I alluded; but at the
same time is not this law unjust, inhuman, and
pernicious ? Unjust j because it makes no distinction
between the woman who murders, and she who
abandons her child ; inhumarty because it cruelly
inflicts the punishment of death on an unfortunate
being, whose only crime is weakness and anxiety
to conceal her miserable situation ; pernicious^ be-
cause it forcibly t^ars from society a fellow being
capable of adding to the subjects of the 'state, and
that too, in a province where they are sensible of
the want of inhabitants. Charity has not as yet
provided, in that province, houses of reception,
where children who are exposed may receive ne-
cessary care : where charity is wanting, law is
always cruel. It would certainly be better to
prevent ihest unhappy occurrences, which happen
but too often, than simply to rest satisfied with
punishing them. The real object of jurisprudence
is to prevent the commission of crimes, not to pun-
ish with death the weaker sex, especially when
it is evident that theii* faults are unaccompanied

164 A COMMKNTARY ON

with malice, and who are more than adequately
punished by the feelings of their own hearts.

Furnish, as far as possible, to those who may
be tempted to do evil, the means of avoiding it, ,
and you will have fewer criminals to punish.

CHAP. II.

Of Punishments.

THE unfortunate occurrence, and the severe
law, with which I have been so struck, induced
me to cast my eyes on the criminal code of nations.
The humane author of the " Essay on Crimes and
Punishments '' had but too much reason to com-
plain, that the latter was, too frequently, dispro-
portioned to the former, and sometimes even de-
trimental to the state they were intended to serve.

Ingenious punishments, to imagine which the
human mind seems to have exhausted itself in
order to render death terrible, seem rather the
inventions of tyranny than of justice.

The punishment of the wheely was first intro*
duced into Germany during times of anarchy.

CRIMES AND PUNISHMENTS.

165

when those who usurped regal power wished to
terrify, by the studied . preparation of unheard-of
torment, whosoever should dare to make an at-
tempt upon their authority. In England, they
ripped up the belly of a man convicted of high

treason^ tore out his heart, dashed it in his face,

■>. *

and then threw it upon the fire. And what, very
frequently, constituted the crime of high treason ?
During the civil wars, a faithful adherence to an
unfortunate monarch ; and^ sometimes, the expres-
sion of an opinion upon the doubtful rights of a
conqueror. Time^ however, rendered their man-
ners milder ; they continue notwithstanding, to
tear out the heart, but it is always after the death
of the criminal. The apparatus death is dreadful;
l>ut the death itself is easv, if death can ever be
said to be easy.

166 A COMMENTABY ON

CHAP. III.

Of the Vunishments of Heretics.

THE denunciation of the punishment of death
against those yfho differed from the established
church in certain ^ints of doctrine, was peculiarly
the act of tyranny. No christian emperor, before
the time of the tyrant M aximus, ever thought of
condemning any man to punishment, merely on ac-
count of controversial points. It is; true, that it
was two Spanish bishops who {)ursued to death
die Priscillianists under Maximus ; but it is also
not the less true, that this tyrant was willing to
gratify the ruling party by shedding the blood of
heretics. Barbarity and justice were viewed by
him with equal indifference. Jealous of Theodosi-
us, who was also a Spaniard, he -flattered himself
with the idea of depriving him of the empire of the
east, having already,usurped that of the west. The-
odosius was detested for his cruelties ; but he un-
derstood the art of gaining to his party the heads of
the church. Maximus was desirous, by displaying
the same zeal, of attaching the Spanish bishops to
his faction. He flattered both the old and the
new religion; he was a -man as treacherous

CRIMES AND PUNISHMENTS. 167

as inhuman, as indeed were all those, who, at this
period, aspired to or obtained the empire. The
govcnment of this vast portion of the world was
similar to that of Algiers at the present day. The
soldiery created and dethroned the emperors ; they
selected them often from among the natives of their
country regarded as barbarous. Theodosius op-
posed to his antagonist other barbarians from
Seythia : it was he who filled the armies with
Goths, and who raised up Alaric the conqueror of
Rome. . In this horrible state of confusion, the
empire belonged to him who could strengthen
his party most eifectually, by any and #^ery means
in his power.

Maximus, just had procured the assassination,
at'LybnSj.of Gratian, the colleague of Theodosius;
and meditated the destruction of Valcntinian the
2d. who, while yetflf child had been nominated
as the successor of Gratian-at Rome. He assem-
bled at Treves a powerful army composed of
Gauls and Germans. He was also leveying troops
in Spain, when two Spanish bishops Idacio and
Ithacus or Itacius,* men who possessed much in-
fluence^ came and demanded of him the blood of
Priscillian and of all his adherents, who were per-
suaded that souls are emanations from God ; that the
trinity does not include thfee Hypostases ; and

lob A COMMIi^NTARY UN

who^ moreover, carried their sacril^ious doings so
far as actuaUy to fast on Sundays. Maximus, half
pagan, half christian, was soon aware of the enormi-
ty of th^se crimes. The holy bishops, Idacio and
Itaciu% also obtained permission to torture Pris-
ciUian and his a(&erents befoip^ they put them to
death. They were both present at the executi(His
in order to see that all things were regularly con-
ducted ; and they returned home praising God^
and numbering Maximus, the defender of the
faith, among the saints. Bui Maximus being de-
feated by Theodosius, and afterwards murdered
at the feet af his vanquishers had not the honor to
be canonized. It is proper, at the same time, to
remark, that St. Martin, bishop of Tours, who
was a truly good man, solicited the pardon of
Priscillian ; but being himself accused of being a
heretic, he returned to Tours for fear of being put
to the torture at Trevis. J^

As for Priscillian, he had the consolation, after
being hanged however, of being looked upon by
his followers as a Martyr. They celebrated the
day of his canonization, and they would probably
do so to this day, if there were any Priscillianists
remaining in the world.

rhis example made the whole church tremble ;

CRIMES AND PUNISHMEKTS. ife

but, , soon after, it was not only successfully im-
itated, but even surpassed. Priscillianists had pre-
shed by the sword, by the halter, and by stoning;
. to death : a young lady of quality, suspected^ of
having fasted on a sunday^ was only stoned to
death at Bordeaux. These punishments^ however,
appeared too mild ; it having been duly proved,
that God required heretics to be roasted alive by a
slow fire. The convincing ai^ument offered in
support of this opinion was, that it was in that
manner that God himself punishes them in anothei'
world ; to which they added that all princes, and
all representatives of princes, including therein all
petty magistrates, were the itnages of God iti this
sublunary world !

In pursuance of this principle they every where
burned all witches and sorcerers; such personages
being manifestly under the empire of the devil ;
and extended the same charity to all heterodox
christians, who were deemed more criminal and
dangerous tlian even sorcerers themselves.

The precise nature of the heresy, with which
the priests whom king Robert (the son of Hugh,}
and Constance his wife ordered to be burned in
their presence at Orleans, in 1022, were con-

•

taminated, is not known. How indeed it should

170 . A COMMENTARY ON

be known, there being at that time none but some
few scholars and monks who could read, is not
easy to determine. This fact, however^ is well
established^ that Robert and his wife satiated their
eyes with the view of this most abominable spec*
tacle — One of these sectaries had been confessor
to Constance, who thought, that she could in no
way better repair the misfortune of having con-
fessed herself to a heretic, than by seeing him
devoured by the flames. Custom ripens into law :
from that period down to the present day^ the
church has continued to bum those who werp,
or who at least appeared to be, blackened by the
crime of erroneous opinion.

CHAP. IV.

Of the extirpation of Heresies.

WE ought, it appears to me, in matters of
heresy, to distinguish between opinion ?j\A faction.
From the first ages of Christianity, opinions have
been divided on the subject of religious duty^
The christians of Alexandria did not agree, oa
many points, with those ofAntioch. The Ach-
aians were at variance with the Asiatics. This
diversity of opinion has existed in every age, and.

CMMfiS AND PmtSrtMENTH. in

in all probability, will continue forever. * Jesus
Christ, who alone could have united all the faith-

^ ful in one opinion, did not do so ; it is fair; there-
fore, to presume^ that such was not his intention ;
but, that his design was rather to exercise all his
churches in performances of charity, and acts of
indulgence towards each other, by permitting the
establishment of different systems, which, however,
should all unite in acknowledging him as their
Lord and Master. These sects, for a long period
of time, either tolerated by the Roman emperors,

.-^ or, concealed in quiet obscurity, were unable to
persecute each other, as they were all in equal sub-
jection to the Roman magistrates ; they only pos-
sessed the right of disputation. When persecuted
by the magistrates, they all claimed the privilege
of nature ; ** suffer us, said they, to worship our
God in peace ; do not deny to us, the liberty you
grant to the Jews." Every sect at the present
day has a- right to hold the same language to their
oppressors. They can say, with justice, to those
who have granted privileges to the Jews ; "' Treat
us, at least, as you treat these children of Jacob ;
let usy like them, worship God according to the
dictates of our own consciences ; our opinions will
injure your kingdonm no more than Judaism.
You tolerate the enemies of Jesus Christ; tolerate,
at least, us, who are his worshipers, and who dif-

t72 !« A COMlfENTARY ON

fer from jrourselves, only in some trifling theolo^
gical subtilties — Do not deprive yourselves of
useful subjects. It b of importance to you to possess
our exertions in your navy, in your manufactories^
and in the cultivation of the soil ; and, it is of
trifling import to you that we differ in some few
articles of faith. It is our labor that you stand in
need of, and we do not wish you to adopt our
catechism.''

Faction is a very different thing. It always,
happens, and that necessarily too^ that a persecu-
ted sect degenerates into a faction. The oppress-:
ed naturally unite and encourage each other.
They are more industrious in the work of strength-
ening their party, than the reigning sect are in the
business of extermination. They crush or are
crushed. Precisely so it happened (after the per-
secution set on foot in the year. 303 by Galeriusj^
during the two last years of the reign of Diocle-
sian. The christians having been favoured by
Dioclesian for a period of eighteen years, were
toQ numerous, and too rich to be exterminated :
they attached themselves to Constantius Chlorus,
they fought for his son Constantine, and ai) en-
tire revolution in the empire was the consequence.

Trifling events may be compared with those

CRIMES KND PUNISHMENTS. 27 o

that are great^ when they are directed by the same
spirit. Similar revolutions took place in Holland^
Scotland^ and Switzerl^d. When Ferdinand and
Isabelladrove out of Spain the Jews, who^vere set-
tled there before the then reigning house, before
the Moors, and even before the Carthaginians,
the Jews, if they had been as warlike as they were
rich, and could have made arrangements with the
Arabs, might easily have brought about a revolu-
tion in Spain. In short, no sect ever succeeded in
producing a change in the government of a coun-
try until despair furnished them with the means.
Mahomet himself succeeded, simply because he
was driven from Mecca, and a reward offered for
his head. «

Would you prevent then any sect from over-
turning a state-exercise toleration : imitate the
wise conduct by which England, Germany, and
Scotland are regulated. (jovernn>ent has but one
choice ta make with regard to the mode of treating
anew sect; that of putting to death, without
mercy, the chiefs of the sect, and all their adhe
rents, men, women, and children ; or, that of to-
lerating them when the sect is numerous. The
first method is that of a monster ; the other that
of a sage. Bind every subject to the state with the
chains of his own interest. Let the Quaker and

174 A COMMENTARY ON

the Turk find their advantage in living under the
protection of your laws. • Religion is a matter
between God and man ; the performance of civil
duties a question between Government and the
people.

CHAP. V

Of Blasphemy and Profanaiion.

LOUIS the 9th. king of France, who, for his
virtue, was numbered among the saints, made a
law against blasphemers. He condemned them
to a new species of punishment ; that of having the
tongue pierced with a red hot iron. This was a
kind of le^ talionis ; the member that had sinned
suffered the whole punishment. But it was very
difEcult to determine what was really blasphemy.
In the transports of rage, in the excitement of joy,
even in common conversation, expressions often
escape from a man, which, strictly speaking, are
merely expletives ; such as the Sehh and the FoA
of the Hebrews ; the Pol and the Mdepol of the
Latins ; and the per Deosimmor tales y an expression
made use of every moment without the least in-
tention of swearing by the immoriai G6d3.

CRIMES AND PUNISHMENTS. 175

The words called oaf>^ and blasphemy ^ usually
consist of vague terms, which may be variously
interpreted. The law punishing those making
use of them, seems to have been taken from the
Jewish commandment, which says *' Thou shalt
not take the name of God in vain^ The best in-
terpreters think that this law has relation only to
perjui^.. And there is great reason to believe
they are right, as the word shave in the original,
which is translated in vain^ strictly speaking sig-
nifies j&<?r/wry. Now who can discover perjury,
in tht words cadedis sangbleu^ ventrebleuy corbleu.

The Jews swore by the life of God, ^' as the
Lord livethJ*^ It was a common phrase ; so that
the only thing forbidden, was, lyings at the time
that God was called upon to witness the truth of
what the party said.

Philip Augustus, in 1181, condemned such (rf
the nobility of his kingdom as should pronouce the
words tdlebleuy ventrebleu^ corbleu^ sangbleti^ to
pay a fine, and ordered commoners to be drowned.
The first part of this ordinance seems puerile, the
second was abominable. It was an outrage on
human nature to drown a commoner for the fault
which a nobleman expiated by paying a few pence
of the money of those times. The natural conse-
quence was, that this extraodinary law remained

176 A COMBfBNTARY ON

unexecuted, as indeed did many other laws, par-
ticularly during the time that the king was un-
der a sentence of excommunication, and his king-
dom laid under an interdict by Pope C destine
the 3d. St. Louis, inflamed with holy 2eal, gave
orders, that whosoever should pronounce the in-
decent words we have mentioned, should have,
either his tongue bored, or his upper lip cut off.
But a respectable citizen of Paris having lost his
tongue in consequence of the punishment, com-
plained to Pope Innocent the IV, who represented
with decision to the king, that the punishment
was too severe for the crime. The king for the
future desisted from this severity. Happy had it
been for mankind^ if the popes had never affected
any other superiority over kings.

The ordinance of Louis the 14th. of the year
1666,directs: ^'that whosoever shall be convicted
/ of having sworn by, and blasphemed the holy name
of God, of his most holy Mother, or of his Saints,
shall, for the first offence, pay a fine ; for the
second, third, and fourth offence, a double, triple
and quadruple fine ; for the fifth offence, be put
in the stocks ; for the sixth, shall stand in the
pyior}', and have the upper lip cut off; and for
the seventh offence have the tongue entirely cut
out.''

CBIMES AND PUNISHMENTS. 177

This law^ appears to be wise and humane ;• it
inflicts a severe punishment on a sevenfold repe-
tition of the crime, a thing scarcely to be antici-
pated with regard to those more daring profana-
tions designated by the term of sacrilege. Our
compilations of criminal jurisprudence, where
decisions are reported, which, however we are not
to consider as iawsj make mention only of the
crime of church.robbery : and there is no positive
law on this subject condemning the criminal to
the flames. I'he laws also are silent on the subject
of public impiety ; either^, because such folly Mras
not anticipated, or, that there exists great diffi-
culty in specifying the acts necessary to constitute
the o£knce. This crime b therefore left, as &r
as regards punishment^ to the discretion of the
judges. Justice, however^ should not leave any
offisnce undefined, or its punishment arbitrary.

. In cases that occur so rarely, what^ it may be
asked, is the proper course for a judge to pursue ?
He ought to consider the age of the offender^ the
nature of his ofience, the degree of evil disposition
and obstinacy manifested, the public scandal to
which it may have ^ven rise, and, particularly,
whether or no there exists a necessity for a ter-
rible public example. Fro qualitate persorup
proque ret conditione et temporis et xtatis et sex&Sj

irrf A COMMENTARY ON

vel severins vd clementius statuendem.* And if
the law does not expressly provide the punishment
of death for the crime — What Judge can deem
himself bound to authorise its infliction? If there
must be a punishment; if the law is silent ; a judge
should, without hesitation, award the mildest pun-
ishment in his power — ^Because he - himself is a
man,

« Sacrilegious profanations are never committed,
except by young and dissipated men : would you
punish them for this crime as severely as if they
had committed murder on a brother ? Their youth
itself pleads in their favor. They can not even
dispose of their property ; because they are sup-
posed to want the maturity of judgment necessary
to anticipate the probable consequences of an im-*
prudent transaction ; it is, therefore, reasonable to
suppose, that they cannot properly estimate the
results of an impious sally.

Would you treat a dissolute young man, who,
in a frolic, . had profaned, not stolen, a sacred
image, with the severity that you treated a BrmM*
bersf who poisoned her father and all his family ?

There is no existing law that condemns the

" Tit. XUI. MUffcmJvUatr

CRIMES AND PUNISHMENTS 179

unhiqppy wretch^— 'You create one in order to sub-
ject him to the severest punishment. He des^ves
an exemplary chastisement ; but does he merit
t(M:tures^ at the thought of which nature shudders,
in addition to a violent death ?

But he has sinned against God ; true, he has,
most grievously. Deal with him, then, as God
would deal. If penitent; — God forgives him.
Cause him, therefore, bitterly to repent ; but, at
the same time, forgive him also.

Your own illustrious Montesquieu has said,
" Our duty is, to reverence God, not to avenge
him.'' Let us consider well his words : They do
not piean that we are to ueglect the mainte-
nance of public decorum ; but, as the judicious
author of the ^^ Essay on Crimes and Punish-
ments" obsenreSy they demonstrate the absurdity
of the attempts of an insect, to avenge the insult-
ed majesty of the arbitrator of the universe. Nei-
ther the magistrate of a petty village, nor the
judge of an imperial city, is a Moses or a Joshua.

«'

IW \ r^lMMTSPf TAKY ON

CHAP. VI.

Cfthe indulgence of the Romans in Matters of Re-

tiginji.

THROUGHOUT Europe, the conversation of
enlightened men has often turned upon the sur-
piising contrast existing between the Roman laws,
and the barbarous institutions by which they were
succeeded and obscured, as the ruins of a splendid
city are hidden by accumulating rubbish.

Doubdess the Roman Senate felf as profound
a veneration for the Supreme Being as we do ;^
and held the secondary immortal gods, mho
were dependent upon their eternal ruler, in as
much consideration as we do the saints. A6 Jovt
pumipiumj was the common form of invocation.
Riny* in his panegyric on Trajan, begins by
averring, that the Romans never omitted to in-
voke the Deity when they entered upon business^
or at the commencement of their speeches. Ci-
cero and Livy confirm the assertion : No people
w6re ever more religious ; bu they were also too
wise, and too magnanimous to condescend to

* Bene ac sapienter patres conscript! inajcyres instituenint ut reram
•fendarum ita dicendi initium a precationibus cepere, &c.

CHIMES AND PUNISHMENTS. j8l

punish idle language, or philosophical opinions.
They were incapable of inflicting a barbarous pun-
ishment on those^ who, with Cicero, himself an
augur, had no faith in auguries ; still less did they
persecute those, (and among others Julius Caesar,
who made the assertion before the assembled se*
nate,) who said^ that the gods do not punish men
after death.

It has vbeen often remarked^ that the senate per-
mitted the chorus in the Troades, to utter the
following sentiments before the audience, in the
public theatre at Rome. «

" TTiere is fiothing to be looked for after deaths
and death itself is nothing. Thou askest, in what
place the dead remain ? — where they remained be-
fifre thetf had existence.^*

If there ever was pro&nity, surely this is it;
and, from Ennius to Ausonius, all is profanity,
notwithstanding the respect generally paid to pub-
lic worediip. Why were these things disregarde4
t^ die Roman senate f limply because they did
not interfere with the government of the state;
and did no injury whatever to any. institution, or
religious ceremony. The police of the Romans
wasy excellent; and, notwithstanding what we

lae A COMMENTARY ON

have just related, they continued to be absolute
masters of the fairest portion of the world till the
reign of Theoflosius the second.

The maxim of the senate was, Deorum offense
Diis cur a : — tliat offences committed against the
gods concerned the gods alone. The senators
themselves being at the head of religious affairs,
were under no apprehensions that they might be
forced by a convocation of priests to administer
to t/ieir vengeance^ under the pretext that the Al-
mighty was to be avenged. They never said^
"lot us tear the impious to pieces, lest we be
deemed impious ourselves — let us prove to the
priesthood by our cruelty, that we are not le^s re-
ligious than they.''

Yes — but our religion is more holy than that of
the Romans — Impiety is, therefore, a much greater
crime with us than with them : granted — Grod.will
punish it ; — the duty of man, is to punish the cri-
minality of impiety when it assumes the shape, of
public disorder. But, if, in committing the act of
impiet]^, not even a handkerchief has been stolen
by the offender; if he has not done the smallest
injuiy to anyone; if the rites of religion have
not been disturbed ; shall we .punish (I repeat) the
man committing such an act of. impiety as we

CRIMES AND PUNISHMEN TS, i&J

would a parricide ? The Marechale d* Ancre caus-
ed a white cock to be killed at the full of the
Moon — Does such an act of folly call upon us to
bum alive the Marechale d' Ancre ?

Est modus in rebus, sunt cert'i denique fine:?.
Nee scutica dignum horribili sectare flagello.

CHAP. ^YII.

Of the erime of unlawful preaehing. Story of «Sn-

thony.

A CALVANIST preacher, if he comes se-
cretly into certain of the provinces for the purpose
of preaching clandestinely to a congregation, is
punished with death, if discovered ; and those
who may have furnished him with a meal, or a
nights lodgings are liable to be sent to the gal-
leys for life.

In some countries, a Jesuit detected preaching,
is hanged. Is it for the purpose of revcnpng
God's cause, that the Calvanist and Jesuit are or-
dered to be executed ? Do not both parties justi-
fy their deeds by the following evangelical law ;
Whosoever hearkeneth not unto the churchy let

\l^i A COMMENT AUy 0^

Jiim be treated as a heathen and a publican ? But
the gospel does not enjoin us to hang either the
heatlien or the publican.

' Or have they built upon the passage in Deute-
ronomy* — 1/ among you a prophet arise y and that
which he saith come to pass^ and he saith unto youj
Let us foUaw strange gods ; and if thy brother j or
thy son^ or thy wife^ or the friend of thy hearty say
unto thee^ come let us follow strange gods: let them
straightway be killed; strike thou first y and all the
people after thee ? — ^But neither the Calvinist nor
the Jesuit have said t-^Come let usfolhw strange
gods.

The Counsellor Dubourgy the canon Jehan
Cliauvinj commonly called Caivin^ the Spanish
physician Servetus^ and Gentilis^ a native of Cala-
bria, all worshipped the same God ; yet the Pre-
sident ifaSnarcf caused Dubourgto be hanged, and
the friends of Dubourg procured the assassinatioQ
of Minard. Calvin caused Servetus to be burned
alive ; and had the additional consolation of sue-
cessfully contributing^ in no ordinary degree, to
bring Genulis to the block: the successors of
Calvin burned Anthony. Was it reason, piety,
or justice that produced all these murders ?

* Chap. xli:.

*v.

• The story of Anthony is one of the most sin-
gular we find recorded in the annals of Fren«
ijy. The following account of him I have ex-
tracted from a very curious manuscript ; and thef
story is also partly related by Jacob Spohn^

Anthony was born at Brieu in Lorraine, of Ca-
ffaoiic parents^ and studied at Pont-a-Mousson
with the Jesuits. At Metz he was converted to
the protestant faith by the preacher Feri* On his
arrival at Nancy, he was prosecuted as a heretic >
and, but for the timely assistance of a friendu
would inevitably have been hanged. He fled for
refuge to Sedan, where, being taken for a papist^
he narrowly escaped assassination.

As if aware that same strange fatality attended
him, and convinced that his life was safe neither
among protestants nor catholics^ lie Went to Ve**
nice, and there embraced Judaism; He was sin-
cere in the persuasion, and mattitamed it, too, to
the hst moment of his life, that the Jewish Was
the only true religion ; and, that as it had once
been so^ it would forever continue so to remain.
His Jewish brethren did not circumcise him^ for
fear of giving offence to the civil magistrate ; but
he was not, on that account, the less a Jew at
heart. He made no open profession of his new

A a

186 A COMMENTARY ON

faith ; and haviug taken a journey to Geneva, iu
the character of a preacher, he became president
of the college^ and finally exercised the office that
there gives the title of Minister.

The continual combat in his breast, between
the doctrine of Calvin, which he was under the
necessity of preaching, and the religion of Moses,
the only religion in which he believed, produced
a long illness* He became melancholy, and finali-
ty quite deranged ; in his agonies he exclaimed,
that he was a Jew. The ministers of the gospel
came to visit, and endeavoured to bring him back
to reason ; but he answered, ^^ That he adored
none but the God of Israel ; that it was impossi-
ble for God to change ; and that God could never
have promulgated, engraven with his own hanjd,
a law 'he purposed to abolish.'* He declaimed
against Christianity, but afterwards retracted all
that he had said ; he wrote a profession of Faith,
for the purpose of escaping punishment ; but, af-
ter having written it, the unfortunate persuasion
of his heart prevented him from signing it ; and
the ci^ council assembled to ascertain what was
to be done with the unhappy man. The minority
of the priests, assembled for this purpose, were of
ojunion, that he was an object of compassion ; and
that their first endeavours should be directed to

GRIMES Aim PUmSHMBNTS. ISf

cure his mental disorder, rather than to inflict pun-
ishment on him. The majority, however, decide
ed that he deserved to be burned alive, which"
was accordingly executed. This transaction took
place in 1632.* A celrtury of reason and virtue
scarcely suffice to expiate such a deed.

€HAP- VIIL

The Story of Simon Morin.

THE tragical end of Simon Morin is hardly
less shocking than that of Anthony. In the midst
of the gaieties of a splendid court, surrounded by
gallantry and pleasure, and during the season of
greatest festivity at Paris this unluq^ wretch
breathed his last in the flames, in tfie year 1663.
He was a deranged man, who believed that he saw
visions ; and even carried his folly so far as to im*-
agme, that he was sent from God, and gave out
that he was incoiporated with Jesus Christ^

The parliament, very judiciously, condemned
him to imprisonment in a mad-house. Whal
is exceeding singular, there was, at that time,
x)onfined in the same mad-house, another crazjr

Um A COMMBNTART OK

man who called himself the etemalfathen
Morin was so struck with the folly of his compa*
oion, that his eyes were opened to the truth of his
own condition. He appearedi for a time, to have
recovered his right senses ; and, having made
known his penitence to the magistrates of the town^
obtained, unfortunately for himself, a relefUBC from
confinement.

Some time afterwards he relapsed into his form*
er state of derangement, and began to dogmatize.
His unhappy tfescinjr made him acquainted with
St, Sorlin Desmarets who was for some time his
friend ; buc who afterwards, from jealousy excited
by the circumstance of their both belonging to the
game holy trade, became his most deadly perse^
CUton

Desmarets was not less visionary than Morin ;
his first follies were indeed innocent. He punish^
ed the tragi-comedies of Erigone and Mirame^
with a translation of the psalms ; the romance of
Araine, and the poem of Clovis# to which he add.»
ed the office of the Holy Virgin in verse. He like*
wise published dithyrambic poema, enriched with
invectives against Homerand Virgil. From this
species of folly he proceeded to another of a more
serious nature. He became furious against Part
Mpt/al; a! d, after avowing that he had perverted

some women to Atheismi commenced the career

^fiBroph^ He pietendec) thatGoc) liod placed
ijFi his hmd§, the kfjr qf the tre^ures of the Apo<-
4»lyp9e ; that wi& {but A:ey be wqoUI pipdup^ the
ceforiu oisM hmow kind ; and that he was aboitf
to inarch figainst the Jan^nisiB ii^th an anny of
an hundred and forty tboii8an4 men.

Nothing could have been more rational than
to have confined him in the same cell with Simon
Morin : will it be credited that he met with en-
couragement from the. le-Hiut^^jinnai^ the king's
confessor ? He persuaded Anhat^ that poor Simon
Morin was establishing a sect almost as danger-
ous as Jansenism itself; and^ finally, having cani-
ed his infamy so far as to turn informer^ he ob-
tained from the Lieutenant'CrimineL an order for
the arrest of his unfortunate rival. I scarce dare
relate the result^^Simop Morin was condemned
to be burned alive*

When about to conduct him to the stake^ the
executioner found a paper in one of his stockings
in which he begged forgiveness of God for all his
errors — that alone ought to have saved him, but
the sentence was irreyocabljBry aod he was executed
without mercy.

Such deeds harrow up the soul-^yct sjhew mie

1^ A COMMEVTAmr OK

tlie country, where scenes as drelidful hav€ not
taken place.' Men have every where forgotten
that they were brethren, and have persecuted each
odier ** even untodeath." The mMtpowerful con-
solation to human nature is, that those dreadful
times are past away, to return no more«

CHAP. IX

Of IFIfekeff.

IN 1749, a woman was burned in the Bishopric
of Wurtzburg, for the crime of witchcraft — An
extraordinary phenomenon in the present centu-
ry. Is it possible that nations \who bpast of their
reformation ; of trampling superstition under foot;
who, indeed^ supposed that they had attained the
perfection of reason, could believe in witchcraft ;
and, upon the strength of such belief, proceed to
bum poor women accused of that crime, and this^
more than an hundred years after the pretended
reformation of their reason ?

About the year 1652, a country-woman, nam-
ed Michelle Ohaudron^ belonging to the little ter-
ritory of Geneva, met the Devil, in the road lead-
ing out of the city. The Devil gave her a kiss,

CRIMES AND FUNlSHlfEMTS* If 1

received her hoin^ge» and imprinted on her up-
per lip, and right breast^ the mark he is wont to
bestow on those whom he chooses to distinguish as
favorites. This seal of the Devil, is a little mark,
which renders the skin insensible, as we are as«
sured by the demonographical civilians of those
times.

The Devil then ordered Michelle Chaudron to
bewitch two ^rls. She obeyed her master punc-
tually. . The parents of the girls took legal mea«
sures against her for the crimen <^ witchcraft. The
^Is were interrogated, and confronted with the
accused.^ They declared that they felt a continu-
al pricking all over their bodies, and thatthey were
bewitched. Physicians, at least those who were
called physicians at that time, were called in. They
examined the girls. They alsosearched on the body
of Michelle for the deviPs marks, called in the state-
ment of the case, satanic marks. Into one of these,
they thrust a long needle, which produced no trif-
ling degree of torture. The blood flowed. readUy
enough, and Michelle gave sufficient evidence by
her cries, that the satanic marks had not rendered
the part insensible. The judges finding the evi-
dence, of Michelle's being a witch, defective, pro-
ceeded to torture her ; a method that infallibly far-
liishes sufficient evidence of any fact : the wretch-

19 A COmOSNTiUT ON

ed woman confesaed dving herflgonies^ emy
thing they desired^

The phjrsieians again soughll the satanic tnarks^
They found a little black spot upon cme of her
thighs. Into thb they thrust the needle. The tor*
ture the poor creature had undergone rendered
her insensible to the pain, and she did not cry out .
of course, liie crime was fully proved. But
as a dawn of civilisation then began to appear in
the worlds die was strangled previous to being
burned. At the period of which we are speaking,
(1652.) every tribunal of christiian Europe resound*
ed with similar sentences ; and fire and faggot
were univeraaUy employed, as well against witch-
craft asheresy. Nay, it was thought a- matter of
reproachtothe Turks, thatthey had neither witch-
es nor demoniacs among them ; and, the absence
oS the latter, was urged as a decisive proof of the
ialsehood of their religion^

A zealous friend to public welfare^ humanity
and true religion, has^ in one of his works in favor
of innocence, informed us, that christian tribunes
have ccmdemned to death, above an hundred
thousand persons accused of the crime of witch-
craft. If to these judicial murders be added the
much superior number of immolated hereticsi that

COmifiS AliTD f UNISQlfENTS. i^

portion of the globe will be found to resemble a
vast scaffold, covered wifh victims and execution*
ers, and surrounded by judges, guards and spec*
tators^

CHAP. X,

Of capital punishment.

IT is an old observation, that a man, after he is
hanged, is good for nothing ; and that punish^
ments intended to benefit society, should, at the
same time, be useful to society. It is very evi-
dent, that a score of robust highway men, con-
demned for life to labour on some public work,
render through the medium of their punishment^
some service to the istate ; and that their deaths
would be of service to no one but the public ex-
ecutioner. Thieves are seldom executed in En-
gland ; transportation to the colonies is substitu-
ted, A similar plan was pursued throughout the
vast empire of Russia, where the self- created pow-
er of Elizabeth, during its whole continuance, did
not require a single e^cution. The superiw geni^
us who succeeded her,t Catherine 2d, has adopted
the same maxim,

fin 1762,

B b

194 A COMMENTARY ON

It has not been discovered that crimes imil^
ply in consequence of thi^ humanity ; and gener-
ally speaking, criminals banished to Siberia have
been thoroughly reformed. The same remark
has been made with regard to the English colo.
nies. This happy change astonishes us — ^yet no.
thing is more natural. The convicts are obliged
to labour incessantly in order to sypport life ; op-
portunities for vice are wanting ; they marry, and
a new population is the consequence. Oblige
men to labor, and you render ,them respectable.
It is notorious that few crimes of an atrocious
cast, are committed in the country, except, per-
haps, when too many holidays lead to idleness and
consequent debauchery.

A Roman citizen was never capitally punished,,
except for crimes that endangered the safety of
the republic. They, our masters, our first legis-
lators, were sparing of the blood of their fellow-ci-
tizens ; we are prodigal of that of our own.

The delicate and fatal question, whether a judge
is authorised to pronounce sentence of death,
when the law does not ex^ssly point out the
pumshment of a crime, has often been discussed.
It was solemnly argued before the-Emperor H^-

CRIMES AND PmaSHMENTS. 19j^

ry 7th»^ who decided, that no judge could exer-.
cise such a power.

There are, certainly, some criminal cases, ei-
ther so rare, so complicated, or attended by such
extnuudinary circumstances, that the laws of
more than one country have been obliged to leave
the remedies for such singular occurrences to be
determined by the discretion of judges.

But where there happens one case^ in which
it becomes necessary to put to death a criminal to
whom the law does not adjudge death as the mea-
sure of his punishment, a thousand cases ariscj,
in which humanity would lead us to spare life, i^
opposition to tlie sentence of the law.f

The sword of Justice is committed to oui:
hands ; but, we ought rather to blunt^ than rea-

* Bodin, de BepubUca, lib. 3. chap v.

f Infinitely less ixuschief arises from suiTering a crime to gfo unpun"
ished, than to sentence the criminal to capital punishment when un*
authorised bv an express provision of law. It is depriving punish-
ment of its legitimate character, that of being inflicted as a conse-
quence of crime, and not as avenging the ^It of any particular indi-
YiduaL Any law permitting a judge to mflict the punishment of
death, secures impunity to him should he exercise the power ; but it
cannot absolve him from the guilt, (in a moral point of view) of mur-
der. Besides, how is it possible to conceive the existence of acrime,
as detrimental to the wetfare of society as the continuance in being
of the man who commits would be duig^rous, and yet that the oc-
currence of this very crime should never be anticipated b^ an en«
lightened legislator ; that it should be as well difficult to foresee, as
to determine with precision the acts by which it shall be constitut^df

1^ A COmiENTARY ON

der its edge more keen : It remains in its sheath
in the presence of royalty — 'tb to admonish us
that it should be rarely drawn.

In addidon to these reflections, we should not
forget, that there have been Judges who delighted
in blood ; such was Jeffreys, in England ; such, in
France, was the character who received the sur«
name of Coup-tite.* Those men were never
born to the magistracy; nature intended them
for the executioners of Justice,

CHAP. XL

Of the Execution of Sentences.

MUST we go to the extremities of the earthy
must we have recourse to the law of China, to
learn how sparing we ough: to be of human blood ?
The tribunals of tlmt country have existed dur.
ing a period of more than four thousand years ;
yet, at the present day, a peasant, at the ex-
tremity of the empire, remains unexecuted,
until the proceedings in his case have been
transmitted to the emperor, who causes them
to be thrice reviewed by one of his tribunals;

* The beheader.

CRIBIBS AND PUNISHMENTS. t»f

after which, he signs the warrant for execution,
or comnuitation of punishment, or grants him 9,
pardon**

Let us not travel so far for examples, whil$;
Europe abounds with them. No criminal is ever
executed' in England whose death-warrant is uq*
signed by the king : the same regulation prevails
in Germany, and in most countries of the north
of Europe. In France, the same custom anciently
existed ; and always ought to exist in every civil-
ized nation. Cabal, prejudice, and ignorance^ may
dictate sentences when they are not to be review-
ed by the throne ; and little local intrigues are
unknown to, and disregarded by a court employed
as it always is^ by objects of importance.

The supreme epuncil of a state consists of men.
more accustomed to business, and less liable to
prejudice; the habit of regarding g^at affairs
only, renders them less presuming, because less
ignorant ; and they are, of course, more capable

* The author of the " SpirU of Laws,*' who had intenniiigled so
many ohanmiig trutbtf m his worl^ seems to be egregioualy mistak-
en, when, in order to support his assertion, that the vague sentiment
of honor is the support or monarchies, and virtue of republics, he
says of the Chinese : « I am ignorant in what honor consists among
nations who are governed by uie Bastinado." Surely, because they
disperse the mob with a cudgel, and punish rogues and vagabontls
with the bamboo, it does not follow, that China is not governed by
tribuivds that are a mutual check to each other; or, that is not an ck-
cMlent form of govemmeht. —

198 A COMMENTASY ON

of jiidg^g than the inferior judge of a prdvince,
whether the whole state requires or pot an exam-
ple of severity in punishment. In short, ii^en«
ever inferior courts have detenjoiined a case ac-
cording to the strict letter of the law, an interpre-
tation often rigorous, the supreme council miti-
gates the sentence in obedience to the dictates of
general law, which teaches us, never to sacrifice
our fellow-creatures, but upon the most evidtet
necessity.

CHAP. XII.

Of Torture.

ALL mankmd, being exposed to the attemps
of perfidy or violence, detest crimes of which they
may possibly be the victims. All unite in the
desire of punishing the principal offender and his
accomplices; but all, nevertheless^ through a
sentiment of pity which God has implanted in
our hearts, are roused to resist the practice of
torturing the accused from whom a confession is
wished to be extorted. The law, as yet, has not
judged them guilty ; and, a punishment is inflict-
ed upon them, while we aire in a state of uncer-
tainty as to the crime they are supposed to have

CRIMES Afm PTTNISHMENTS. 199

eommitted, more terrible than the death awarded
them when we are satisfied as to their guilL
What ! * I am ignorant whether thou art guilty or
not, and I mitst proceed to put thee to the torture
in order to satisfy my doubts ; and^ if thou should-
est be innocent, I will never recompence thee for
the thousand deaths I have made thee su£»
fer instead of the one which, at the same time^
I was preparing for thee.' Every being shudders
at the thought. I shall not here rely upon the
&ct that St. Augustine, in his €ity of Gody has
protested against the practice. I will not say that
the Romans never tortured any but slaves ; and^
that Quintilian, recollecting that eVen slaves were
men^ revolted at such barbarity.

If there were but one country in the world that
had abolished the torture ; if there were as few
crimes committed in that country as in any other ;
if, besides, that country were more flourishing
since the abolition ; the one example is sufficient
for the rest of the world. Let l^ngland alone
instruct other countries, although she stands not
alone in this good work ; the torture having been
abolished with success in some other countries
—The question^ therefore, is at rest. Shall not
nations then who pique then^selves on their polite-
ness, pride themselves also upon their humani^r ?

901 A OOMMENTAinr OK

Will thej persist in an inhuman practice^ knereljr
because it i» the ciistom of the country ? ReaerVe
such crueky, if it be necessary to reserve it, fot*
those hardened villains who shall have as^asfdnated
the head of a fatnil^ or the father of his country ;
but do not sufierthe Uot of inflicting on a youtb^
"for trival faults, the same measure 6f punishment
that 3rou would decree to a parricide, to reinaki
on your country, I am ashamed of liaving toucfa^
ed upon this subject, after what has been said by
the authbr of Utih Esssay on Crimes and Puni8h«^
mehts-<— 1 ought to have rested satisfied widi
wishing, that mankind would often repero$e the
work of that friend to humanxlyw

CHAP. XlII,

^ eertain sanguinary, trikMnak:

WILL it be believtd that there existed fohn^
erly a SUTpft-eme tribunal more horrible than the In-
quisitibn ; and diatthat tribunal was established by-
Charlemagne f it <vas the judgment of Westpha-
Ha, dthertefee called the ♦* f^hemic Court.'^ The
si^erity, or rather, the truelty of this Court, was
carried so far as to ptmish every Salmon with
dearth, who brbke his fatst'duruig liie continuairce

CaSMMS AND PUMISQB€£NTS. SOI

of Lent The same^ law was also establi^ed in
Flanders and Franche Comt6 in the beginning of
the seventeenth century.

In the archive of a comer of the country, cal-
led St. Claude, situated among the most frightful
racks ci the county of Burgundy, are preserved
die prddeedings sentence, aiid account of the exe-
cution of a poor geniL* man, named Claude Guil-
Ion, who was beheaded on the twenty.eighth of
July 1629. Reduced to great indigence, and
prest by extreme hunger, he ate, on a fish day,
a morsel of Hcrae-flesb which he took from the
animal which had been killed in a neighbouring
field. Such was his crime. He was condemned
as a sacrilegious person. If he had been rich,
and had spent two hundred crowns in procuring
an e^ctrvvagttotfsli supper, while at the same time
he sitftrod die poor around him to die with hunr
^r, he wcrald bave beoi looked upon as a man
who fulffllod every" duty. The following is a
tsxpj of the sentence prooounced upon him.

^^ Having seen all the papers in the cause, and
heard the opmions of Doctors learned in the law,
we hereby declare the said Claude Gruillon duly
arraigned and convicted of having carried away
part of the flesh of a Horse killed in thb town^

C c

Sh3 A COMll£NTARY ON

of having caused the said flesh to be cooked 6tk
Saturday the 3d. of March, and of having eaten
of the same, &c.^'

What sort of Doctors must those Doctors of
law have been, who gave their opimons ? Was
it among the Topinambous or among the Hot-
tentots that these transactions happened? Hie
Vhemic Couit was much more terrible ; cohi-
missaries secredy appointed by this tribunal,
spread themselves all over Germany, re£eiving
accusations without the knowledge of the accused^
who were condemned without being beard ; and
frequently^ when in want of an executioner, the
youngest of the judges performed the office^ and
hanged the criminal himself.^

It was necessary^ in order to be safe from the
assassinations of this courts to procure letters of
exemption, and safe conducts from the Emperors,
and these were sometimes inefiectual. This
Court of murderers was not entirely broken np
till the reign of Maximilian the 1st. it should have
been dissolved in the blood of its members. The
Venetian Council of Ten was, by comparison
mth this court, a tribunal of mercy.

* See the excellent abridgment of the Cfaxonoloncid History anA
ind)]ic law of Gennany. Attn. 803,

CRIMfiS AND PUKISHHENTS. 203

CHAP XIV.

Of the difference between pojtitieal ani natural laws.

I CALL natural iaws^ those which nature lias
Rotated in all ages, and to every people, for the
imaintenance of the principles of that Justice which
nature, notwithstanding all that has been said
against it, has implanted in our hearts. Theft,
violence, homicide, ingratitude to indulgent par-
ents, perjury committed to injure, not to assist,
an innocent person^ and conspiracy against our
native country, are positive crimes, every where
more or less severely, and always jusdy punished.

I call ihoscj potiticallawsj that are made to meet
a present emergency, whether for the purpose of
strengthening the power of government, or the
prevention of future misfortune.

For example ; it is^prehended that the enemy
may receive intelligence fix)m the inhabitants of a
ci^ ; you shut the gates immediately, and you
forbid any one to pa9s the ramparts, on pain of
death.

im A OOmiBNTART OK

Or, when a new sect in religion, making a pa-
rade, in public, of its obedience to the sorereign
power, cabals in secret for the purpose of throw-
ing off that obedience ; and, under the pretext
that it is better to obey God than man^ and that
the reigning sect is loaded «i^ superstition, and
ridiculous ceremonies, wishes to destroy that
which is deemed sacred by the state^ you enact
the punishment of death against those, who by
dogmatizing publicly in favour of the ^ed^ run
the risk of instigatmg the people to revolt

Or, two ambitious men are disputing the pos-
session ci a throne : the most powerful succeeds;
he punishes with death the partisans of his weak-
er antagonist. Judges become the instrument of
the vengeance of the new sovereign, and the
supporters of his authority. Whoever had any
communication^ under Hugh Capet, with Charles
of Lorraine, ran the risk of his life unless he was
very powerful.

When Richard the third, the murderer of his
nephews, was recc^ized as king of England, a
jury condemned Sir William Collinbum to be
quartered ; his crime was the having written to a
friend of the Eiarl of Richmcm}, who was at that
time raising troops, and who afterwards reigned

GSIMBS AND fTOmraOSNTB. SOS

under the name of Henry the VII : two ridiculous
lines of Sir William*s writing were found, and they
sufficed to consign him to a horrible death. His-
tory abounds with similar examples of justice.

The law of retaliationf b also one of those laws
the authority of which is admitted by ajil nations
-^The enemy has hanged one of your bravest
officers, who held out in a little ruined fort against
a whole army ; one of their officers falls into your
hands ; he m^ be an estimable man for whtDih you
may have great regard ; yet, you hang him upon
the principle of retaliation-^-^You say, it is the law :
that is to say, because your enemy has sullied his
character by one outrageous crime, it becomes
necessary folr you to commit another.

All those laws, the result of a sanguinary policy,
exist but for a time r we easily see that they are
not founded on principle, when we observe them
to be temporary. They remind us of the necessi-
ty which, in cases of extreme famine, obliges men
to eat each other : ihry ceasfe to devour men as soon
as bread can be obtained.

206 A CCnOIENTAn OK

CHAP. XV.

&fthe crime of High Treason. Of Titus OoM ; and
of the death ofJiugusiine de Thou.

WE call a blow aimed at the government of
our country^ or against the sovereign, who repre-
sents it, High treason. It is looked upon as a spe-
cics of parricide ; and, therefore, die guilt of it
ought not to be extended by law to offences which
do not bear some analogy to that crime. For if
you consider a theft committed in a public build-
ing, an act of extortion, or even seditious words, as
high treason, you at once lessen the horror, which
the crime of high treason, properly so called,
ought to inspire.

In the ideas we form of great crimes there
should be nothing arbitrary. If a theft commit-
ted, or an imprecation uttered against a father, by
a son, be considered as parricide, you break the
bonds of filial love. The son, in future, will ne-
ver look upon his father but as an infuriated mas«
ter. Every thing overstrained in laws tends con-
stantly to their destructioo.

CRIMES 4NB PUNISHMBNTS. ^

In crimes of ordinary occurrence, the laws of
England are favourable to the accused ; but in the
«ase of high treason, more than unfavorable. The
exjesuit Titus Oates, being judicially examined
by the house of commons, and, having declared,
upon his oath, that he has told the whole truth,
subsequently accused the secretary of the duke
of York^ afterwards James II, and many other
persons, of the crime of high treason ; and his de-
clarations were received with attention. He at
first, swore before the privy council^ that he had
j^ver seen the secretary and afterwards, that he had
seen him. Nothwithstanding the infomialities
and contradiction accompanying his statement,
4he secretary was executed.

This same Titus Oates, and another witne^,
swore, that fifty Jesuits had conspired to assassi-
nate Charles the second ; and, that they had seen
the commissions, signed by father Olivdy gene-
ral of the Jesuits, for the officers who were to
command an army of rebels. The testimony of
those two men was considered as suffide^t to au-
thorise the tearing out of the. hearts of sever^ of
those they accused and the dashing them after-
wards in their faces. But, seriously speaking
ought the testimony of two witnesses to be consi-
dere4 as sufficient to convict any man whom they

908 A camdEirrAKY QBt

have a mind to destroy ? At least, one would sup-
pose, both ought not to be notorious villains neither
ought the £Eicts to which they swear to,^ be beyond
the bounds of possibility.

It is perfeedy clear, that if two of the most re-
q)ectable magistrates of the kingdom^ were to
accuse any individual of having conspired with
the muphti, for the purpose of circumcising the
whole council of state, the parliament, die members
of the court of exchequer, the archbishop, and the
doctors of Sorbonne ; it would be in vain Bar these
two magistrates to swear that they had seen the
letters of the muphti ; every one would suppose
that they were both deranged, and that no
credit was to be attached to their declaration. — It
was <|uite as extravagant to suppose^ that the
general of the Jesuits wasrai^ng an army ia
England j *as it would be to suppose, that the
muphti had sent over for the purpose of at-
tempting to circumcise the court of France* But^
unhappily, Titus Oates was beliicved; that
there might remain no species of atrocious foUy
tinthought of by the heart of man.

The laws c^ England do not consider persons
as involved iii the guih of any con^kacy^ who
may be privy to it^ and do not infisrm : they ooo-

CRIMES AXD PUNISHMENTS. 209

sider an informer to be as infamous, as the con*
spirator is guilty. In France, those who are pri.
vy to a conspiracy are liable to the punishment
of death, if they do not communicate their know-
ledge. Lewis XI, against whom conspiracies
were frequent, made this terrible law; wluch
would never have been thought of by a Lewb XII
or a Henry the IV.

vThis law not only obliges a worthy man to turft
informer^ and divulge a crime which by proper
advice, and firm conduct, he might prevent ; but,
it exposes him likewise to be punished as a calum-
niator ; nothing being more easy, than for con-
spirators to take measures to avoid conviction^

This was precisely the case of the truly res-
pectable Augustine de Thou, counsellor of state,
and the son of the only good historian of whom
France can boast, equal to Guicciardini in under-
standing, and perhaps superior in point of impar-
tiality. A conspiracy was formed, rather against
cardinal Richelieu^ than against Lewb XIII: the
object of the conspirators was not to betray France
to any enemy ; for the principal author of the plot
was the king's only brother, who certainly did not
design to destroy a kingdom to which be was there
the heir apparent ; there being between him a^d

210 A COmiENTARY C^

the throne no one but a dying brother, and two
children then ui the cradle.

De Thou was culpable neither in the sight of God
nor man. One of the agents of Monsieur^ihe king's
only brother, of the Duke de BouiUoriy sovereign
prince of Sedan, and of the grand Equerry d^Effiat
Cinq Marsy had couimunicated, verbally, the
plan of their conspiracy to De Thou, who went
immediately to Cinq- Mars, and did hiis utmost
to dissuade him from the enterprise. If he then
had informed against the conspiracy^ he would
have been destitute of the means of establishing
the truth of his allegation ; he would have been
overwhelmed by the denials of the heir apparent
of the Crown, of a sovereign prince, and of the
king's favourite ; as well as by the public execra-
tion. He would have exposed himself to the fate
of a vile calumniator. The chancellor Seguier
even admitted the fact I am endeavouring to es-
tablish^ at the time De Thou was confronted with
the grand Equerry. It was during the confronta*
tion, that De Thou, addressing hiiiiself to Cinq-
Mars, in the following words, which are reported
in the statement of the case, said ; ** Do you not
remember J Sir^ that not a day passed (wer our
headsy that I did not mention that business to
yoUf for the purpose of disstuuting you from iiV^

CRIMES AND PUNISHMENTS. 211

Cinq-Mars acknowledged that it was true. De
Thou deserved the thanks of his country rather
than death : such would have been the decision of
the tribunal of human equity. At least he deserv-
ed not death from Cardinal Richelieu; but human-
ity was not Richelieu's virtue. In this particular
case, surely, we may observe something stronger
than, summum Jus, summa injuria. The sentence
of death of this good man, declares his crime to
have been : ** The having a knowledge of, and
a participation in, the said conspiracies.^^ It does
not state also, because he did not inform • Hence
it would appear, that to discover that a crime is
about to be committed^ is to be criminal ; and
that one merits death, sometimes^ for being in
possession of eyes and ears.

The least we can say of such a sentence is, that
it was not dictated by justice, but was the act of
a few commissioners. The letter of this mur-
derous law was positive ; but, I appeal not only
to lawyers, but to all mankind, to say, whether
the spirit of the law was not perverted ?

013 A CXyMMENTABY OH

CHAP. XVL

Of Vhjt rtvealing of crimes fhefbre eommi$$ionj by

r^tgiou$ eonftsMon.

J AURIGNI and Balthazar Gerard, who assas-
ainated the prince of Orange, William I ; the
dominican Jacques Clement; Chatel Ravaillac, and
all the odier parricides of those days, confessed
diemselves before the commission of their crimes.
Fanaticism duiing that deplorable age, was car-
ried to such excess, that confession was but the
addition of an inducement to the perpetration of
villany : crime became sacred — ^because, confes-
sion was a holy sacrament.

Strada himself says, that " Jaurigni non ante
Jactnus aggredi sustinuit quam expiatam nexh
animam apuddomintcanumjacerdotem calestipane
firmaverii. Jaurigni dared not undertake that
action without having his soul, purged by con-
fession to a dominican friar, fortified by the holy
bread."

It appears from the answers to the interrogato-
ties put to Ravaillac, that this wretch, on quitting

CRIMES AND PUNISHMENTS. 3l3

the order of the FeuiUantSi and wishing to enter
that of the Jesuits, addressed himself to the Jes-
uit D* Aubigni ; and, after giving him an account
of several visions that he had seen, shewed him
a knife, on the blade of which a heart and a cross
were engraven ; and said to him : Tim heart sig-
nifiesy that the heart of the king ought to be mav-
ed to make war upon the Hugenots. Perhaps if
D' Aubigni had had zeal and prudence enough to
have informed the king of those words, and had
described the man who uttered them, the best of
kings might have escaped assassination. .

On the twentieth day of ^ugust, 1610, three
months after the death of Henry IV, while the
hearts of all Frenchmen were yet bleeding, the
attorney general St. Serving of still illustrious
memory, moved that all Jesuits should be requir-
ed to sign the four following articles :

1. That the council is superior to the pope.

2. That the pope cannot deprive the king of
Uny of his rights, by excommunication.

3. That ecclesiastics are as completely sub-
ject to the king^ as other persons.

4. That any priest who is apprised, by con Fes-
sion, of the existence of a conspiracy against the
king or states is bound to give notice of it to the
civil magistrate.

314 A COMMRNTART ON

On die 22d. of the same month, the parliamept
published a decree, iorbidding Jesuits to under«>
take the instruction of youth without signing the
fcH^going four articles : l)ut the court of Rome
was at that time so powerful, and that of France
so weak, that the decree was entirely disregarded.

One fact is also worthy of remark while noti-
cing the subject of confession^ which is, that this
very court of Rome which when the life of a so*
vereign was in question, was unwilling that con-
fessors should divulge what was revealed in con.
fession^ yet obliged them to reveal to the inquisi-
tion, the names of those priests whom females
should accuse in confession of having seduced, or
attempted to seduce them. Paul IV, Pius IV,
Clement VIII, and Gregory XV required such
communications. This was a very dangerous
snare for confessors and their penitents. It was
turning a sacrament into a register of accusations,
and even required sacrilege ; for, by the ancient
canons, particularly those of the lateran council
held under Innocent III, any priest divulging
of confession of any nature whatsoever, was liable
to be degraded and imprisoned for life. Thus
we find four different popes, ii\ the sixteenth and
seventeenth centuries, who order a sin of impu-
rity to be divulged, and yet do not permit the crime

CRDIBS AND PUiaSHMENTS. ^15

tf parricide to be revealed. A woman, confessing
herself to a carmelite friar, acknowledges or feigns,
that a cordelier has seduced her ; the carmelite is
bound to inform against the cordelier. But, let a
fanatical assassin, who believes he shall serve
God by murdering his king, consult his confessor
upon this very case of conscience ; — the confes-
sor is guilty of sacrilege, if he interpose to save
the life of his sovereign.

This absurd yet horrible contradiction, is one
of the unhappy consequences of that continual
opposition, which has subsisted for so many ages
between ecclesiastical and municipal laws. The
citizen found himself entangled on many occasi-
ons, either in the crime of sacrilege or that of high
treason ; and the distinctions of right and wrong
were buried in a chaos, from which they have not
yet emerged.

The confession of sins has been authorised, in
every age, by the practice of almost every nation.
The ancients accused themselves during the per-
formance of the misteries of Orpheus, of Isis, of
Ceres, and those of the island of Samothracia. —
The Jews confessed their sins on the day of so-
lemn expiation, and continue the practice to this
day. A penitent selects his confessor, who be-

916 A COMMEMTABY 01^

comes a penitent in turn ; and each of them alter-
nately receives thirty lashes with a whip while re-
citing the formula of confession, consisting of
thirteen words, the sense of which consequently
must be general.

None of these confessions were ever other than
general ; and, of course, could never serve as pre-
texts for those secret consultations, so often made
use of by fanatical penitents for the purpose of sin-
ning with impunity — a pernicious corruption of a
salutary institution. Confession^ the greatest
check to crime, became, in times of confusion and
licentiousness, an incentive to wickedness ; and,
it is more than probable, that for this reason, so
many christian communities have abolished a holy
institution, which could not but appear to them as
dangerous as it was useful.

CRIM&S AND IfXmSHIIENTB, 2i7

iPAP, XVII.

Of Counterfeiting monqf.

THE; crime of counterfeiting the coin of a coun.
tiy, is deemed^ and justly too, high treason in the
second degree : to rgb all the individuals of a state^
is to betray the state itself. But the question may
be asked, whether a merchant, who imports ingots
from South America, and converts them iatogood
money, be guilty of high treason ! and merit
death ? In almost every country, death h the pui>
nishment provided for this crimen-— yet, he has
robbed no one : on the contrary, he has increased
the circulation of specie, and done the state a ser-
vice. But he has ^ogs^ted to himself the right
of his sovereign ; he robs him, ii) taking to hi|n-
sclf the small profit that the king receives upon the
coinage. He has indeed coined good money ; but
his example holds out a temptation to others tq
coin bad. Stilly death is a severe punishment for
his crime. I once knew a lawyer, who wished
such criminals, as u^ful and ingenious hands, to be
condemned to work iu the royal mint, with fetter^
on their legs.

E e

US A GOimiMTAXr OK

J»

CHAP, XVII

OJ dowuitie theft.

IN some countries a trifling domestic theft
IS punished with death. Is not, I ask^ thb dis-
portionate punishment, as well dangerous to socie-
ty , as a temptation to cammit larceny ? Let a mas-
ter prosecute his servant for a theft of a small a-
mount ; upon the execution of the unhappy wretch,
society regards the master with horror : they then
feel, that nature and such laws are at variance^ and
consequendy the law will be, in future, unexecu-
ted.

What then is the result ? Masters who are rob-
bed, unwilling to encounter ;&fi&^r opprobrium^
content themselves with discharging a dishonest
servant, he steals from some one else, and finally,
becomM familiar with iniquity. The punishment
of death being die consequence of a considerable
robbery, as well as of a trifling theft ; he will na-
turally steal to as great an amount as pos^Ue ;
andy at last, will not hesitate at the commission
of murder in order to escape detection.

CRIMES AND i^DHiaHMENIV, 219,

But, if the punishment is prqxutianed to the^
crime ; if the domestic guiltj of tbeft be conckmn*
ed to labor on the public woiirs ; then^ a master
would not hesitate about his ccmviction, because
the public feeling would not scand in his way ; and
theft would be less frequent. Experience furnish-
es the lesson, that rigorous laws are productive of
crime.

CHAP. XIX.

OJ Suicide.

THE celebrated Du Ferger de Haurane^ Abbot
of St. Cyran, and generally considered as the foun-
der of Port-Royal, wrote, about the year 1608, a
treatise upon Suicide, now become one of the
scarcest books in Europe.

^* The decalogue, says he, orders us not to kill.
Self murder seems to be included in the precept as
well as the murder of our neighbour : therefore,-
if situations occur, in which it is lawful to kill oilr
neighbour, others may occur, in which suicide
becomes lawful."

^^ No one ought however, to attempt his own

^m A GOMMEMTABr ex

life, without first consukiiig hisi^easoiu Public «i-
tliortty, wliieh repMsents Gody may dispose of tnuf
lives. Human reason^ toeing a ray of the etemai
liglit, may also represent the reason of God^^'

St. Cyran extends this argument^ which, after
all, b but a sophism, to a great length. However,
I must confess, that when he descends to particu-
lar instances in support of it^ he is not easily an-
swered. ^^ A man says he^ may kill himself for the
service of his prince ; for the good of his coun-
try ; for the advantage of his family.''

It does appear that we could with justice refuse
our approbation to a Codrm or a Curtius. What
prince would dare to punish the family of a man
who devoted himself for his service ?— Nay, therQ
is no soveseign who would dare to leave them un-
rewarded. St. Thomas said the same thing be-
fore the time of St. Cyran. But it is not necessary
to have recourse to St. Thomas^ to St. Bonaven*
ture^ or Haurane, to feel, that a man who dies for
his country is entided to our highest commenda-
tion.

St. Cyran concludes, that that which it is praise-
worthy to do for others, it is lawful to do to our-
selves. The arguments of Plutarch, of Seneca,
and of Montaigne, on this subject, are well known,

as are those of m hivpidredptbef phUosoi^rs wb^^^
have wiiiUen m &.vqr of sukide. The subject
has been exhausted. I do not h^e {Hopose to
defend an adion which the law prghi}>ks ; but
neittor At old nor new testament forbid a b;^ to
shake off life, when k becomes insupportable. The
Romaii laws did not forbid self murder. On the
contrary, a law of Marcus Antoninus, which was
neVer repealed, provides : " If your father, or
your brother, unconvicted of any crime, shall,
from pain, through weariness of life, in despair,
or from madness, put an end to hislife^ his will
shall nevertheless be deemed valid ; or if he dies
intestate^ his heirs inherit acccnrding to law." *

Notwithstanding that humane law of our anci-
ent masters, we draw upon a hurdle, and pierce
with a stake, the body of the man who dies a vo*
luntary death ; and/ at the same time^ we ren-
der his memory infamous. We dishonor his fa-
mily as far as lies in our power. We punish the
son, because he has lost his father ; and the wi-
dow, because she is deprived of her husband.
We even confiscate the property of the deceased ;
which is, in fact, tearing from the living a patri-
mony which belongs to them. This custom, like
many others, is derived from our canon law ;

* Cod* 1. Ik bonit evrwfi qui HM vurtem^ &c. Leg, 3. §„ cod.

a» A OOMtENTAST OR

.wpiich dephres ofthe rites of burial, those who
commit saidde : The eonchision drawn from thb
ftct, is, that no one can inherit on earth the pro*
perty of a man, who is deemed to have fcnieited an
inhnkance in heaven^ The canon law, under
^BMWBAydepmntenHai assures us, that Judas com-
mitted a greater sin in hanging himself, than
when he betrayed our Saviour.

CHAP. XX.

Of a certain $pteie$ of muUilalian.

WE find in the digest, a certain law of the em«
peror Adrianf which decrees death as the punish-
ment of physicians who should make eunuchs,
either by castration, or by bruising the testicles.
The possessions of those who procured themselves
to be castrated, were also confiscated by this law.
Origen might have been punished under this law,
for having submitted tu tlic operation, in conse-
quence of a too literal interpretation of the passage
of St. Mathew : ** There be eunuchsy which have
made themselves ' eunuchs for the kingdom of
Heaven.

f M Ugm CtrmUam d$ ticariit.

The face of things was changed under succeeds ^
ing Emperors, who adopted the Asiatic luxury,
particukrly in the lower, .empire ; at Cmstantino-
pie eunuchs became Patriarchs, and even com«
manded the armies of the empire.

■

In our owR^ times, it b the custom, at Rome, to
castrate children in order to render them worthy
of being musicians to the Pope ; so that castrate
and musico delpapa^ now are synonimous. Not
long since^ signs were to be seen at Naples^ over
the doors of certain barbers^ oa which were writ*
ten m lai^ letters Qjui u eastrano marnngUoM*
mmte iptt^fj-— Boys castrated here in the very best
manner.

fti4 A comonmanr OR

CHAP XXL

Of the eonHseation eonstquent wpon aU the crimes

which have been mentioned,

IT is a received maxim of the bar, that, he
who /br/eits Rfcj forfeits Ms effects— 3. maxim
in greatest rigor in countries where custom holds
the place of principle. ITius, as we already have
remarked, the children of those who volunta-
riiy terminate their wretched days are doomed
to perish with hunger, nS if they were the chil-
dren of a murderer. So that, in every case, an
entire family is punished for the crime of an in-
dividual.

Thus the father of a family having been sen-
tenced to the galleys for life^ in an arbitrary maUr
ner, either for having illegally harbored a preach-
er*, or having heard a sermon preached in a ca-
vem or solitary place, the wife and children are
reduced to beggary. That system of Jurispru-
dence which consists in taking the bread out of
the mouths of orphans, and in giving to one man
the property of another, was unknown during

* i^ee the ediet of may 14th. 1734^ published at the aoUicitatioii, ^o^
under the inspection of ear^nal Richeliea.

CmifBS AND Pt^ilfiHMENT^. ^

the whole period of the existence of the l^oman
republic* Sylla first introduced it with his prb-
scriptionsi and his example^ one would think^
ought scarcely to authorise the piiactice. And,
indeed, this system which se^ms to have been dic-
tated by avarice and inhumanity, was not enforced
by Caesar, by Trajan, nor by the Antonines
whose names are still pronounced with respect by
every civilized nation. Under Justinian, confis.
cation took place only in cases of high treason.

It would setm that during the times of feudal
toarchy, princes^ atid feudal lords, not being very
rich, endeavored to augment their possessions by
the conviction of their subjects^ and intended to fiir-
nish themselves with a revenue to arise out of
crime. Law being, with them, entirely arbitrary,
and the Roman Jurisprudence unknown, cruel and
ridiculous customs prevailed. But, in modern times
the power kings is founded upon immense and
certain revenues, and their treasures do not re-
quire to be increased by the miserable remains
ofthe fortune of an unfortunate family which are
ceded, generally speaking, to the firstK)ne who re-
quests them— Should one citizen bt permitted to
fatten on the blood of another ?

In the provinces of France where the Roman.

F f

3S6 A OOimSNTARY ON

law is esbblitthedy confiscation does not exist, ex-
cept within the jurisdiction of the parliament of
Thoulouse. It does not prevail in some of the
provinces where the customary or unwritten feu-
dal lawf is in force as, for example, in the Bour.
bonnan, the provinces of Berri, Maine, Poitou^
and Bretagne, or, at least, real estate is exempted.
It was established at Calais formerly, but the En-
glish abolished the custom when they were in
possession of the place. It is a surprising fact,
that the inhabitants of the capital live under a much
more rigorous code of laws, than the small cities ;
so true is it^ that a system of jurisprudence is of-
ten established byfortuitous circumstances, with-
out regularity, without uniformity, like the cotta-
ges in a village.

Who would believe that in the year 1673, that
brilliant sera of France, the Attorney general
Omer Taian^ would have expressed himself, in full
parliament, on the subject of a young lady named
CaniilaCj in the following manner ? %

" In the XIII of Deuteronomy, God say^ : If
thou comest into a city where idolatary reigneth,
thou shalt surely smite the inhabitants of that city

t See Batler't Hone Jnridicx. Phil. edit, page 88.
i JwrtuU du Pa!ai9t Vol. 1. ptg. 444.

. ' •

i^th the edge of the swqrd, destroying it utterlft
and all that is therein. And thpu shalt gather, all
the spoil thereof into the midst of the street, and
shalt bum with fire the city, and all the spoil there-
of, for the Lord thy God ; and it shall be an he^p
forever ; and there shall cleave nought of the cur-
sed thbg unto thine hand,"

'^ In like manner, in the crime of high treason,
the children were deprived of their inheritance^
which became forfeited to the king. Naboth be-
ing prosecuted, fuia maledixerat regi^ king Ah^
took possesjsion of his effects. Davi4f being in*
formed that Meph^H>sheth had rebelled, gave all
his possesions to Ziba^ who brought him the
ww% : TuawU omnia qucfuerunt Mephibasketh*^^

The question to be determined was, who should
inherit the paternal estate of Mademoiselle de
Canillac ; an estate formerly forfeited by her fa-
ther, ceded by the king to a lord of the treasury,
and by him granted to the testatrix. In this (ause,
relating solely to the possessicms of a native of
Auvergne, a French attorney general quoted the
example of Ahab, king of a part of Palestine, who
confiscated the vine of Naboth, after assassina-
ting the owner with the sword of justice; an ac-
tion become even proverbial for its turpitude, and

fSS A COMMBinrARY ON

the application of which id intended to inspire
numkind with a horror of usurpation. Surely,
the storjr of the vine of Naboth bore no analogy
to the question about the property of Mademois-
cile de Canillac. The murder of Mephiboshedi
the grandson of Saul, and son of Jonathan, the
friend andprotector of David, and the confiscation
of his goods, had not the least affinity with the will
of that lady.

With this sort of pedantry, with this folly of
quoting matters foreign to the subjec|, with such
ignorance of the first principles of human nature,
with such prejudices ill conceived, and worse ap-
plied, has jurisprudence been commented on by
men who have enjoyed reputation in their profes.
sion. 1 leave it to my readers to supply reflec-
tions it would be superfluous to insert.

CRIMES AND PUNISfflifBNTS. fi39

CHAP. XXII.

Of criminal proceedingSy and rf mme &ther forms of

procedure.

IF it should ever happen in France, that some
of our too rigorous customs be softened by the
laws of humanity, without, however, affording
greater facility to crime, I am inclined to think
that a reformation will take place in those proceed-
ings, in the enactment of which our legislators
appear to have been influenced by too ri^d a zeal)»
Our criminal law, in many respects, seems direc-
ted entirely to the destruction of the accused. It
is the only uniform system of law in the whole
kingdom, and it^ ought to be as terrible to the
guilty, as favorable to the innocent. In England,
mere false imprisonment, is a g^und fbr recover-
ing damages from the first minister of state, if he
orders it ; but, In France^ an innocent man who
has been immured in a dungeon, who has under-
gone the torture, has no consolation of that kind
to hope for, no one to look to for damages ; and
he returns to society with a ruined reputation.
Why ? Becaiise his joints have been dislocate^-r-
fhaty shouldexcite pity, and inspire respect. The

discovery of crimes, it is said, requires severity :
it is the war of human justice agunst iniquity-—
But, even in a state of war^ there is something like
generosity and compasoon. The soldier b Com.
passionate— Shall the lawgiver alone encourage
the exekcise of barbarity ?

Let us here compare the Roman method of
conductbg criminal proceedings with oiur own.
With them, the witnesses were publicly examined
in the presence of the accused, vfUo had the pri^
vilege of cross-examining them, either by him-
self or his counsel. -This method of proceeding
was frank and noble ; it was full of Roman mag-
nanimity.

With us^ every thing is transacted in secret. A
single judge, attended only by his clerk, hears all
the witnesses, who are examined separately.
This method^ established by Frands Ist. wais con-
firmed by the commissioners appointed to ar-
range and modify the ordinancesof Lewis-XI V .
1670 ; its confirmation was owing to a mistake.
Th^y took it into their heads in reading the pode
de Testibus^ that the words, testes intrare juduni
siteretumf* meant^ that witnesses were examined in

^ See BwnkTt Tit yi,.iurt Q. deii^famialiMB.

CRIMES AND PUNOBIfENTS. , 331

private; but secretumhcK means the Judge's
chamber. Intrare secretum^ if intended to* signi-
fy private^examination, would n<A be Latin. A
solecism^was the foundation of this part of our
Jurisprudence.

The witnesses, in criminal ca^es, are general-
ly the dregs of the populace, whom the Judge^ du-
ring private examini^ion, may make say whatever
he pleases. These witnesses are examined a se-
cond time, but still privately ; and, if, upon their
second examination, they retract what they said
during the first, or vary in essential circumstan- '
ces, they are proceeded against for perjury. So
that when a simple but honest man unable to ex-
press himself with clearness, but with every dis-
position to tell the truth, recollecting that he has
said too much, or too little, that he has misunder-
stood thejudge, or that the judge has misunderstood
him, retracts what he has said, from a principle of
justice, he is punished as a villian. He is forced to
adhere to false testimony to avoid the consequen-
ces of perjury.

The accused, if he flies, exposes himself to cer-
tain conviction ; and this whether his crime be
clearly proved or not. Some \mters on Jurispru-
dence, indeed, have niaintained, that ccmtumacy

231 A OOBlMENt AUY M

ought not alone to be a sufficient ground for con«
viction ; but, that the charge ought to be fully-
proved. But others, less enlightened, though, per-
haps, more generally foUowedy are of the contra-
ry opinion : they advance the doctrine, that the
flight of the ' accused is full proof of his crime —
that the contempt exhibited by him for justice, in
refusing to appear, deserves the same degree of
punishment that virould follow a solemn convic-
tion. Thus it depends, upon the sect of lawyers
to which the judge may happen to belong whether
an innocent man be convicted or acquitted.

One other great abuse also prevalent in French
Jurisprudence is, that the reveries, and errors^
sometimes having the cruellest tendency, of aban-
doned men, who have undertaken to give publi-
city to their sentiments on legal matters, are con-
sidered as law.

Two c»'(Unances, during the reign of Lewis
the 1 4th, were promulgated, which are in force
throughout the kingdom. In the first, which
relates entirely to civil proceedings, the judges
are forbidden to give judgment, in a civil suit,
by default, if the demand is not proved ; but in
the second, regulating criminal cases, contains no
provision that the accused^ if no evidence be pio-
duced against him, ishalL be dischai^d. ^-^^

CRIMES A19D PdNISHMENTS. 233

traordinary fact ! The law .provides thaUhe from
whom a trifling sum of money is demanded, shall
not be adjudged to pay it without the debt is esta-
blished — but when life is in question, it 19 a moot
point, whether he ought not to be convicted if
contumacious, although the crime be not proved*

Suppose the accused withdraws himself from
justice :• you proceed to seize and take an inven-
tory of his property ; you do not even wait un-
til the proceeding is finished. You have as yet
no evidence of his crime : you do not know
whether he is innocent or guilty ; and you com-
mence proceedings by forcing upon the defendant
immense unnecessary expense.

It is the penalty, you say, of his disobedience
to the Warrant issued against him — But; I ask^
is not the extreme rigor of your criminal practice,
the cause of his disobedience ? A man is ac-
cused of a crime, you proceed to immure him im-
mediately in a frightful dungeon ; you suffer no one
to have communication with him ; he is loaded with
fetters, as if already convicted. The witnesses
who testify against him are examined in secret;
and in his absence. He sees them only for a mo-
ment at the confrontation ; and then, before he has
heacd their testimony, he is bound immediately

to stase his objections to the witnesses, and at the

G g

054 A COMMENTAKT OK

sane time, to name the witnesses in sop*
portof those objections ; and he ha^ not the right
to crossexamine them after the reading of their
testimony. If, however^ he should convince the
witnesses, that they may hate exaggerated some
facts^ omitted others, or have been mistaken in
some of the particulars they have related, the
fear of punishment will induce them to per^st in
peijury. And, if circumstances admitted by the
accused when interrogated, be differently related
by the witnesses, that alone will be sufficient
grounds for ignorant or prejudiced judges ta
condemn an innocent maur

What man is there that such a proceeding
would not terrify? Where is the innocent man
who qan be sure of acquittal ? O judges ! are you
desirous that the accused should not fly ? — ^Fur^
nish him with the means of defence.

The law seems to oblige the magistrate to con-,
duct himself towards a prisoner, rather as his
enemy^ than as his judge. Thi& judge, how-
ever, possesses the power of confronting the ac-
cused with the witnesses, or omitting it altoge-
ther*, — Why is so essential a tMng as confron-
tation suffered to be optional ?

• JB » bettin est cnfnmiez, (And, if necesgarv, confront tfeem.) m%
the Otdtnance of 16/a. Bt. i. tit XT. '

CRIMES AND PUNISHMEIH:^. 335

The practice adapted, however^ is, in this re..
q>ect, contrary to a law which is equivocal ; there
is alway$ a confrontation; but the judge does
not always confront all ti|e witiiesses, he Omits of*
ten those whose statements appe^ to bim to be
unimportant. Such a witness, though he say
nothing against a i^an in the body of his testimony,
may, upon confrontation, testify in his favor« The
witnes^ess also may have forgotten circumst^Kres
favorable to the accused i the judge at first may
not have felt the weight of those circumstances^
and may not have reduced them to writing. It
is, therefore, extremely important that ali the

•

witnesses should be confronted with the accused,
and that such confront^ition be not cptioiia} v^ith
the judge.

When it is a criminal charge^ the accused can-
not have the benefit of counsel to defend him ; he
flies — a step to which every maxim of law incite3
him — But;^ h^ may be convicted in Ihs absence,
whether the prime with which |ie is charged be
proved or not. Strange doctrine I If a pivil suit
to recover a sum of money be brought against a
inan, a judgment by default cannot be obtained
without proof of the debt-rryet, if a niatter involi^
ving his life occur, he may be sentenced in his
al^sence^ without a necessity for a shadow of evi*

236 A GOMMENTARY ON

dencc to substantiate his crime. The law then
holds money in more estimation that it does life ?
O ye Judges } consult the pious Antoninus^ and
the good Trajan — they suffered not the absent to
\yc condemned, f

Your laws allow an extortioner, or a fraudulent
bankrupt the benefit of counsel^ and very often de-
ny it to one who may be an honest man. If there
can be shewn one single case^ where innocence
has been made to triumph through the exertions
of an advocate^ the injustice of depriving any one
of the advantage is manifest.

The president Lamotgnon said, in speaking a-
gainst this law, " that the advocate, or counsel,
v/hich it was the practice to assign to the accused,
was not a privilege granted by the ordinances, nor
by the laws of the kingdom — it was a privilege
derived from the law of nature, a law more an-*
cient than any human institution. Nature, said
he, points out to every man the necessity of hav-
ing recourse to the talents of others, when he finds
himself in a situation where they are indispensible
to his safe guidance, and he feels that he cannot
conduct himself; he seeks assistance when un-

I pig. X. 1. tit. aleahiertibufp and L 5. tit. rft?/ww*. '

■ m

dOMBS AND PONISHMENTS. dST

lable to defend himself with his own strength. Our
ordinances have taken away from accused persons
so many advantages, that the least we can do, in
justice, is to preserve those few that remain to
them, inviolate ; and most particularly the benefit
of counsel. And, if our proceedings be compa-
red with those of the Romans, and other tiations,
it will be found, that in no nation are they ^ rigo-
rous, as in France, particularly since the ordinance
of 1539. t

The proceedings are still more rigorous since
the ordinance of 1670. They would have been
much less so, if all the commissioners had thought
like Monsieur de Lamoignon. The parliament of
Thoulouse has a singular degree of accuracy in
weighing the testimony of witnesses. In other pla-
ces demi-proofs are admitted, which is at most
admitting doubts, there being no such thing as
demi-ti'uth ; but at Thoulouse they admit of qqar-
ters and eighths of a proof. We may, for exam- .
pie, look upon hearsay, as a quarter, upon another
hearsay, more vague still, as an eighth ; so that
eight rumours; which are but the echo of un-
founded report^ may become a corpplete proof ;
and upon such evidence as this it was, that John
Calas was sentenced to the wheel. The Roman
law reqijired proofs to be luce meridiana clariores.

t Proves verbal de I'jrd p. 163.

23$ ▲ COUHSSTAW W

CHAP. xxm.

The idea of a reform suggested.

THE Magistracy is ia itself so respectablCi
that the only country in the world where the office
h venijil, sincerely desires a deliverance froDt the
evil resulting from this custom. They anxious*
ly desire to see justice dispensed by the advocate^
who has contributed by his industry, by his wrir
tings, and by his eloquence to its defence and
sup^rt. Perhaps we might then see a regulav
system of Jurisprudence arise, the result of en-
lightened exertions.

Shall the same cause be forever decided one
way in the provinces and another in the capital ?
must the same man be always right in Britanny
and wrong in Languedoc ? nay^ there are as many
systems of Jusprudence as there are cities ; and in
the same parliament the maxims of one chamber?
are not the maxims of another.

To shew the astonishing contrariety of law ii>

the same kingdom, we have only to state, that iq

Paris, a man who has been domiciled in the city

- a year and a day, becomes a citizen. In Frqncke-

OfilM^ ANP PUNISHMENTS. Q39

ComptCj a free man, who, during a year and a
day, has inhabited a house held in Mortmain, be-
comes a slave : his collateral relations clannot in-
herit the property he may have acquired elsewhere;c
and his children are deprived of their inheritance,
if they have been a year absent from the house in
which their father died.

When limits are to be determined between the
civil law and the ecclesiastical authority ,^ what
endless disputes ensue ! Who can point out those
limits ? Who can reconcile the eternal contradic-
tions of the treasury and the bench ? In short, why,
iiv certain countries, do we find sentences which
do not state the facts and reasons upon which they
ait grounded ? Are they ashamed to avow their
reasons for rendering judgment. And why do
not those who condemn in the name of their sove-
reign, present their sentences of death for recon-
sideration to him, before they are put in execution!

Look around us where we will, tve find no-
thing; but a confused scene of contradiction, hard-
ship, uncertainty, and arbitrary power. Thence
arises our desije to render more perfect the laws
upon which our lives and fortunes depend.

THE EJVD.

THE NEW YORK PUBUC LIBRARY

RBPBRSNCB DBPARTMBNT

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^' t '.■ . j taken from the Buildiai

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