Skip to main content

Full text of "An Essay on Crimes and Punishments"

See other formats


Google 



This is a digital copy of a book that was preserved for generations on Hbrary shelves before it was carefully scanned by Google as part of a project 

to make the world's books discoverable online. 

It has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one that was never subject 

to copyright or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books 

are our gateways to the past, representing a wealth of history, culture and knowledge that's often difficult to discover. 

Marks, notations and other maiginalia present in the original volume will appear in this file - a reminder of this book's long journey from the 

publisher to a library and finally to you. 

Usage guidelines 

Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. Public domain books belong to the 
public and we are merely their custodians. Nevertheless, this work is expensive, so in order to keep providing this resource, we liave taken steps to 
prevent abuse by commercial parties, including placing technical restrictions on automated querying. 
We also ask that you: 

+ Make non-commercial use of the files We designed Google Book Search for use by individuals, and we request that you use these files for 
personal, non-commercial purposes. 

+ Refrain fivm automated querying Do not send automated queries of any sort to Google's system: If you are conducting research on machine 
translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the 
use of public domain materials for these purposes and may be able to help. 

+ Maintain attributionTht GoogXt "watermark" you see on each file is essential for informing people about this project and helping them find 
additional materials through Google Book Search. Please do not remove it. 

+ Keep it legal Whatever your use, remember that you are responsible for ensuring that what you are doing is legal. Do not assume that just 
because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other 
countries. Whether a book is still in copyright varies from country to country, and we can't offer guidance on whether any specific use of 
any specific book is allowed. Please do not assume that a book's appearance in Google Book Search means it can be used in any manner 
anywhere in the world. Copyright infringement liabili^ can be quite severe. 

About Google Book Search 

Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers 
discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web 

at |http : //books . google . com/| 



.>-.«'■ 



•r 



AN 



I 






ESSAY 



ON 



CRIMES AND PUNISHMENTS, 



_ J -.*■,, _ > . 



■<-<.i^> ■'.>- •> 



TRJiJsrSLATED FROM THE FTALULN' 

op 

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,. 

OF 

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 



B 



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^. 



^.' / 



AN 

' ESSAY 

ON 

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. 

A 

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 



V 



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. 



3= 



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 

E 



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^. 



r 



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. 

F 



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^ . 



f 



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- 

G 



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 

I 

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 



1^ 



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- 

H 



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- 

I. 

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, 

1 



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. 



n 



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 



^z 



rM 



^'"^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* 



/ 



I 



K 



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 



V. 



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 

L 



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. 

I 

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 

M 



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 

N 



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. 



V 



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, 

O 



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- 

r 

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 

a 

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. 









Q 



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^ 



f 

t 



\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. 



V 



/ 



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 

T 



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. 



I 



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- 

U 



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 

X 



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 

r 

Y 



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 

Z 



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. 



3B 



€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** 

I 

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 

Dd 



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 

.1 



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 

I 

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. 



#i 



THE NEW YORK PUBUC LIBRARY 

RBPBRSNCB DBPARTMBNT 



Oil' This book U ander no oironmatanoel to bo 

^' t '.■ . j taken from the Buildiai 









M 






VI ■ -. ■, 












•* . 






J~ ^ 
















Viiv 






kV.', '■' 












.Hi -^ ■ 














i--~.-.,.,i • ■ ■ 







i