A N

E S . S A Y

O N

GRIMES and PUNISHMENTS,

B Y

The Marc^uis BECCARIA of Milan.

WITH A

C O M M E N T A R Y

BY

M. D E Y O L T A I R E;

A NEW EDITION CORRECTED.

J?i rehts quibufcunque dtfficUiorlhus non expeEandum, uf quh
ftrnul, & ferat, & metat, fed fr<eparatione o^us eft, ut fst
gradiis maturefcant. Bacon.

EDINBURGH:
Printed for Alexander Donaldson,
And fold at his Shops in London and Edinburgh.
M.DCC.LXXYIII.

•/V

^ m. I

P R E F A C E

G F THE

T' R A N S L A T O R.

I^ENAIj LA/WS, fo confiderable a'
part oi- every fyflem of legifiatlon,
ana of fo great Importance to the happi--
nefs, peace and feciirity of every mem-
ber of focietVg are ftill fo imperfect, and'
are attended with fo many unneceiTary
circiimffances of craeky' in all nations,
that an attempt to reduce them to the"
llandard of reafon rnufl be.interefting to
'all mankind.^ It is not furprifing, then,,
that this little book hath engaged the at-
tention of all ranks of people in every
part of Europe. It is now about eighteen
months fmce the firfl publication ; in'
which time it hath pafied no lefs than fix
editions in the original language ; the~

a.- 2- , thii::di

PREFACE.

third of which was printed within fix
months after its firft appearance. It hath
been tranflated into French ; that tranf-
iation hath alfo been feveral times reprint-
ed, and perhaps no book, on any fubjetly
was ever received with more avidity,
more generally read> or more univerfally
applauded.

The author is the Marquis Beccaria^
of Milan. Upon confidering the nature
of the religion and government under
which he lives, the reafons for conceal-
ing his name are obvious. The whole
was read, at different times, in a fociety
of learned men in that city, and was pub-
lifhed at their defire. As to the tranlla-
tiori, I have preferved the order of the
original, except in a paragraph or two,
which I have taken the hberty to reilore
to the chapters to which they evidently be-
long, and from which they muft have been
accidentally detached. The French tranf-
lator hath gone much farther; he hatk
not: only tranfpofed every chapter, but

every

"If

P R E F A C K.

every paragraph in the whole book. Bat
in this, I conceive, he hath aiTumed a
right ^Yhich belongs not to any tranflator,
and which^ cannot be juftified. His difpo-
fition may appear more fyftematical, but
certainly' the author has as undoubted a
right to the arrangement of his^own ideas
as to the ideas themfelves ; and therefore
to deftroy that arrangement, is to pervert
Jiis meaning, if he had any meaning in
his plan, the contrary to which can hard- -
ly be fupppfed.^

With regard to the Gommentary, at-
tributed to Monf. de Voltaire, my only
authority for fuppofing it his, is the voice
of the public, which indeed > is the only
authority we have for moft of his works.
Let thofe who are acquainted with the
peculiarity of his manner judge for them-
felves.-

The facls above mentioned would pre- ■
elude all apology for this tranflation, if
any apology were neceffary, for tranilat-
ing into our language a workj which,

^ fromi

P R E F A C E.

from the nature of the fubjed, mufl be'
interefliDg to every nation ; but mufl be
particularly acceptable to the Enghfli,
from the eloquent and forcible manner
in which the author pleads the caufe of
liberty, benevolence, and humanity. It
may however be objeded, that a treatife
of this kind is ufelefs in England 5 whercj-.
from the excellence ©f our laws and go»
vernment, no examples of cruelty or op-
preffion are to be found. But it muft;
alfo be allowed, that much is ftili want-
ing to perfed our fyftem of legiilation ;
the confinement of debtors, the filth and
horror of our prifons, the cruelty of jail-
ors, and the extortion of the petty officers
of juftice, to all which may be added the
melancholy refledion, that the number
of criminals put to death in England i^
much greater than in any other part of
Europe, are confiderations which will fuf-
ficiently anfwer every objedion. Thefe
are my only reafons for endeavouring to
dilfufe the knowledge of the ufeful truths

contained

PRE F A C E. vl

contained in this little eiTay ; and I fay,
with my author, that if I can be inftru-
mental in refcuing a fmgle vi(!R:im from
the hand of tyranny or ignorance, his
tranfports v/iW fufficiently confole me for
the contempt of ail mankind.

C O

C "O. N ' T E N T S.

INTRODUGTION, Page 13

Chap. I. Of the Origin of Punipments^ 17
11. Of the Right to puni/Jjj 19
IIL Gonfequences of the foregoing Prin-
ciples^ , 22

IV. Of the Intefpretation of Laivs^ 24

V. Of the Obfcurity of Laivs^ 29

VI. Of the Proportion between Crimes
and PuniJhmentSi 3 2

VII. Ofejiirfiating the Degree of Crimes ^ 3 (>
Vni. Of the Di vifion of Crimes, 3 8
1%. Of Honour, . 42

X. Of Duelling J " 46

XI. Of Crimes -which difurh the puh—
lie Tranquillity, 48'

XII. Of ike Intent of PunifhmentSy 51-
XIIL Of the Credibility of Witnefes^ 52

XIV. Of Evidence and the Proofs of a
Crime, and of the Form of judgment, 56

XV. Of fecret Accufations, 60

XVI . Of Torture, 63
XVLI. Of pecuniary Punifhments, 7 ^

XVIII. Of Oaths, _ 76

XIX. Of the Advantage of immediate
Punijhrnent, 7 8

Chap,

lo C O N T E N T S.

Chap. XX. Of Abls of Violence,

XXI. Of the Punifhment of the Nobles, 84

XXII. Of Robbery, 87
XXIIT. Of lifamf, confdered as a Pu-

niffrinent,

^ XXIV. Of Idlenefs, 9 1

XXV. Of Banifbment, and Cofffcation , 9 2

XXVI. Of the Spirit of Family in
States', 95

XXVIL. Of the Mildnefs of Punifj- '

ments, lOO-
XX VIIL Of the Punifirment of Death, i o 4;
XXiX.' Of Imprifonment, \i6

XXX. OfProfecntionandPrefeription, 1 1 9,

XXXI. Of Crimes of d'lfficult Proof 1 23
XXXir. Of Suieide, 129
XXXIIi. Of Smuggling, 134
XXXW. Of Bankrupts, 137

XXXV. (f SanBuaries, 1 41

XXXVI. Of Rewards for apprehend-^
ing, or killing^Criminals, ^44

XXXVII. Of Jttempts, Accomplices, ^
and Pardon, 146

XXX Vin. Of fuggejlive Interroga" .

tions, 149':
XXXIX. Of a particular Kind of

Crimes, 1 5 1

XL. Of falfe Ideas of Utility, 1 53^

C O N-T E N T S. II

Chap. XLI. Of the Means of preventing

Crimes, 1^6

XLIL Cf the Sciences.) 159

JLIII. Of Magiftrates, 164

XLIV. Of ReiuardSi 1^5

' XLV. Cf Education f 1 66

XLVL Of Pardons, 167

,XLVn. Conclufion, i6c)

A Commentary on the Book of Grimes
and Punishments.

Chap. I. The Occafwn of this Cotmnentary, 171
n. Of PunifomentS) - 174

III. On the Punifhrnent of Heretics, 176

IV. On the Extirpation of Herefy, 180

V. Cf Profanation, 183
• VI. Of the Indulgence of the Romans

in Matters of Religion, I 88

- VII. the Crime of Preaching; and
of Anthony, „ i^i

VIII. - 37)^ Hiflory of Simon Morin, 1 9 1;;

IX. Of Witches, 19B

X. On the Punifloment cf Death, 101
_XI. On Death Warrants, 204
XII. Qn Torture, 206
Xni. Of certain fanguinary Trihii-

Mals, 208

Ch-A p..

12 CONTENT S,

Chap. XIV. On the Difference between po-
litical and natural LanvSy 211

XV. On the Crime of Hlgh-'Treafon, .
On Titus Oates, and on the Death

of Aiigiiflin de 'ThoUj 214

XVI. On religious Confejjtony 219

XVII. Of falfe Money, 223

XVIII. On .domefiic Theft ^ 224

XIX. On Suicide, 225

XX. On a certain Species of Mutila-
tion, 228

XXI. On Confif cation, 229

XXII. On criminal Procedure, and
other Forms, 233

XXIII. The Idea of Reformation, 237

INTRO-

INTRODUCTION.

IN every human fociety, there is an effort
contmuaily tending to confer on one part
the height of power and happinefs, and to re-
<5uce the other to the extreme of weaknefs and
mifery. The intent of good laws is to oppofe
this effort, and to difFufe their influence univer-
fally and equally. But men generally abandon
the care of their moft important concerns to
the uncertain prudence and difcrefK^ of thofe,
■whofe intereft it is to rejeft the beft and wifeft
inftitutions ; and it is not till they have been
led into a thoufand miftakes, in matters the
moll efTential to their lives and liberties, and
are weary of fuffering, that they can be indu-
ced to apply a remedy to the evils with which
they are opprefled. It -is then they begin to
conceive, and acknowledge the moft palpable
truths, which, from their very fimplicity, com-
monly efcape vulgar minds, incapable of analy-
frng objefts, accuftomed to receive impreffious
witliout diflinaion^ and to be determined rather

-B hj

24

INTRODUCTION.

by the opinions of others, than by the refdt of
their own examination.

If we look into hiflory we fhall find, that
laws which are, or ought to be, conventions be-
tween men in a flate of freedom, have been, for
the mofl part, the work of the paflions of a few,
or the confeqiiences of a fortuitous or temporaf-
ry neceffity; not didated by a cool examiner of
hamaii nature, who knew how to colleft in one
point the aftions of a multitude, and had this
only end in view, the greatejl happinej's of the
greatejl number. Happy are thole few nations,
who have not waited till the flow facceffion of
human viciffitudes fhould, from the extremity of
evil, produce a tranfition to good ; but, by pru-
dent laws, fiave facilitated the progrefs from one
to the other ! And how great are the obliga-
tions due from mankind to that philofopher,
who, from the obfcurity ©f his clofet, had the
courage to fcatter among the multitude the feeds
of ufeful truths, fo long unfruitful !

The art of printing has diffufed the know-
ledge of thofe philofopbical truths, by which the
relations between fovereigns and their fubjefts,
and between nations, are difcovered. By this
knowledge commerce is animated, and there has
Sprung up a fpirit of emulation, and indullry,
■ worthy

I

IN TROD U C T I O N.

worEliy of rational beings. Ttiefe are .the pro-
duce of this enlightened age-, biit the cruelty of
pur-ifliments, and the irregularity of proceeding
m erimiiaal cafes, fo principal a part of the legil-
ktion, and fo much neglefted throughout Eu-
rope, has hardly ever been called in queflion.
Errors, accumulated'- through many centuries,
have never been expofed by afcending to gelie- ■
ral principles 5 nor has the force of acknowled-
ged truths been, ever oppofed to the unbounded-
licentioufnefs of ill-direfted power, which has
continually produced fo many authorized exam-
ples of the moft unfeehng barbarity.. Surely,
the groans of the weak, facrificed to the cruel^
ignorance and indolence of the powerful i the
barbarous torments lavhlied and multiplied with
ufelefs feverity, for crimes either not proved, or
in their nature impolTibls,,; the filth and horrors
of a prifon, increafed. by the. moft cruel tormen-
tor of the miferable, uncertainty, ought to have
rouzed the attention, of thofe, whofe bufinefs is
to direft the opinions of mankind.

The immortal Montefquieu has but flightly
touched on this fubjeft. Truth, which is eter-
nally the fame, has obliged m.e to follow the
fteps of that great man ; but the ftudious part,
of mankind, for whom I write, will eafily di-

B. 2 ftinguifli .

1-6

introduction:

.ftmguiih the fuperftru^lure from the foundation*
I ftiali be happy,, if, Avith him, I can obtam the
fecret thanks of the obfcare and peaceful difd-
ples of reafon and philofophy, and excite that
tender emotion,, In which fenfible minds fym*
pathlze with him, who pleads the caufe of hu^
miinity.

A N

E S S A: Y<'

O N

G.RiM-ES AND FUNISHMENTS,^^

C H A- p;, L ^.^

Gf the Origin of Funijloments, -

EA W S are the conditions imder which
men, naturally independentj united them-
felves. in fociety, . Weary of living in a continual
flMe of war, and of enjoying a liberty which
became of little value, from the* uncertainty of
its duration, they facrificed one part of it to
enjoy the reft in peace and fecurity. - The funi
of all thefe portions of the liberty of each indi-
vidual conftituted the fovereignty of a nation;
and Vv^as depofited in the hands of the fovereigiTj:
as the lawful adminiftrator. - But it was not fuf-
fiGient only to eftabiifli this depofite | it was alfo

B .3 neGelHiry

An ES^SAY on

BecefTary to defend it from the ufurpatlon of
each individual, wh^ wilL always endeavour to
take av;ay from the mafsy not only his own por-
tion, but to encroach on that of others. Some
motives, therefore, that flrike the fenfesj were,
neceffary to prevent the defpotifm of each indi-
diial from plunging fociety into its former chaos, ,.
Such motives are the punifliments eftablilhed-
againfl: the infraftors of the laws. I iay, that
motives of this kind are neeefUfry j becaule ex-
perience fliews, that the multitude adopt no
eftabiifhed principle of conduct 5 and becaufe, ,
fociety is prevented from approaching to that
di/Toludon (to which, as well as all other parts
of the phyfical and moral world, it naturally
tends) only by motives that are the. immediate
obje61s of fenfcj and which, being continually
prefented to the mind, are fufHcient to counter-
balance the. effe6ls of the paffions of the indivi-
dual which oppofe the general good. Neither
the.power, of eloquence, nor the fublimefl: truths,
are fufficient to reflrain, for any length of dme, ,
thofe. pallions which ajre excited by the lively
iiiirprcffioE. of prefent objeils,.

€.HAP.

.iMEs and Punishments.

G H A Ps lis <

Of the Right to punijh. ,

EVERY punifliment, wHch does not ariie ■
from abfolnte neceffity, .fays the great Montef-^
qiiieu^ is tyrannical. A^propofition which may
be made more- general, thus. Every aft .of an-?
thority of one man over another, for which there .
is not an abfolnte neceffity, is : tyrannical. It is
upon this, then, that the fovereign's right to '
punidi crimes is founded ; that is, .upon the ne-
ceffity of defending the public liberty, entrulled
to his care, from, the uforpation of individuals \. ,
and punidiments are juft.in proportion as the
liberty, preferved by the fovereign, is faaxd and .
valuable..

Let us confult the human heart,; ..and there
we lhall find the foundation of the fovereign's
right to, punifh ; for no advantage in moral po-
licy can be lafting, which is not founded on the
indelible fentiments of the heart of man. What-
ever -law- deviates from this principle will always
meet with a refiflance, which will deftroy it in
the end , /or tke.fmaiki>, force., continually ap-

20

An E S'S a Y on

plied, will overcome the moft violent motloas
communicated to bodies.

No man ever gave up his liberty merely for -
the good of the public. Such a chimera exifts
only in romances. Every individual wiflies, if
poffible, to be exempt from the compadls that
bind the reft of mankind.

The multiplication of mankind, though flowj
being too great for the means which the earthy
in its natural ftate,, offered to fatisfy neceffiries,
which every day became more numerous, ob-
liged men to feparate again, and form new fo-
deties. THcfe naturally oppofed the firfr, and ■
a ftate of war was transferred from individuals
to nations.

Thus it was neceffity that forced men to
give up a ^part of their liberty; it is certain,
then, that every individual would chufe to put
into the public llock the fmalleft portion poiTiblej
as much only as was fufficient to engage others ^
to defend it. The aggregate of thefe, the fmalleft .
portions poffible, forms the right, of punilhing :
all that extends beyond this is abufe, not ju-
llice.

Obferve, that ^by juflice I ' underftand no- -
thing more than that bond, which is neceifary
to keep the intereft of individuals united 5 with-

om :

Crimea and Punishments. 21

out which, men would return to their origlnaL
ftate of barbarity. All punllliments, which ex-
ceed the neceffity of preferving this bond, are in
their nature unjuft. We fhould be cautious how
we alTociate with the word jtiftice, an idea of
any thing realj Hich as a phyfical power, or a.
being that a£t«ally exifls. I do not, by any
means, fpeak of the jtiftice of God, which is-
of another kind, and refers immediately to re«
wards and piinifhmeats in a life to come*.

CHAP.

Z2 , An essay -o-n:

CHAP. III.

€o7ifequences of the foregoing Principles..

THE laws only can determine the punlfh- ■
mtnt of crimes ; and the authority of makings
penal laws can only refide with the legiflator,.
who reprefents the whole fociety united by the
foclal compa6l. No magiflrate then, (as he is
one of the fociety), can,, with juftice, infUa on.
any other member of the fame fociety, punifh-
ment that is not ordained by the laws. But as a
punifhmeat, increaied beyond the degree fixed
by the law, is the juft pmiilhment, with the ad-
dition of another; it follows, that no magiflrate,,,
even under a pretence of zeal, or the public
good, fhould incrcafe the punifiiment already
determined by the laws.

If every individual be bound to fociety, fociety
is. equally bound to him by a contra<51:, which,
from its nature, equally binds both parties. This :
obligation, which defcends from the throne to
the cottage, and equally binds the highefl and
lowefl of^ mankind, .figniiies nothing more, than :
that it is the interefl: of ail, that conventions,
which are. ufeful to the grcatefl number^ fliould

b-g..;

Crimes and Punishments. ^23

he pmi6lBally obferved. The violation of this
compaft by any individual, is an introduftion
to anarchy.

The fovereign, who repreients the fociety it-
feif, can only make general laws to bind the
members but it belongs not to him to judge
whether any individiual has violated the focial
compaft, or incurred the punifliment in confe-
quence. For in this cafe there are two parties,
one reprefented by the fovereign, who infijfls up-
on the violation of the contraft, and the other
is the perfon accufedj who denies it. It is necef-
fary then that there fhould be a third perfon to
decide this contell ; that is to fay, a judge, or
magiftrate, from whofe determination there
ihiould be no appeal and this decermJnation
(liould confift of a fimpie affirmation, or nega-
tion of fa<fl.

If it can only be proved, that the feverity of
punifhments, though not immediately contrary
to the public good, or to the end for which they
were intended, viz. to prevent crimes, be ufelefs j
then fuch feverity would be contrary to thofe
beneficent virtues, which are the confequence of
-enlightened reafon, which inftrufts the fovereign
to wifli rather to govern men in a ftate of free-
dom and happinefs, than of flavery. It would al-
io be contrary to juftice^ and the focial compacft

CHAP.

J

'24 A N E S S A Y G

CHAP. IV.

Of the Interpretation of Laws.

JUDGES, in criminal cafes, have no right
to interpret the penal laws, becaufe they are^iot^^
iegiflators. They have not received the laws
from our anceftors as a domeffic tradition, or as
the will of a teftator, which his heirs and exe-.
cutors are to obey^ but they receive them from
a fociety a<5lually exifting, or from the fovercign, "-^
its reprefentative. Even the authority of the laws
is not founded on any pretended obligation, or
ancient convention ; which muft be null, as it
cannot bind thofe who did not exift at the time
of its inftitution; and unjuH, as it would reduce
^en, in the ages following, to a herd of brutes,
without any power of judging or afting. The
laws receive their force and authority from an
oath of fidelity, either tacit or exprelTed, which
living fubje6ls have fworn to their fovereign, in
order to reftrain the inteftine fermentation of
the private interefts of individuals. From hence
fprings their true and natural authority. Who
4:hen is their lawful interpreter ? The fovereign,

•that

Crimes and Punishments. 25

lliat is, the reprefentative of fociety, and not the
judge, whofe office is only to examine, if a man
have, or have not, committed an a<5lion contrary
to the laws.

. In every criminal caufe the judge fliould rea-
fon fyliogiftically. The major fiiould be the
general law the minor the conformity of the
aftion, or its oppofition to the laws ; the con-
dufion, liberty, or puniOiment. If the judge
be obliged by the imperfeftion of the laws, or
chafes to make any other, or more fyliogifnas
than this, it will be an introdaftion to uncer-
tainty.

, There is nothing more dangerous than the
common axiom : the fpirit of the laws is to be
conftdered. To adopt it is to give way to the
torrent of opinions. This may feem a paradox
to vulgar minds, which are more ftrongly af-
fefted by the fmalleft diforder before their eyes,
than by the moft pernicious, though remote,
confequences produced by one falfe principle
adopted by a nation.

Our knowledge is in proportion to the num-
ber of our ideas. The more complex thefe are,
the greater is the variety of pofitions in which
they may be confidered. Every man hath his
own particular point of viewj and at diiferent

C times

An E S S. a Y on

times fees the fame objefts in very difFerent
lights. The i]:>irit of the laws will then be the
refuit of the good or bad logic of the judge ; and
this will depend on Ifis good or bad digeflion ;
on the violence of his paffions 5 on the rank and
condition of the abiifed, or on his connexions
■with the judge ; and on all thofe circumilances
which change the appearance of obiecls in the
flu^iuating mind of man. Hence we fee the Fate
of a delinquent changed many times in paffmg
through the difFerent courts of judicature, and
his life and liberty viftims to the falfe ideas or
ill humour of the judge ; who miftakes the
vague refuit of his own confufed reafoning, for
the juft interpretation of the laws. We fee the
fame crimes puaifhed in a difFerent manner at
difFerent times in the fame tribunals ; the con-
feqiience of not having confulted the conflant
and invariable voice of the laws, but the erring
inffability of arbitrary interpretation.

The diforders that may arife from a rigorous
obfervance of the letter of penal laws, are not
10 be compared with thofe produced by the in-
terpretation of them. The firif are temporary
inconveniences which will oblige the legiflator
■to correct the letter of the law, the want of pre-
xufenefs and uncertainty of which has occafion-

ed

Crimes and Punishments. 27

ed thefe difordcrs ; and this will put a flop to
the fatal liberty of explaining ; the fource of
arbitrary and venal declamations. When the
code of laws is once fixed, it fliould be oblerved
in the literal fenfe, and notliing more is left to
the judge than to determine, whether au aiTciori
be, or be not, conformable to the written law.
When the rule of right, which ought to dire6t
the acfions of the philofopher as well as the
ignorant, is a matter of controverfy, not of f aft,
■the people are (laves to the rnagiflrates. The
defpotiim of this multitude of tyrants is more
infdpportable, the lefs the diftance is betv/eeii
the opprefTor and the opprefTed ; more fatal
than that of one, for the tyranny of many is
not to be fhaken off, but by having recourfe to
that of one alone. It is more cruel, as it meets
with more oppofition, and the cruelty of a ty-
rant is not in proportion to his flrength, but to
the obflacies that oppofe him.

Thefe are the means by which fecurity of
perfon and property is befl obtained ; which is
juff, as it is the purpofe of uniting m fociety j
and it is ufeful, as each perfon may calculate ex-
aftly the inconveniencies attending every crime.
By thefe means fubjefts will acquire a fpirit of in-
dependence and liberty; however it may appear

G 2 to.

28 A N E S S A Y o N

to thofe, who dare to call the weaknefs of fub-
iiiitting blindly to; their capricious and interested
opinionsj^ by the facred name of virtue.

Thefe principles will difplearfe thofe who have
made it a rule with themfelves^ to tranfmit to
their inferiors the tyranny they fufFer from their
fuperiors. I fliould have every thing to fear, if
tyrants were to read my book , bitt tyrants ne-
arer read.

CHAP.

Crimes and Punishments.

29

CHAP. V.

Of the Ohfeur'ity of Laws,

IF the power of interpreting laws be atl'
€vil, obfcurity in them muft be another, as the
former is the confequence of tlie latter. This
evil will be flill greater, if the laws be written in
a language unknown to the people j who, being
ignorant of the confequences of their own ac-
tions, become necefTarily dependent on a few,
who are interpreters of the laws, which, inftead
of being pubhc and general, are thus; rendered
private and paiuicular. What muft we think
©f mankind when we reflect, that fuch is the
eftabliflied cullom of the greateft part of our
polhlied and enlightened Europe ? Crimes will
be lefs frequent, in propordon as the code of
laws is more univerfally read, and underftood
for there is no doubt, but that the eloquence
of the .paffions is greatly afnfted by the igno-
rance and uncertainty of puniflm-ientSo

Hence it follows, that without written lawsj.
no fociety will ever acquire a fixed form of go-
vernment, in which the power is veiled in the

C 3. whole.,

30 An E S S A Y on

whole, and not in any part of the foclety and
in which the laws are not to be altered but by
the will of the whole, nor corrupted by the
force of private intereft. Experience and rea«
fon fliew us, that the probability of human
tradidons diminilhes in proportion as they are
diflant from their fources» How then can
laws refill the inevitable force of time, if
there be not a lafting monument of the fecial
compaft ?

Hence we fee the ufe 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 diffufmg literature, has gradually
diffipated the gloomy fpirit of cabal and intrigue..
To this art it is owing, that the atrocious crimes
of our anceftors, who were alternately flaves
and tyrants, are become lefs frequent. Thofe
who are acquainted with the hiftory of the two
or three hil centuries, may obferve, how from
the lap of luxury and effeininacy have fprung
the moft tender virtues, humanity, benevolencej
and toleration of human errors. They may
-contemplate the effed^ of, what was fo impro-
perly called, ancient fimplicity and good faith ,
humanity groaning under implacable fuperfti-
tion the avarice and ambition of a few, Gain-
ing

Crimes and Punishments. 31

ing with human blood the thrones and palaces
of kings ; fecret treafons, and public mafTacres ;
every noble a tyrant over the people ; and the
minifters of the gofpel of Chrift bathing their
hands in blood, in the name of the God of all
mercy. We may talk as we pleafe of the cor-
ruption and degeneracy of the prefent age, but
happily we fee no fuch horrid examples of
cruelty and oppreffion*

CHAP,

3^

An E S S a Y @m-

CHAP. VL

Of the Proportion hetween Crimes and Pamyhmenfs.

IT is not only the common Intereft of man-
kind that crimes fliould not be committed, but
that crimes of every kind fhoiild be lefs frequent,
in proportion to the evil they produce to fociety.
Therefore, the means made ufe of by the legifl
lature to prevent crimes, fliould be more power-
ful, in proportion as they are deflrudfive of the
public fafety and happinefs, and as the induce-
ments to commit them are ftronger. Therefore
there ought to be a fixed proportion between
crimes and punifhments»

It is impoITible to prevent entirely all the dis-
orders which the paffions of mankind caufe in-
fociety. Thefe diforders increafe in proportion
to the num.ber of people, and the oppofition of
private interefts. If we confult hiftory, we ihail
find them increaling, in every ftate, with the ex-
tent of dominion. In political arithmetic, it is
neceffar}'- to fubpitute a calculation of probabili-
ties to mathematical exadlnefs. That force whieb
continuaily impels lis to our own private intereffj^.
like gravity, a61:s incelTantly, unlefs it meets with
an obflacle to oppofe it. The efFedts of this force

are

Crimes and Punishments.

33

are the confufed feries of human actions. Ptinifli-
ments, which I would call political obliaclesj
prevent the fatal efFefts of private intereft, with-
out deflroying the impelling caufe, which is that
fenfibiiity infeparable from man. The legiflator
aftsj in this cafe, like a flcilful architeft, who
endeavours to counteraft the force of gravity
by combining the circumftances which may con-
tribute to the ftrength of his edifice.

The neceffity of uniting in fociety being grant-
ed, together with the conventions, which the op-
pofite interefts'of individuals mull: neceflarily re-
quire, a fcale of crimes maybe formed, of which
the firfl degree fhould confift of thofe which im-
mediately tend to the diflblution of fociety, and
the laft, of the fmallefl poilible injuflice done to
a private member of that fociety. Between thefe
extremes will be comprehended, all aflions con-
trary to the public good, which are called cri-
minal, and which defcend by inlenfible degrees,
decreafmg from the highefl to the loweft. If
mathematical calculation could be applied to the
obfcure and infinite combinations of human ac-
tions, there might be a correfponding fcale of
punifhments defcending from the greatefl to the
leaft : but it will be fufficient that the wife le-
giflator mark the principal divifions, without dif-
ty,rbing the order, left to crimes of the firjl de^

§4 An ESSAY ON

gree be afiigned piiniflimcnts of the lajl. If there
•were an exadl and univerfal fcale of mmes and
punifnments, we ftiould then have a common
meafure of the degree of liberty and flavery,
humanity and cruelty, of different nations.

Any aftion, which is not comprehended in
the above-mentioned fcale, will not be called a
crime, or puniflied as fuch, except by thofe who
have an intereft in the denomination. The mi-
certainty of the extreme points of this fcale, hath
produced a fyftem of morality which contradifts
the laws ; a multitude of laws that contradift
each other j and many which expofe the beft
men to the fevereft pmiifhments, rendering the
ideas of vice and virttie vague and flucfuatingj,
and even their exiftence doubtful. Hence that
fatal lethargy of political bodies, which termi-
nates in their defl:ru£lion.

Whoever reads, with a philofophic eye, the
hiftory of nations, and their laws, will generally
find, that the ideas of virtue and vice, of a good
or a bad citizen, change with the revolution of
ages ; not in proportion to the alteration of cir-
cumftances, and confequently conformable to
the common good ; but in proportion to the paf-
fions and errors by which the different law-givers
were fuccefiively influenced. He will frequently
©bferve, that the pafPions and vices of one age,

are

Crimes and Punishments. 3^

are the foundation of the morality of the fol-
lowing; that violent paffion, the offspring of
fanaticifm and enthufiafm, being weakened by
time, which reduces all the phenomena of the
natural and moral world to an equality, become,
by degrees, the prudence of the age, and an ufe-
ful inftrument in the hands of the powerful or
artful politician. Hence the uncertainty of our
notions of honour and virtue j an uncertainty
which will ever remain, becaufe they change with
the revolutions of time, and names furvive the
things they originally llgnified j they change
with the boundaries of flates, which are often
the fame both in phylical and , moral geography.

Pleafure^and pain are the only fprings of ac-
tion in beings endowed with fenfibility. Even
among the motives which incite men to a<fl:s of
religion, the invifible Legiflator has ordained re-
wards and punifliments. From a partial diftribu-
tion of thefe will arife that contradiction, fo little
obferved, becaufe fo common; I mean, that of
puniiliing by the laws the crimes which the laws
have occafioned. If an equal punifliment be or-
dained for two crimes that injure fociety in dif-
ferent degree, there is nothing to deter men from
committing the greater, as often as it is attended
with greater advantage.

CHAP.

3^ An£SSAYoh

CHAP. VII.

Of efimating the Degree tf Crhjies^

THE foregoing reflexions authorile me to
aflert, that crimes are only to be meafured by
the injury done to fociety.

They err, therefore, who imagine that a crime
is greater, or lefs, according to the intention of
the perfon by whom it is committed j for this will
depend on the a<51ual imprefiien of objefts on the
fenfes, and on the previous difpofition of the
mind; both which will vary in different perfons,
and even in the fame perfon at different times,
according to the fucceffion of ideas, paffions, and
circumftances. Upon that fyftem, it would be
neceffary to form, not only a particular code for
every individual, but a new penal law for every
crime. Men, often with the bell intention, do
the greateft injury to fociety, and with the worff,
do it the mofl: eflential fervices.

Others have eftlmated crimes rather by the
dignity of the perfon offended, than by their
confequences to fociety. If this were the trud
ftandard, the fmallefl irreverence to the divine
Being ought to be punifl.ied.with infinitely more
feverity^ than the affaffmation of a monarch.

2 In

Crimes and Punishments. 37

In {hort, others have imagined, that the great-
nefs of the fin fliould aggravate the crime. But
the fallacy of this opinion will appear on the flight-
eft conliderationof the relatlonsbetween man and
man, and between God and man. The relations
between man and man are relations of equality.
Neceffity alone hath produced, from the oppofi-
don of private paffions and interefts, the idea of
public utility, which is the foundation of human
juftice. The other are relations ©f dependence,
between -an imperfeft creature and his Creator,
the moft perfe6t of beings, who has refer ved to
himfelf the fole right of being both lawgiver and
judge-; for he alone can, without injuftice, be, at
the fame time, both one and the other. If he hath
decreed eternal puniihments for thofe who difobey
his wilt, fhall an infedt dare to put himfelf in the
place of divine juftice, to pretend to punifh for the
Almighty, who is himfelf all-fufficient ; who can-
not receive imprellions of pleafure or pain, and
who alone, of all other beings, a6ts without being
acted upon ? The degree of fin depends on the
malignity of the heart, which is impenetrable to
finite beings. How then can the degree of finferve
as a ftandard to determine the degree of crimes ?
If that were admitted, men may punifh-when God
pardonsj and pardon when God condemns j and
thus adl in oppofition to the fupreme Being,

D , CHAR

38

An essay on

C H A P. VIII.

Of ihe Divtfion of Crimes.

WE have proved, then, that crimes are t©
be eftimated by the injury done to fociety. This
. is one of thofe palpable truths, which, though
evident to the meaneft capacity, yet, by a com-
bination of circiimftances, are only known to a
few thinking men in every nation, and in every
age. But opinions, worthy only of the defpotifm
of Afia, and paflions armed with power and au-
thority, have, generally by infenfible and fom.e-
times by violent impreffions on the timid credu-
lity of men, effaced thofe fmi pie ideas which per-
iiaps conftituted the firH: philofophy of infant fo-
ciety. Happily the philofophy of the prefent en-
lightened .age feems again to conduft us to the
fame principles, and with that degree of certain-
ty which is obtained by a rational examination,
and repeated experience.

A fcrupulous adherence to order would re-
qtiire, that we fhould now examine and diflin-
guifh the different fpecies of crimes, and the
anodes of punifhment.; but they are fo variable
;ia their nature, from the different circumflances

of

Crimes and Punishments; ■ 3^9.=

of ages and countries, that the detail would be
tirefome and endlefs. It will be fufFicient for
my purpofe, to point out the moft general prin-
ciples, and the moft common and dangerous er-
3-ors, in order to undeceive, as well thofe who,
from a^miftaken zeal' for liberty, would intro-
duce anarchy and confufion, as thofe who pre-
tend to reduce fociety in general to the regularity
of a convent.

Some crimes- are immediately deftruftive of
fociety, or its feprefentative : others attack the-
private fecurity of the life, property, or honour
of individuals ; and a third clafs confills of fuch"
a.clions as are contrary to the laws which relate
to the general good cf the community.

The firft, which are of the higheft degree, as
they are mofl: deftrufiive to fociety, are called,
crimes of Leze~majejiy'^\ Tyranny and igno-
rance, which have confounded the ciearefi: terms
and ideas, have given this apeliation to crimes
of a different nature, and confeqiiently have eiia-.
blifned the fame punifnment for eacii ; and on
this occafion, as on a thoufand others, men have
been facrificed viffims to a word. Every crime,
even of the moft private nature, injures focietyi
but every crime does not threaten its immediate ■

* 'HigJi-treafon.

D 2

deflruc--

40'^ An E S'S A Y ON

deflfn£tion. Moral, as well as phyfical aftions,.
Iravc their fphere of aftivity difFerendy circum-
icribed, like all the movements of nature, by time
and fpace ^ it is therefore a fophiflical interpre-
t^ition, the common philofcphy of Haves, that
would confoup^d the limits of things eflabliflied
by eternal truth.

To thefe fucceed crimes which are deiluclive;
of the fecurity of individuals. This fecurity being
the principal end of all fociety, and to which eve-
ry citizen hath an undoubted right, it becomes-
indifpenfably neceffary, that to thefe crimes the
greateft of ponifhrnents fhould be affigned.

The opinion, that every member of fociety
has a right to do any thing that is not contrary
to the laws, without fearing any other incon-
veniences than thofe which are the natural con-
:iequences of ihe aftion itfelf, is a political dog-
jiia, which fhould be defended by the laws, in-
culcated by the magiftrateSj and believed by the
j^seopie J a lacred dogma, without which there
can be no- lawful fociety j a juft recompence for
our facrifice of that univerfal liberty of action,-
common to all fenlibie beings, and only limited
by our natural powers. By this principle, our
minds become free, , aftive^. and vigorous 5 by
this alone we. are infpired wdth that virtue which
IvJiows-no fearj fo differeat from that pliant pru-
dence,.

«

Crimes and Punishments.'- ■ 41^

dence, worthy of thofe only who can bear a
precarious exiftence. ■,

Attempts, thereforcj- againft the life and liber- -
ty of a citizen, are crimes of the highefi: nature.
Under this head we comprehend not only affaf-
fihadons and robberies committed by the popu-*
lace, but by grandees and magiftrates | whofe
example afts with more forcCj and at a greater
dillance, deftroying the ideas of jufdce and duty
among the fubjefts, and fubflitudng that of the ■
right of the ftrongeftj equally dangerous to thole ■
who exercife it and to thofe who fuffer, -

42

An ESSA.Y on

c H A P. ix:

Of Honour. .

THERE is a remarkable difFerence betweeiT
the civil laws, thofe jealous guardians of life-
and property, and the laws of, what is called, ,
honour, which particularly refpecls the opinions
of others. Honour is a term, which has been ^
the foundation of many long and brilliant rea-
fonings, without annexing to it any precife of
fixed idea.. How miferable is the condition of
the huQian mind, to which the rnoft difiant,
and leaft efiential matters, the revolution of the
heavenly bodies, are more dillinftly known,
than the moft interefting truths of morahtj',
xvhich are always confufed and flu6luating, as
they happen to be driven by the gales of pailion,
or received and traofmitted by ignorance ! But
this will ceafe to appear ftrange, if it be confi-
dered, that as objefts, when too near the eye,
nppear confufed, fo the too great vicinity of
the ideas of morality, is the reafon v;hy the
fimple ideas, of which they are compofed, are
eafdy confounded; but which muil: be feparated,
before we can inveftigate the phenojnena of

human

Crimes and Punishments. 43 -

liuraan lenfibiiity ; and the intelligent obferver
of human nature will ceafe to be furprifed, that
lb many ties> and fuch an apparatus of mora-
lity, are neceiTary to the fecurity and happinefs
of mankind. . ' "

Honour, then, is one of tliofe complex ideaSj
which are an aggregate not only of fimple ones,
but of others lb complicated, that in their va-
rious modes of afledling the human mind, they
fometimes exclude part of the elements of
which they are compofed ; retaining only fome
few of the moft common, as many algebraic
quantities adm/it one common divilbr. To find
this common divifor of the different ideas at-
tached to the word honour, it will be necef-
lary to go back to the original formation of fo-
ciety.

The firft laws, and the firff magiftratea, owed
their exlflence to the neceffity of preventing the
diforders, which the natural defpotifm of indivi-
duals Would unavoidably produce. This was
the objecl of the eflablifliment of fociety,: and
was either in reality, or in appearance, the prin-
cipal defign of all codes of laws, even the
moll pernicious. But the more intimate con-
nexions of men, and the progrefs of their
knowledge, gave rife to an infinite number of
neceffities, and mutual a<5ls of iriendfhip, be-
tween

4# An essay on

ttveen the members of fociety. Thefe neceiTities."
were not forefeen by the laws,- and could not-'
be fatisfied by the aftuai power of each indivi- •
dual. At this epocha began to be eftabUfhed '
the defpotifm of opinion, as being the only means
of ; obtaining thofe benefits which.- the. law could
not procure, and of removing thofe evils, againft
wliich the laws were^ no fecurity. It is opinion,
that tormentor of the wife and the ignorant, ,
that has exalted the appearance of virtue above
virtue itfelf. Hence the .efteem of men becomes
not only ufeful, but necefFary, to every one, to
prevent his fmking below the common leveJ..
The . ambitious man grafps at it, as being necci-
fary to his defigns j the vain man fues. for- it, as ^
a .teftimoay of his merit', the honeft man de-^--
mands it as his due; aad ^^ mofi: men confiderr
it; as neceffiiry to their exiflence. .

Honour, being produced after the formation i
of fociety, could not be a part of the common
depofite, and therefore^ whilf!: we under its
jniluence, we return, for that inflant, to a ftate .
of nature, and withdraw ourfelves from the .
laws, which in this cafe are infufficient for our .
proteftion.

Hence it follows, .that in extreme political li^ -
berty, and in abfoiute delpotifra, all ideas of ;
lionour difappear, or are confonnded with o-

ther&t-

Crimes snd Punishments. 4c,

thers. In the firft cafe, reputation becomes life-
lefs from the defpotifm of the laws j and in the
fecond the defpotifm of one man.^ annulling ci-
vil ejsillence^ reduces the reft to a precarious ^
and temporary pgrfoflality. Honour, then, is
one of the faiidamfntal principles of thoft mo-
narchies, which are ailmited defpotifm, and in
thefe, like revolutions in defpotic ftates, it is a
momentary retiini to a date of naturej and ori-
ginal equality.

chaf:.

44 An.KSSAY on.

e H A P., X-

0/ Duelling.

FROM the necsffity of the efteem of others^,
have anfen fmgle combats, and they have been
efiablifhed by the anarchy of the laws.. They
are thought to have been unknown to the an-
cients 3 perhaps becaufe they did not affemble
in their temples, in their theatres, or with their
friends, faipiciouily armed with fwords ; and,
perhaps, becaufe fingle combats were a. common
fpeftacle, exhibited to the people by gladiators, ,
who were flaves, and whom freemen difdained-
tpitxiitate..

In vain have the laws endeavoured'to abolifli
this cuftom, by pnnifliing the offenders with
death. A man of honour, deprived of the
efteem of others, forefees that he muft be re-
duced, cither to a folitary exiftence, infupport- ■
able to a focial creature, or become the objecl
of perpetual infult; confiderations fufficient to
overcome the fear of death.

hat is the reafon that duels are not fo fre-
quent among the common people, as amongfl:
the great ? Not only becaufe they do not wear .

- fwordsj,..

'■Crimes and Pu'Ntsii'M'ENTs. 47'

Twords, but becaufe to men of that clafs repu-
tation is of lefs importance than it is to thofe
of a higher rank, who commonly regard eacli
other with diilrufi: and jealoufy.

It may not be without its ufe to repeat here,
what has been mentioned by other writers, 'viz.
that the bell: method of preventing this crime is
to punifli the aggreffor, that is, tRe perfon who
gave occafion to the duel, and to acquit him,
who, without any fault on his fide, is obliged
to ..defend that, which is not fiiiiciently fecured
:£o him by the laws.

a p»

An essay on

CHAP. XL
Of Crimes which dijlurh the public Tranquillity,

ANOTHER clafs of crimes are thofe
which diflurb the public tranquillity and the quiet
of the citizens ; fuch as tumults and riots in the
public flreets, which are intended foi* commerce
and the paffage of the inhabitants; the difcourfes
of fanatics, which roufe the paffions of the cu-
rious multitude, and gain ftrength from the
number of their hearers, who, though deaf to
calm and folid reafoning, are always afFeded by
obfcure and myfterious enthufiafm.

The illuminadon of the ftreets, during the
night, at the public expence ; guards ftationed
in different quarters of the city ; the plain and
moral difcourfes of religion, referved for the fi-
lence and tranquillity of churches, and protected
by authority J and harangues' in fupport of the
interefl of the public, delivered only at the ge-
neral meetings of the nation, in parliament, or
where the fovereign refides \ are all means to
prevent the dangerous effefts of the milguided
paffions of the people. Thefe fhould be the
principal objedls of the vigilance of a magi-

I ftratCj

Crfmes and Punishments. 49

ftrate, and which the French call Police ; but
if this magiflrate fhould aft in an arbitrary man-
ner, and not in conformity to the code of laws,
which ought to be in the hand of every mem-
ber of the community, he opens a door to ty-
ranny, which always furrounds the confines of
political liberty.

I do not know of any exception to this ge-
neral axiom, that Every member of the fociety
Jljould hjo%u when he is criminal, and luhen inno-
cent. If cenfors, and, in general, arbitrary ma-
^giftrates, be neceifary in any government, it
^proceeds from fome fault in the conftitution.
'The uncertainty of crimes hath facrificed more
victims to fecret tyranny, than have ever fufFer-
ed by public find folemn cruelty.

What are, in general, the proper punifliments
for crimes ? Is the punifliment of death really
ufeful, or neceffary for the fafety or good order
of fociety ? ' Are tortures and torments confift-
ent with jujiice, or do they anfwer the ejid pro-
pofed by the laws ? Which is the befl method
of preventing crimes ? Are the fame punilhraents
equally ufeful at all times ? What influence have
they on manners ? Thefe problems fliould be
folved with that geometrical precifion which the
mift of fophiftry, the feduftion of eloquence^
aiid the timidity of doubt are unable to refift.

E If

:5o An E S SAY

If I hav^e no other merit than that of having
/firil prefented to my country, with a greater
degree of evidence, what other nations have
written, and are beginning to praftife, I {hall
account myfelf fortunate ; but if, by fupporting
the rights of mankind and of invincible truth, I
fhall contribute to fave from the agonies of death
^ one unfortunate vi6lim of tyranny, or of igno-
rance, equally fatal ; his bleffing, and tears of
tranfport, will be a fufficient confolation to me
s|or the contempt of all mankind.

/

©RIMES and Punishments. 51 i

CHAP. XII.

Of the Intent of Pimifliments.

FROM the foregoing confiderations It is evi-
dent, that the intent of punifliments is not to
torment a fenfible being, nor to undo a crime
already committed. Is it poffible that torments,
and uielefs cruelty, the inftruments of furious
" jfanaticiftn, or of impotency of tyrants, can be
authorlfed by a political body /which, fo far'
from being influenced by paffion, fliould be the
cool moderator of the pafTions of individuals.
Can the groans of a tortured wretch recal the
time pafty, or reverfe the. crime he has com-
mitted ?

The, end of punidiment, therefore, is no
other, than to prevent others from com mittinsf
the like offence. Such punifliments, therefore,
and-fuch a mode of inflicSling them, ought to be
chofen, as wilLmakeilrongeft and mofi: lafting
impreffions on the minds of others, with the
Idaft torment to the body of the criminal.

G J I A. Pb .-

E S S A t 0N

c H A p: xm.

Of ihs Credibility of Witne[fes,

TO determine exa^flly the credibility of a
wsmefsj and the force of evidence, is an impor-
tant point ill every good legiflation,- Every man
of common fenfej - that- is, every one whofe ideas
have foiiie coniiexioa with each other, and
■whofe feiifations are conformable to thofe of
other men, may be a witnefs j but the credibi-
lity of bis evidence will be in proportion as he
is interefied in declaring or concealing the. truths.
Hence it appears, how frivolous is the reafon-
Ing of thofe, who rejed the teflimony of wo-
i|ien on account of their weaknefs ; how puerile
it is, not to admit the evidence -of thofe who
sre under lenience of death, becaufe. they are
dead in law ^ and how irrational, to exclude
perfons branded with infamy: for in all thefe
seafes they ought to be credited, when they have
»no intereft in giving falfe teftimony-

The credibility of; a witnefs, then, Ihould only
diminlfla m proportion to the hatred, friendffiip,
or connexions fubfiffing between him and the.
ijelinq^uent. One witnefs is not fuilicient ; for

whilll;

Crimes and 'FumsfiME2q"'Ts'. ■ 53. •

whilfl the accufed denies what the other affirms,'
truth remains fufpended, and the- right that
every one has to be believed innocent, turns the
balance in his favoiii*.

The credibility of a witnefs is the lefs, as the
atrocioufnefs ' of the crime is greater, from the-
improbability of its having been committed ; as
in cafes of witchcraft, and a6ts of wanton cruel--
ty. The writers on penal laws have adopted a
contrary principle, viz. that- the credibility of a
witnefs is greater, as the crime Is more atrocious.
Behold their inhuman maxim-, dictated by the
mo ft :cruel imbecility. ■ In airocijjlmisi leviores-
conjeEtura: ^fujjichmt^ CSf licet judici jura iranf^
gredi. Let us tranilate this fentence, that man-
kind may fee one of the ■ many unreafoiiable-
principles, to which they are ignorantly fubjeft,-
In the moj} atrocious crimes the JlighteJl conjec>-^
tures are fujicienty and the judge is allowed to
exceed the limits of the law. The abfurd prac-
tices of leglflators are often the efFeft of timidity,
which is a principal fource of the contradidions
of mankind. The legiflators, (or rather lawyers-,
whofe opinions, when -alive, were interefted and
venal, but which after their death become of de^
cifive authority, and are fovereign arbiters of the
lites and fortunes of men), terrified by the con-
demnation of fome innocent perfon, have bur-^

E3_. de-ned

An essay on

clened the law with pompous and afeiefs forma-
lities, the fcrupulous obfervance of which will
place anarchical impiinityon tlie throne of juftice j
at other times, perplexed by atrocious crimes of
difficult proof, they imagined themfelves under
a neceffity of fuperleding the very formalities e-
llablillied by themfelves ; and thus, at one time,,
with defpotic impatience, and at another with
feminine timidity, they transform their folemn
judgments into a game of hazard.

But to return. In the cafe of witchcraft,, it
Is much more probable, that a number of men
Ihould be deceived, than tliat any perfon fhouliiJ
exercife a power which God hath refufed to e-
Tery created being. In like manner, in cafes of
wanton cruelty, the prefumption is always againft
the accufer, without fome motive of fear or hate.
There are no fpontaneous or fuperfiuous fenti-
ments in the heart of man j they are all the
refult of impreflions on the fenfes.

The credibility of a witnefs may alfo be di-
miniflied, by his being a member of a private
foclety, whofe cuftoms and principles of con-
du£l are either not known, or are different from
thofe of the public. Such a man has not only
his own palTions, but thofe of the fociety of
which he is a meEcber,

rinalljs

Crimes and Funishments. 55

Finally, the credibility of a witnefs is nuilj .
when the qiieftlon relates to the words of a cri-
minal ; for the tone of voice, the geflure, all-.
that precedes, accompanies and follows the dif-
ferent ideas which men annex to the fame words,
may fo alter and modify a man's difcourfe, that
5$ is almoft impo.ffible to repeat them precifely
ifi the manner in which they were fpoken. Be-
fides, violent and uncommon, actions, fuch as--
teal crimes, leave a trace in the multitude.of
"drcumftances that attend them, and in their
efFefts J but words remain only in the memor}?..
q{ the hearers, who are commonly negligent or
prejudiced. It is infinitely eafier then to found
an accufation on the v/ords, than on the aftions
;of a man ; for in thefe, the number of circum-
ilances, urged againft the accufed, afForA him
variety. of means of juftiriGation.

1

An essay qn

C:-H A' P. XIV.

Gif Evidence and the Prmfs of a Crimea and (f- '
the Form of Judgment. -

THE following general theorem is of gfeat
ufe m determining the certainty ot faft. When
the proofs of a crime are dependent on each j
other, that is, when the evidence of each wit- -
nefs, taken feparateiy, proves nothing 5 or when-
all the proofs are dependent upon one, the num-
ber of proofs neither ' hicreafe nor diminifli the',
probability of the faft 5 :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 inde-
pendent on each other, rthe probability of the
faft increafes in proportion to the number of "
proofs; for the falfhood of one does not dimi- -
nlih. the veracity of another*-

It may feem extraordinary^ that I fpeak of ■
probability with regard to crimes, which, to de^
ferve a punifhmtnt, muft.be certain. But this
paradox 'Will vaniili,- when itds eonfidered, thatj ,
frriftiy fpeaking, moral certainty is only proba- ■
Mity; but which is called a certainty, becaufe
every man in. bis fenfes. affents.to it from ha-
bit

CpvIMEs and ^Punishments. f'/

bit produced by the neceffity of afling, and which
is anterior to all fpeculation. That certainty
which is necefTary tO' decide that the accufed is
guilty, is the very fame wdiich determines every
man in the moft important tj-aniaclions of his^
lif^.

The proofs of a erirne may be divided inta^
two clafTes, perfeft and imperfeft. I call thofe
perfect which exclude the pofTibility of inno-
cence J imperfeft, thofe which do not exclude
this poffibility. Of the firftj one only is fuffi-
dent for condemnation j of the fecondj as many
are required as form a perfeiff proof: that is to-
fay, that though each of thefe, ieparately taken,
does not exclude the pofribility of innocence,-
it' is; neverthelefs excluded by their union. If:
^ijiould be alfo obferved, t^nat the imperfecl:
proofs, of which the accufed, if innocent,
might clear himfelf, and does not, become
perfeft.

But it is much eafier to feel this moral cer-
tainty of proofs, than to define it exaftly. For
this reafon, I think it an excellent law which
eftabliflies alfiftanta to the principal judge, and
thofe chofen by lot; for that ignorance, which
judges by it3 feelings, is lefs fubjeft to error,
than the knowledge of the laws which judges
by opinion. Where the laws ar^' clear and pre- .

An essay on-

cife, the office of the judge is merely to afcertaiH5
the fa6t. If, in examining the proofs of a crime,
acutenefs and dexterity be required •, if clearnefs--
and precilion be necelTary in fumming up the
refult ; to judge of the refult itfelf, nothing is
wanting but plain and ordinary good fenfe, a lefs
fallacious guide than the knowledge of a judge,
accuflomed to find guilty, and to reduce all
things to an artificial fyftem, borrowed from his?
iludies. Happy the nation, where the know-
ledge of the law is not a fcience !

It is an admirable law which ordains, that'^
every man fhall be tried by his peers j for when
life, liberty and fortune are in queflion, the fen-
timents, which a difference of rank and fortune
infpire, fnould be filent; that fuperiority with.-
which the fortunate look upon the unfortunate,
and that envy with which the inferior regard their
iuperiors, (liould have no influence.. But wheni
the crime is an offence againft a fellow-fubjecTr,
one half of the judges fhould be peers to the
accufed, and the other peers to the perfon. offend-
ed. So that all private interefl:, which, in fpite
of ourfelves, modifies the appearance of obje6ls,
even in the eyes of the moff equitable, is coun-*
tera(51:ed, and nothing remains to turn afide the
direction of truth and the laws. It is alfo juff,,
that the accufed fliould have the liberty of ex-
cluding;

Crimes and Punishments. 59

^eluding a certain number of his judges. Where
this liberty is enjoyed for a long time, without
•any inftance to the contrary, the criminal feems
to condemn himfelf.

All trials fliould be public, that opinion, -which
is th? beft, or, perhaps, the only cement of focie-
■ty, may curb the authority of the powerful, and
the paffions of the judge j and that the people
may fay, " We are protefted by the laws ; we

are not flaves : " a fentiment which inlpires
courage, and which is the befl: tribute to a fove-
reign who knows his real intereft. I {hall not
enter into particulars. There may be Ibme per-
fons who Bxpedl that I fliould fay all that can
be faid upon this -fubjeft ; to fuch, what I have
■already written jnuft be unintelligible.

6© An essay ok

C H A P. XV.

Of fecret Accufations ,

S E CRET accufations are a manifell: abufe,
"but confecrated by cuftom in many nations,
where, from the weaknefs of the government,
they are neceiTary. This cuflom makes men falfe
and treacherous. Whoever fufpe6ls another to
be an informer, beholds in him an enemy; and,
from thence, mankind are accuftomed to difguife
their real fentiment ; and from the habit of con-
cealing them from others, they at lall even hide
them from themfeives. Unhappy are thofe, who
have arrived at this point ! Without any certain
and fixed principles to guide them, they flu6luate
in the vaft fea of opinion, and are bufied only
in efcaping the moufters which furround them;
to thofe, the prefent is always embittered by the
uncertainty of the future; deprived of the plea-
fures of tranquillity and fecurity, fome fleeting
moments of happinefs, fcattered thinly through
their wretched lives, confole them for the mifb-
ry of exifting. Shall we, amongfl fuch men,
find intrepid foldiers to defend their king and
country r Amongft fuch men, fiiall we find in-

I corruptible

Crimes sind Punishments.

Gorrnptible magiftrates, who, with the fpirit of
freedom and patriotic eloquence, will fupport
and explain the true interell: of their fovereign ;
who, with the tributes, offer up at the throne
the love and bleffing Gf the people, and thus
beftow on the palaces of the great, and the
humble cottage, peace and fecurity 5 and to the
induftrious a profpeft of bettering their lot, that
ufeful ferment and vital principle of ftates ?

"Who can defend himfelf from calumny, arm-
ed with that impenetrable fliield of tyranny, fe-
crecy? What a milerable government mu ft that
be, where the ib vereign fufpedls an enemy in
every fubjeft, and, to fecure the tranquillity of
the public, is obliged to facrifice the repofe of
every individual !

By what arguments is it pretended, that fe^
cret accufations may be juftified ? The public
fafety, fay they, and the fecurity and mainte-
nance of the eftablifhed form of government.
But what a ftrange conftitution is that, wher6
the government, which hath in its favour not
only power but opinion, ftill more efficaciouSj
yet fears its own iubjefts? The indemnity of the
informer. Do not the laws defend him fufficient-
ly; and are there fubjefts more powerful than
the laws ? The necejfity of proteBing the inform-
er from infamy. Thm fecret calumny is autho-

F rifed^

An essay on

,^\kd, and piiniflied only when public, 2" he fia-
}ure of the crime. If aftions, indifferent in
themfelves, or even ufeful to the public, were
called crimes, both the accnliitlon and the trial
could never be too fecret. But can there be any
crime, committed againfi; the public, which ought
-not to be publicly punifhed ? I refpeft all go-
vernments I and I fpeak not of any one in par-
ticular. Such may fom€times be the nature of
circumftances, that when abufes are inherent in
the conftitution, it may be imagined, that to
redlify them would be to deftroy the conftitution
itfelf. But were I to diftate new laws in a re-
mote corner of the univerfe, the good of pofte-
rity, ever prefent to my mind, would hold back
my trembling hand, and prevent me- from aii-
thonfmg fecret accufations.

Public acGufations, fays Montefquieu^ are more
conformable to the nature of a republic, where
zeal for the public good is the principal paffion
of a citizen, tlian.of a monarchy, in which, as this
fentimeat is very feeble, from the nature of the
government^ the befl eftabllftiment is that of com--
mtjjionersy who, in the name of the public, accufe
the infradlors of the laws. But in all govern-
inents, as well in a republic as in a monarchy, the
punlfhment, due to the crime of which one accu-
&s another, ought to be inflifted on the informer.

Crimes and Punishments* 63^;

CHAP. XVL

Of 'Torture.

THE torture of a criminal, during the conrfe
of his trial, is a cruelty confecrated by cuftorti in-
moil nations. It is. uled with an intent either to
make hira confefs his crime, or explain fome con-
tradidions, into v/hich he had been led during
his examination 5, or difcover his accomplices j or
for fome kind of metaphyli'cal and incomprehen-
iible purgation of infamy j or, finally, in order to
difcover other crimes, of which he is not accu-
fed, but of which he may be- guilty.
, No man can be judged ' a criminal until he
be found guilty; nor can fociety take from him
the public protection, until It have been proved
that he has violated the- conditions 011 which it
was granted. What right, then, but that of power,
can authorife th^.. punirnment of a cidzen, fa
Jong as there remains any doubt of his guilt ?
Hae dilemma is frequent. . Either he is guilty,
or not guilty,. If guilty, he fliould only fuffer
'the punifliment ordained by the laws, -and tor-
ture becomes ufelefs, as his confeilion is unne-
ceffary. If he be not guilty, you torture the

E- 2- innQC€Et| :

An E S S' a t o N

innocent j for, in the eye of the law, every man
is innocent, whofe crime has not been proved.,
Befides, it is confounding all relations, to expeft
that a man Iliould be both the accufer and ac-
cufed 5 and that pain fliould be the tefl: of truth,
as if truth refided in the mufcles and iibres of a
•wretch in torture. By this method, the robnil
%vill efcape, and the feeble be condemned. Thefe
are the inconveniences of this pretended teft of
truth, worthy only of a cannibal ; and which
the Romans, in many refpefls barbarous, amf
whofe favage virtue has been too much admired,
refer ved for the flaves alone.

What ifi the political intention of.pumili-
ments ? To terrify, and to be an example to
others. Is this intention aofwered, by thus pri-
vately torturing the gaiky and the innocent ? It
is doubtlefs of importance, that no crime flioiild
renmin impnniilied i but it is trfeiefs to make a
public example of the author of a crime hid in
darknefs. A crime already committed, and for
which there can be no remedy, can only be pu-
liifhed by a political iociQtyi with an intention
that no hopes of impunity Ihould induce others
to commit the fame. If it be true, that the num-
ber of thofe, who, from fear or virtue, refpeft
the laws, is greater than of thole by whom they
are violated^ the riilc of torturing an innocent

pcrfon

CfajMES and Punishments. 6§'

peiTon is greaterj as there is a greater probabliity.
tkat^ cateris paribus^ an mdividual hath obierveds
tfean that he hath infringed the laws.

There is another ridiculous motive for torture,
namely, to purge a man from infamy. Ought
liich an abufe to be tolerated in the eighteenth
century ? Can pain, which is a fenfadon, have
any connection with a moral fentiment, a mat-
ter of opinion ? Perhaps the rack may be con-
fidered as a refiner's furnace. -

It is not difficult- to trace this ienfelefs law^ If?
its origins for an abfurciity, adopted by a whole
nation, muft have fome affinity with-other ideas,
cftabiifhed and refpefted by the fame nations
This cuftom feems to be the offspring of religi-
on, by which mankind, in all nations and in all
ages, are fo generally influenced. We are taught
by our infallible church, that thofe ftains of fin,
contrafted through human frailty, and which
have not delerved the eternal anger of the Al-
mighty, are to be purged away, in another life,
by a- incomprehenfible fire. - Now infamy is a
ilain, and if tliepuRifnments and fire of purgatory
can take av/ay all fpirituaf ftaios, why ftouid not
the pain of torture take away thofe of a civil
nature ? I imagine, that the- confeffion of a eri-
mlnal, which in- fome tribunals is required, as
being effieatial to bis condemnation^ has a fimilar

F • 3 - origiBj

66

A n ess a Y 01^'

ovigin, and has been taken from the myfleiiou^
tribunal of penitence, where the confeffion of
ilns Is a necellary part of the. facrament. Thus
have men abufed the unerring light of revelation;,
and in the times of tradable ignorance, having;
no other, they naturally had recourfe to it on;
every occafion, making the moil remote and ab-
furd applications.. Moreover, infamy is a fenti-
laent regulated neither by the laws nor by rea-
fon, but entirely by opinion. But torture ren-
ders the victim infamous, and therefore cannot-,
take inhimy away..

Another intendon of torture is, to oblige the
fuppofed criminal to reconcile the contraditflions
nito which he may have fallen during his exami-
nation ; as if the dread of punifhment, .the un-
certainty of his fate, the foiemnity of the court,
the majeify of the judge, and the ignorance of
the accufedj were not abundantly fufficient toc-
account- for contradiftions, which are fo com- ■
mon to men even in a ftate of tranquilHtyj and
which muft neceirarily be mukiplied by the per-
turbation of the mind of a man, endrely enga-
oed in the thought of faving himfelf from im-
minent danger.

This infamous teft of truth is a remaining
monument of that ancient and favage legiflanon,
in which trials by firCj by boiling water, or the

uncer-

Crimes and Punishments. 6j

uncertainty of combats, were called judgments--
of God s as if the links of that eternal chain^ .
whofe beginning is in the brealf of the firll; caufe
of all things, could never be difunited by the in-
flitutions of men. The only difference between
torture, and trials by fire and boiling water, is,
that the event of the firfl depends on the. will of
the accnfed-, and of the fecond, on a fact entire- -
ly phyfical and external : but this difference is
apparent only, not real. A man on the rack, in
the convulfions of torture, has it as little in his
, power to declare the truth, as, in former times5
to. prevent Vv'ithout fraud the effcft of fire or of
boiling water..

Every aft of the will is invariably in propor-
tion to the force of the impreffion on our fenfes.
The impreffibn of pain, then, may increale to fuch
a^degree, tliat, occupying-themind entirely, it will
compel the fufferer to ufe the fliorteft m.ethod
of freeing himfelf from torment. His anfwer,
therefore, will be an eiFeft as neceffary as that
of fire or boiling watery and he will accufe him-
felf of crimes of which he is innocent. . So that
the very means employed to . diflinguiih the in-
nocent from the guilty, will moff effeduaily de- ■
fkoy all difference between them.

It would be fuperfiuous to confirm thefe re-,
fleclions by examples of innocent perfons, who

from

t

An essay on-

from the agony of torture have confefled them-
feives guilty : innumerable inftances maybe found
in all nations, and in every age. How amazing^
that mankind have always negleded to draw the
natural conclufion! Lives there- a man who, if
he have carried his thoughts :ever fo little beyond
the neceffities'of life,' when he refleils on fuch
cruelty, is not tempted to fly from fociety, and
return to- his natural Hate of independence ?

The refult of torture, then, is a matter of
calculation, w and depends on the conftitutionj
which differs in e^'ery individual, and is in
proportion to his Ikcngth and fenfibllity ; fo
that to difcover truth by this method, is a pro*
blem which may be better refblved by a mathe- •
matician than a- judge,' and may be thus Hated.
^he force of ^ the mufcles^ and the fenfibility of
the nerves 'of an -innocent perfon being given , it
is required, to find the degree of pain neceffary
to make htm confefs hinifelf guilty of a given
crime ^ -

The exammation of .the accufed is intended
to find out the truth ; but if this be difcovered
'^^'ith fo much difficult}^, m 'the air, geflare and
countenance of a man at eale, how can it ap-
pear in a countenance difldrted by the convul-

ilQas..o£. tortiir£ Every violent acftiaa deftroys

thofe

Crimes and Punishments. (5^>

thofe fmall alterations in the features, which
fometimef. difciole the fentiments of the heart.

Thefe truths were known to the- Roman legii-
latorsj, amongfi: whom, as I have ah^eady ob-
served, flaves, only, who were not eonfidered
as citizens, were tortured. They are knovvai to-
the Engliih, a nation in which the progrefs of
fcience, fuperiority in commerce, riches and
power, its natural confequences, together with
the numerous examples of virtue and courage,
leave no doubt of the excellence of its laws.
They have been acknowledged in Sweden, where
torture has been abolidied. They are known
to one of the wlferi: monarchs in Europe, who,
having feated philofophy on the throne, by 'his
beneficent legiilatlon,- has made his fubjedts free,
though dependent on the laws 5 the only free-
dom that reafonable men can defire in the pre-
feat ilate of things. In ihort, torture has not
been thought neceiTary in the laws of armies,
compofed chiefly of the dregs of mankind,
where its ufe ihould feem moft neceiTary..
Strange phenomenon! thai a fet of men, har--
dened by fiaughter, and familiar with blood,._
fliould teach humanity to the fons of peace.

It appears alfo, that thefe truths were kcov^'n,
though imperfedly, even to^thofe by whom tor-
ture has been molt frequently praftifed ; for a

confefrioii ,

-70 An ESSAY ON

confeiTion made during torture is null, if it be
not afterwards confirmed by an oath j Vvhich, if
the criminal refufes, he is tortured again. Some
eivilians, and fome nadons, permit this infamous
'petitio principii to be only three times repeated,
and others leave it to the difcredon of the-
judge; and therefore of two men equally inno-
cent, or equally guilty^ the moll: robuft and re-
folute will be acquiftedj and the weakeft and
moft pufdlanimous will be condemned, in confe-
quence of the following excellent method of
reafoning. /, the judge, mujl find fome o?ie guil-
ty.. Thou, who art a firong jeiloiu, hafl been able
to refift the force of torment ; therefore I acquit
thee. Thou, being nveaher, hafi yielded to it ; I .
therefore condemn ihee. I am fenftble, that the
confejfion, tvhich <was extorted from thee, has no
IV eight hut ij thou dojl not confi.rm by oath -ivhat :
thou hafi' already confieffed^ I will have thee tor-
mented again.

A very ftrange, but neceflary confequence of
the ufe of torture, is that the cafe of the inno-
cent is worfe than that of the guilty. With re-
gard to the firft, either he confelTes the crime,
which he has not committed, and is condemned
or he is acquitted, and has fulfered a punifliment
Ise did not deferve. . On the contrary, the per-
foiTLwho is really guilty has the moil: favourable

fida.

Crimes and Punishments. >?i

fide of the qiieftion ; for if he fiipports the tor-
'tUre with firmnefs and refolation, he is acquit-
tedj and has gained, having exchanged a greater
puniftimeat for a lefs.

The law by which tortnre is aiithorifed, fays,
Men^ be mfeiijibie to pain. Nature has indeed
given you an irrefijiihle felf-love, and an unalien-
able right of felf-prefervation, but I create in you
a contrary fentiment, an heroical hatred of your-
felves. I command you to accufe yourfelves , and
4o declare the truth, midjl the tearing of your
jlejfo, and the dijlocatlon of your bones.

Torture is ufed to difcover, whether the cri-
minal be guilty of other crimes befides thofe of
■which he is aecufed; which is equivalent to the
following reafoning. Thou art guilty of one crime,
,iherefore it is pojfwle that thou mnyjl have com-
mitted a thoufand ethers : hut the affair being
doubtful, I mujl try it by my criterion of truth.
'*The laws order thee to be tormented, becaufe thou
art guilty, becaufe thou ^nayjl be guilty, and be^
caufe I chufe thou jhouldfl be guilty.

Torture is ufed to make tlie criminal difcover
his accomplices i but if it has been demonftrated
that it is not a proper means of difcovering truth,
how can it ferve to difcover the accomplices,
which is one of the truths required. Will not
the man who .accufes himfelf, yet more readily

I accufe

72 An E S S A Y ON

accufe others ? Befides, is it jiifl to torment
one man for the crime of another ? May not
the accomplices be found out by the examina-
tion of the witiieffes, or of the criminal; from
the evidence, or from the nature of the crime
itfelf ; in lliortj by all the means that have been
ufed to prove the guile of the prifoner ? The
accomplices commonly fly, when their comrade
is taken. The uncertainty of their fate con-
demns them to perpetual exile, and frees fociety
from the danger of further injury ; whil/l the
punifhment of the criminal, by deterring others,
anfwers the purpofe for which it was ordained.

CHAP.

Crimes and Punish mem ts.

CHAP, XVIL

Of •pecuniary PunlfJjfnents^

THERE was a time when all punidiments
v/ere pecuniary. The crimes of the fubjefts were
tlie inheritance of the prince. An injury done to
fociety was a favour to the crown ^ and the fo-
vereign and magiflrates, thofe guardians of the
public fecurity, were interefled in the violation
of the laws. Crimes were tried, at that time, in
a court of Exchequer, and the caufe became a ci-
vil fuit between the perfon accufed and the crown.
The magiilrate then had other powers than
were neceflai-y for the public welfare, and the
criminal fulFered other punhhments than the ne-
ceffity of example required. The judge was ra-
ther a colledlor for the crown, an agent for the
treafury, than a proteftor and miniHer of the
laws. But, according to this fyftem, for a man to
Gonfefs himfelf guilty, was to acknowledge him-
felf a debtor to the crown 5 \Vhich was, and is
at prefent (the efFefls continuing after the caufes
have ceafed) the intent of all criminal caufes.
Thus, the criminal who refufes to confefs his
.crime, though convifted by the moft undoubted

G proofs.

74 N ESSAY ON

^proofs, will fuffer a lefs punlfliment than if h«
had confeffed ; and he will not be put to the
torture to oblige him to confefs other crimes
which he might have committed, as he has not
confeffed the principal. But the confeflion being
once obtained, the judge becomes mafler of his
body, and torments him with a ftudied formali-
ty, in order to fqueeze out of him all the profit
poffible. Confeffipn, then, is allowed to be a
convincing proof, efpecially when obtained by
the force of torture ; at the fame time that an
extra-judicial confeffion, when a man is at eafe
and under no apprehenfion, is not fufficient for
'his condemnation.

All inquiries^ which may ferve to clear up the
facf, but which may weaken the pretenfions of
the crown, are excluded. It was not from com-
paffion to the criminal, or from confi derations
of humanity, that torments were fometimes fpa-
red, but out of fear of lofmg thofe rights which
at prefent appear chimerical and inconceivable.
The judge becomes an enemy to the accufed, to a
wretch, a prey to the horrors of a dungeon, to
torture, to death, and an uncertain futurity,
more terrible than all ; he inquires not into the-
truth of the faft, but the nature of the crime j
he lays fnares to make him convi£l himfelf 5 he
' fears, left he faould not fucceed in finding him;;

guilty.

CarMEs snd' PuNisHM'ENTs. 75;

guilty, and left that infallibility which every mail'
arrogates to himfeif fliould be called in queftion.
It is in the power of the magiflrate to determine,
what evidence is fufficient to fend a man to pri-
fon ; that he may be proved innocent, he muil-
firfl be fuppofed guilty. This is what is called an
effenfive profecucion j and fuch are all criminal
proceedings j ia the eighteenth century, in all
parts of oar poliflied Europe. - The true profe-
eurlon for information ; that is, an impartial in-
quii-y into the fa6ir^ that which reafon prefcribes,
which military laws adopt, and which Afiatic
defpc9tifm allows in fuits of one fubje^t againft
another, is very little praiSfifed in any courts of
juftice. What a labyrinth of abfurdities \ Ab-
furdities, which will appear incredible to hap-
pier poflerity. The philofopher only will be
able to read, in the nature of man, the poffibi-
Iky of there ever having been fuch a fyftem.

eHAP;-

76

ak e s s-a r

C H A F. XVIII.

Of Oath... -

THERE is a palpable contradi(R:ion between
tbe laws and the natural fentiments of mankind,,
in the cafe of oaths^ which are admlniflered to-
a criminal to make him fpeak the truth, whea
the contrary is his greateft intereft. As if a man
could think himfelf obliged to contribute to his
own deftrudlron ; and as if, when intereft fpeaks,-
religion was not generally filent ; rergloii,,
which in all ages hath, of all other things, been
mofl: commonly abufed ; and indeed, upon what
motive fhould it be refpe^led by the wicked,
when it has been thus violated' by thofe who
were .efteemed the wifeil of men ? The motives
>v.hich religion oppofes to the fear of impending
evil, and the love of life, are too weak, as they
are too difrant, , to make any imprelTion on the,
fenfes. The affairs of the other world are re-
gulated by laws entirely different from thofe by
which human afi'airs are diredled ; why then
flioLild we endeavour to compromife matters be-
tween them ? Why fliould a man be reduced to
the terrible alternative, either of offending God,.

or.

Crimes and Punishments.

Of of contributing to his own immediate de-
fl:j^u6lion? The laws which require an oath in =
fuch a cafe, leave- him only the choice of be-
coming a bad Chriftian or a martyr. For this
reafon> oaths- become by degrees a mere forma-
lity, and all fentiments of religion, perhaps the
only motive of honelly in the greatefl: part of
mankind, are dcftroyed.' ■ Experience proves
their utility : I appeal to every jndge^ whether
he has ever known - that an oath alone has
brought truth from the lips of a criminal ; and
reafon tells us, it m nil: be fo ; for all laws are
ufelefs, and, in confequence,- deliruftive, wliich
contradidl the natural feelingsiof mankind. Such
laws are like - a dike, oppofed direftly to the
courfe of a torrent; it is either immediately
overwhelmed, or, by a whirlpool formed by it-
. fdfj it is. gradually undermined and deilroyed, -

'28 An. E'S S A.Y on

CHAP. XIX.

Of the Advantage of immediate PunifljmentZ,

THE more raimediateiy, after the commif-
fion of a crime, a punilliment is iafli£led, the
more juft and iifeful it will be. It will be more
juft, becaule it fpares the crieiinai the cruel and
fiiperiiuous torment of uncertaintyj which in-
creafes in proportion to the ftrength of M& ima-
gination and the fenfe of his weaknefs % .and be«
caufe the privation of liberty, being a puniniment,
o.ught* to be infil£led before condemnatioa, but
for as fnort a time as poiTible. ImpriibnmentSy
I Hiy, being only the means of fecnring the
perfon of the acciifed, until he be tried, con-
demned, or acquitted, ought not only to be of
as ihort duration, but attended with as little fe-
verity as poffible. The time fhouid be deter-
siiined by the necellary preparation for the trials
and the right of priority in the oldefl prifoners.
The confinement ought not to be cJofer than is
reqitifite to prevent his flight, or his concealing
the proofs of the crime j and the trial Ihouid
be conduced with all poffible expedition. Can
there be a more cruel contraft than that be-

tweea

Crimes and Punishments. ytj,?

tween the indolence of a judge, and the pain-
ful anxiety of the acciifed 5 the comforts and
pieafures of an infenfible magiftrate^ and the ;
iiith and mifery of the prifoner ? In general, as
I Jiave before obferved. The degree of the .pu-
nijhment^ jind the confequences of a crime, ought
to be fo .contrived^ as to ha^w the great eji pojjthle •
effeti on others f ivith the kajl pcjfible pain to the
delinquent. If there be any fociety in which •
this is not a fundamental principle, it is an un-
lawful ibciety ; for mankind, by their union^ .

originally, intended to fubjed thenifelves to the.
iealt evils poilibie.

An immediate punilliment is more ufeful 5 .
becanfe the fmaller the interval . of time betweett
the puniftiment and the crime, the ftronger and <
more laftin^ will be the allbciation of the two -
ideas of Crhm and Pumjhment : fo that they
may be col fide red, one as the caufe, and the ,
other as the unavoidable and necefTary elfeff.
If is demonftrated, that the affociation of ideas is
the cement which unites the fabric of the human
intellecl ; without which, pleafure and pain
wonld be firtiple and ineffecT ual fen fations. The
vulgar, that is, all men who have no general
ideas or unlverfal principles, aft in confequence
of the moft immediate and familiar affociations ;
but the more remote and -complex only prefent

themfclves

5

g^' A'n E'S S a on

tfeemfeives to the minds of thofe who are paf--
fjbnately attached to a fingle objeft, omo thofe;
of greater underftanding, who ■'have, acquired '
an habit of rapidly comparing - together a num-
ber of- objeils, and of . forming a concluilon 5-
and the refult, that is, the adlion : in confe-? •
q«ence, by thefe .means^ becomes lefs danger-^
ous and uncertain.

It is, then, of the greateft importance, that
the ptinilhmeat fhould fucceed the crime as im-
mediately aa ppffible,. if we intend, that, in the.
rude. minds, of the multitude, the feducing pic-
ture of the advantage arifing from the crime,,
fhbuld inftantiy awake the attendant idea of pu-
niflimeat. Delaying the puniliiment ferves only -
to feparate thef&>tw© ideas-.5 and thus afFe6ls the
minds of the fpeftators rather as being a terri-
ble fight, than the. neceflTary confequence of a .
crime ; the horror of which (hcxuld contribute :
to heighten the idea of . the puniftiment. ;

There is another excellent method of Hrength- ■
ening this, important- connection between the
ideas of crime and 'punifhment 5 -that is, to •
make the puniflimentias^analagous as polfible to
the nature of the .crime ; in order, that the pu>-
nifhment may lead the- mind to. coniider. the-
csime in a different .point of viewy .from that in.

. whiGh'-*

Crimes and' Funishments. 8r

which it was placed by the flattering idea o£
|)romired advantages.

Crimes of lefs importanee are eommonly pii-
Bifhed, either in the oblcurity of a prifon, or the-
criininal is trarifported-, to give, by his flavery,,
an example to focietles which he never olfended j
an example abfolutdy ufdefs, becauie diftant
from the place where the crime was committed..
Men do not, in general,, commit great crimes
deliberately, but rather in a fudden gnft of
paffion J and they commonly look on the pu--
nifhment due to a great crime as remote and im-
probable. The public puni/liment, therefere,.
of fmall crimes will make a greater imprei?.on,,
and, by deterring men from the fmaller, will
eiFeftualiy prevent the greater.-

CHAF.-

A.N ESS A Y o m

€ H A P. XX.

Of A3s of Violence^

SOME crimes relate to per/on ^ others to-
property. The firft. ought to be punilhsd cor-
porally. The great and rich fhould by' no means
have it in their power to fet a price on the fe--
GHrity of the weak and indigent; for then,
riches, which, under the prote^ion of the laws, ,
are the reward of induftry, would- become the;
aliment of tyranny. Liberty is at an end, .when-
ever the laws permit, that, in certain cafes, a\
man may ceafe to he> .a perfon^ and; become a-
thing. Then will the powerful employ their
addrefs to, feleft, from the various combinations
of civil fociety, all that is in their own favour..
This is that magic art which transforms fubjefts
into beads of burden, and which^ in the hands
of the ftrong, is the chain that binds the weak-
and incautious. Thus it is^ that in fome govern-^
ments, where, there, is all th& appearance of li-
berty, tyranny lies concealed, and inflnuates it- -
ielf into fome neglefted corner of the conftitu-
Ston^ where it gathers .ftreagth iafenfibly. Man-

'kin,d>:

1

•Crimes and Funishments. 83

kind generally oppofe, with refolution, the af-
•faults of barefaced and open tyranny ; but difre-
gard the little infeft that gnaws through the
dike, and opens a fure, though fecret, pafTage
-to inundation.

CHAP.

§4 An E S S A Y ON

CHAP. XXI.

Of the Puni/hment of the Nobles,

WHAT punifliments fliall be ordained for
the nobles, whofe privileges make fo great a part
of the laws of nations ? I do not mean to in-
quire whether the hereditary diftinflion between
nobles and commoners be ufeful in any govern-
ment, or necelTary in a monarchy; or whether
it be true, that they form an intermediate pow-
er, of ufe in moderating the excefTes of both
extremes ; or whether they be not rather flaves
to their own body, and fo others, confining
within a very fmall circle the natural efFe6ls and
hopes of induftry, like thofe little fruitful fpots
fcattered here and there in the fandy deferts of
Arabia ; or whether it be true, that a fubordi-
nation of rank and condition is inevitable, or
nfeful in fociety ; and if fo, whether this fub- -
ordination fliould not rather fubfifl between in-
dividuals than particular bodies ; whether it
ihould not rather circulate through the whole
body politic, than be confined to one part j and
rather than be perpetual, fhould it not be incef-
fantly produced and defiroyed. Be thefe as they

I may,

Crimes and Punishments.

may") I affert that the punifhment of a Bobl(?mari
ihould in no wife differ from that of the loweft
•member of fociety.

Every lawful diftinftion, either in honours or
riches, fiippofes previous equality^ founded on
the laws, on which all the members of fociety
are coni|dered as being equally dependent. We
ibould fuppoie that men, in renouncing their na-
tural defpotifm, faid, the ivifeji and mojl induf-
trious among us Jhall (Mtain the greatefl honouri^
afid his dignity JJjall defcend to his pcjterity. The
fortunate Mid happy may hope for greater honours ,
but let him not therefore be lefs afraid than others
of violating thofe conditions on •ivhich he is exalt-'
ed. It is true, indeed, that no fach decrees were
ever made in a general diet of mankind, but'
they exift in the invariable relations of things °
Mor do -they deftroy the advantages which are
fuppofe'd to be produced by the clais of nobles,
but prevent the inconveniences and they make
the laws refpeflable by deflroying all hopes of
impunity.

It may be objefted, that the fame punifhment
inflifted on a nobleman and a plebeian, becomes
really different from the difference of their edu-
cadon, and from the infamy it reflefts on an
iiluflrious family 5 but I anfwer, that punifli-
ments are to be efliraated, not by the fenfibility

H of

U An essay on

,of the criminal, but by the injury done to fo-
-ciety; which injury is augmented by the high
rank of the offender. The precife equality of a
punifhment can never be more than external, as
it is in proportion to the degree of fenlibility^
which differs in every individual. The infamy
■ of an innocent family may be eafily obliterated
by fome public demonftration of favour from
-the fovereign and forms have always more in-
ilueace than reafon on the gazing multitude.

''C A.

Crimes and Punishments.

C H A P. XXII.

Of Robbery.

THE punifliment of robbery, not acdbm-
panied with violence, fliould be pecuniary. He'
"who endeavours to enrich himfelf with the pro-
perty of another, fhould be deprived of part of
his own. But this crime, alas! is commonly the-
efFeft of mifery and defpair ; the crime of that
unhappy part of mankind, to whom the right of
exclufive property,., a terrible, and perhaps un-
neceffary right, has left but a bare exiftence.
}3efides, as pecuniary punifliment may increafe
the number of poor, and may deprive an inno-
cent family of fubfiftence, the moft proper pu-
nifliment will be that kind of flavery, which
alone can be called juft 5 that is, which makes
the fociety, for a- time, abfolute mafter of the
perfon and labour of the criminal, in order to
oblige him to repair, by this dependence, the
unjull: defpotifili he ufurped over the property
of' another, and his violation of the focial Com-
paq. .

When robbery is attended with vlolenccj.^
corporal punifliment fhould be added to flavery. >

Ha-' Manjj

A,N ESSAY ON::

Man}/ writers have /hewn the evident diforder
which muft arifs from not dlflingmffiing the pu-
nlfliment due to robbery with vioknce,, and that
due to thef t,^ or robbery committed with dexte-
rity, abfnrdly making a fitm of money equivalent
to a man's life. Bui it can never be fuperfluous
to repeat; agaifl and again, tkofe troths of which
mankind have not profited 5 for poJitieal ma-
chines preferte their motioo much longer lhart
others, and receive a new impulfe with more
difficulty. Thefe crimes are in their nattire ab»
ifolutely differentj and this axiom is as certain in
politics as ill mathematics, that between quali-
ties of dilferent Datures there, can be no fimili-
iiidc.,,.

^ H A P«

r

*'6e.imes and- PoNisHMEisi-TsV' 8j:'>

C-H A P; Xxin.

(3f Infamy^ confidered as a P-umjhmento

THOSE injuries, which affect' the honourj
that is, that jull: portion of efleem which every
citizen hks a right to expefl from others, fhould
be puniihed with infamy. Infamy is a mark of
the public difapprobation, \vhich deprives the ob-
je6l of all confideratlon in the eyes of his fellow
citizens, of the -confidence of his country, and
of that fraternity which exifts between member? •
of the fame fdciety.; This is not 'always in the
power of thelavs's, . It is neceflarytbat the' infa-
my infii£led by t-he-laws Hiould be the fame with ■
that which refults from" the relations of thingSj,
from nniverfal moralit}^, or from that particular
fyllcm, adopted by the nation arid the laws,
which governs the opinion '•of ' "the ' vulgar* If,
on the contrary, one be different from the other,
either the laws will noidnger ^e Tefpeeled, or
the received notions of -morality and probity will
vanifh in fpight of the declamations of moraMsj,
which are -weak to refift thS fo'rce of exampie„
If we declare thdfe anions infamous, which are
to themfdves indifferent, .we leffen the infamy of
thofe which" are really infamous;

The punifhment of' infamy ilro'iild not be'too'
frequent, for the power of opinion grows- weaker '

fji An^ E S S A' Y o'-N-.

by repetition; nor iliouJd it be infiifted on a num--
ber of perfoas at the fame time, for the infamy of
many refoives itfelf into the infamy of none. ■

Painful, and corporal puniihments- fhonld ne-
ver be applied to fanatiGifm j . for being founded:,
on pride, it glories in perfeeution.- Infamy and
ridicule only fhould be employed againft fanatics:
if the firfly their, pride. will be over-balanced by
the pride of the people |;;,and we may judge of the.
power .of the fecond, if we confider' that eves-
truth is obliged to fumraon all her force, when
attacked by error armed with ridicule. Thus, b]/-
oppofing one paffion to another, and opinion to
opinion, a wife-legiOator puts an end to the ad-
miration of the populace, occafioned by a falfe.
principle, the original abfurdity of which is veil- •
ed by fome * well-deduced confequences.

This is the method to avoid confoundirg^ thb
immutable relations of things, or oppoUng na-
ture, whofe adtions not being -liffiited by time,
but operating inceffantly, overturn and dellroy
all thofe vain regiiladons.-whichv contradift: herv
laws.. It is not only in the fine arts that the
imitation of nature is the fandamental principle;
it is the fame .in found policy, whichis no other
than- the art of uniting, and diredling to the fame
end, the natural and immutable fentiments of
mankind.

C H .A T^!.

Crimes and Funishmetsit-s.

C H A P. xxiy.

Of Idle?2ejs.'

A WISE government win nor fufFer, in the
Bild ft of labour and induftry, that kind of poli-
tical idienefs, \vhlch is confoimdedj by rigid de-
daimers, with.theleifure attending riches acqui-
red by induftry, which is of ufe to an increafmg
fociety, when confined within proper limits. I<
call thofe politically idle, who neither contribute
to the good of fociety by their labour nor their -
riches , who Gontinually accumulate, but never:,
fpend ; and are reverenced by the vulgar with
ftupid admira.tion, and regar ded by -the wife with
flifdaiff J who, being viffims to a monaftic life,
and deprived of -all incitement to the-_ activity
which is neceflary to prefer ve or increafe its
comforts,; devote all their vigour to paffions of
the ftrongeft kind, the paffions of opinion. I
call not him, idle,- who enjoys the fruits of the
virtues or vices of his anceilors, and in exchange -
for his pleafures fupports the. indnllrious poor.
It is not then the narrow virtue .of rauftere mo-
raliils, but the lawsj.that fhould determme what
fpecies of - idieflefp. defences puniiliment.:

chap;

A:N- E ,S S A- Y. o- m

c H A P. xxv;.

Of Bantjhmenty and Confifcation. ^

HE who diflurbs the public tranquillity, who >
does not obey the lawsj who violates the con-.-
ditions on which men mutually fupport and de-
fend each other, ought to be excluded from fo —
ciety, that is, baniilied.-

It feems as if banifliment ihould be the pu-.
nifhment of thofe, who, being acCufed of an.
atrocious-; crime, . are .probably, but. not certain-. -
ly, .guilty. , For this purpofe ' would be- required
a kw^ th& ieaft arbitrary^ .and the^mofi: precife
poirible.j which ihould condemn to banifhment
thofe who have reduced. the community to the-
fatal akernatiye,-. either of fearing or punlftiing
them unjuftly; vftiii,- however, leaving them the.
facred right of proving' their imiocence. The rea-^
fonsought to be ilronger forbanifhiBg a citizen
than a flranger, and for the firft;accuia don than v
for one^who hath been- often accufed..

Should the -perfon who is excluded for ever :
from fociety be .deprived of hW property? This -
queftion may be confidered in different lights^
Trhe coafifcatio.ii«.of eife^is, added, to banifh- -

Crimes and Punisbme^nts. 93;

ment, is a greater puuiilimenr than banifhrnent
alone J there ought then to be fome cafes, m
which, accordmg to the Grimcj either the whole
fortune fhguld be confifcated, or part only, or
Rone at all. The whole fhould be forfeited,
when the law, #hich ordains baniihment, de-
clares, at the fame time, that all comie<£l'ions be-
tween the fociety an4 the crindaal are antiihii-
lated. In this Ciife,; the citl2ea dies, the mini
only reffiains^ aimd with refpe£i: to a political
body, the death of the citizen ihoiiid hav^e the
fame confequences with the death of the man*,
It feems to follow, then,, that in this cafe, the
effeds of the criminal fnould devolve to his
lawful heirs. But it is not on account of this
refinement that I difapprove of confifcatioos,.
If fome have innfied, that they were a reflraint
to vengeance, and the violence of particulars,
they have not reSefted, that though punifli-
meats be produflive of good, they are not, on
that account, more juft; to be jufl, they muft
be necelFary. Even an ufeful injuftice can never
be allowed by a leglfktor, who means to guard
againffc watchful tyranny ; which, under the flat-
tering pretext of momentary advantages, would
eilablhli permanent principles of deflruftioii,
and, to procure the eafe of a few in a high flation,
would draw tears from thoufands of the poor.

The,

An E S S a Y on

The law which ordains confifcatlons, fets
price on the head of th^ fubjeft, with the guilty
puni(hes the innocent, and by reducing them to-
indigence and defpair, tempts them to become-
criminal. Can there be a more melancholy
fpeftacle, than a whole family, overv*?helmed^
with infamy and mifery,, from- the crime of their
chief? a crimsj which, if it had been pofiible,
they were retrained from preventing, by that
fiibmlffioQ which the laws themfelves have or*-
daiaed»

^ H A s

Crimes and 'Punishments. ^5

CHAP. XXVI.

Of the Spirit of Family in States.

IT is remarkable, that many fatal afts of
Injuftice have been authorifed and approved, even
-by the wifeft and mo ft experienced men, in the
freeft republics. This has been owing to their
having confidered the ftate, rather as a foclety
of families i than of men. Let us fuppofe a na-
tion, compofed of an hundred thouland men, di-
vided into twenty thoufand families of five per-
fons each, including the head or mafter of the
family, its reprefentative. If it be an afTociation
^of families^ there will be twenty thoufand tnen^
and eighty thoufand flaves 5 if of men, there
will be an hundred thoufand citizens, and not
one flave. In the firft cafe, we behold a repub-
lic, and twenty thoufand little monarchies, of
which the heads are the foverelgns ; in the fe-
cond, the fpirit of liberty will not only breathe
in every public place of the city, and in the
affemblies of the nation, but in private houfes,
where men find the greateft part of their hap-
pinefs or mifery. As laws and cufloms are al-
ways the effedl of a republic, if the fociety be an

, alfociation

An essay on

afTociation of tlie heads of families, the fpirit of
monarchy will gradimiiy make its way into the
republic itfelf, as its effe<51:s will only be reftrain-
ed by the oppofite interefts of each, and not by
an univerfal fpirit o^ liberty aad equality. The
private fpirit of family is a fpirit of minurenefsj
and confined to little concerns. Public fpirit,
on the contrary, is influenced by general prin-
ciples, and from fa6ls deduces general rules of
utihty to the greateft 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 death for an
exiftence dependent on the laws alone. Ac-
cuftomed to kneel and tremble in their tender
years, when their natural fentiments were lefs
retrained by that caution, obtained by experi-
ence, which is called moderation, how fhouid
they refifl: thofe obifacles, which vice always
oppofes to virtue, in the languor and decline of
age, when the defpair of reaping the fruits is
alone fufficient to damp the vigour of their re-
folutions.

In a republic, where every man is a citizen,
family fubordination is not the cffe6t of com-
pulfion, but of coutraft ; and the fous, difen*
gaged from the natural dependence, which the
weaknefs of infancy and the neceility of educa-

i tion

Crimes and Punishments. 97

lion required, become free members of fociety,
but remain fubjeft to the head of the family for
their own advantage, as in the great fociety.

In a republic of families, the young people,^
that is, the moll: numerous and moll ufeful part
of the nation, are at the difcretion of their fa-
thers : in a republic of men, they are attached
to their parents by no other obhgation, than that
iacred and inviolable one of mutual affiftance,
and of gratitude for the benefits they have re-
ceived ; a fentiment, deftroyed not fo much by
the wickednefs of the human heart, as by a mif-
taken fubjeftion, prelcribed l^y the laws.

Thefe contradiftions between the laws of fa-
milies, and the fundamental laws of a Hate, are
the fource of many others between public and
private morality^ which produce a perpetual con-
Hicl- in the mind. Domeflic morality infpires
fubmiffion and fear : the other, courage and li-
berty. That inltrufts a man to confine his be-
neficence to a rmall number of perfons, not of
his own choice ; this, to extend it to all man-
kind : that commands a continual facrifice of
himfelf to a vain idol, called the good of the fa-
mily^ which is often no real good to any one of
thofe who compofe it; this teaches him to con-
fider his own advantage without offending the
laws^ or exdtes him to facrifice himfelf for the

I good

A N E S S A Y 0 N

-good of his country, by rewarding him before-
hand with the fanaticifm it infpires. Such con-^
traditions are the reafon, that men negle6l the
purfuit of virtue, which they can hardly diftin-
guifh midll: the obfcurity and confufion of na-
tural and moral objeifs. How frequently are
men, upon a retrofpeftion of their actions, afto-
niflied to find themfelves diflioneft.

In proportion to the i;njCreafe of fociety, each
member becomes a fmaller part of the whole ;
and the republican fpirit diminishes in the fame
proportion, if neglefted by the laws. Political
focieties, like the human body, have their limits
clrcumfcribed, which they cannot exceed with-
out difturbing their economy. It feems as if
the greatnefs of a, ftate ought to be inverfely as
the fenfibility and activity of the individuals ; if,
on the contrary, population and activity increafe
in the fame proportion, the laws will with diffi-
culty prevent the crimes arifing from the good
they have produced. An overgrown republic
can only be faved from defpetifm, by fubdivdding
it into a number of confederate republics. But
how is this pracficable ? -By a defpotic difbator,
who, with the courage ©f Sylia^ has as much
■genius for building up^ as that Roman had for
pulling down. If he be an ambitious man, his
r-eward will be immortal glory if a philofo-

phefj,

CR.mEs^ and Punishments. ^,(^

plier, the bleffings of his fellow -citizens will
fafficiently confole him for the lofs of authority,,,
though he fhould not be iafenfible to their in-
gratitude.

In proportion as the fentimentSj which unite
us to the ftate, grow weaker, thofe^ which at-
tach us to the objects which more immediately
furround us grow ftronger ; therefore, in the
moi\ defpotic governrnentj. friendfhips are more
durable, and domeflic virtues (which are.always-
of tlie lov.'efl clafs) are the mofc common, or
the only virtiies exifling. Hence it appears how-"
confined have been the views of the greateft"
number of legiriators.-

I (DO

A.N E' S S A, Y 0u

Q H A P. XXVII..

Of. the Mlldnefs of Pumfimmtu

THE courfe of my ideas has carried me
away from my fubjedj, to the elucidation of
which I now return. Crimes are more effeftually
prevented by the certainty^ than the feverity of
punidiment. Hence, in a magiftrate, the neceffi-
ty of vigilaoGej and, in a judge, of implacability,
which, that it may become an ufeful virtue,
ihould be joined to a mild leglflation. The cer-
tainty of a fmali paniflimcntwilLmake. a flronger
irapreffion, than the fear of one more fevcre, if
attended with the hopes of efcaping ; for it is
the nature of mankind to be terriiied at the ap-
proach of the fmaiieft inevitable evil, ^¥hi]^l
liopcj the befi: gift of heaven, hath the power
of difpelling the apprehenfion of a greater
efpecially if fu.pported by examples of impunity,
which weaknefs or avarice too frequently af-
ford.

If punifliments be very fevere, men are na-
turally led to the. perpetration of other crimesy
to avoid the punifhment due to the firfr. The
countries and times moft notorious for feverity

q£:

Crimes and Punishments,- i6r

of- pimuliments, were always thofe in which ths
moft blood)^ and inhuman aftions and the moft
atrocious crimes were committed j for the hand
\oi the legillator and the affaffin were directed by
tl\e fame fpirit of ferocity ; wliich^ on the throne,
diftated laws of iron to Haves and favages, and
in private inftiga ted the fubjedt to facrific€ one
tyrant, to make room for another. -

In proportion as punifliments become more
CFuelj the minds of m.en, as a fluid rifes to the
fame height with that which furrounds it, grow
hardened and infenfibie; and the force of th^
paffions ftill continuing, in the f|>aGe of an hun-
dred year^, the - w/^^'i'/ terrifies- no more than
formerly the prifotu That -a puniihment may
produce the effeft required, it is fufficient that
the evil -it occafions fhould exceed ihe good ex-
pelled from the crim.e i including .in the calcu-'
iation the -certainty of the punilhment, and the,
priva.tion of the expefted / advantage.; All fe-
verity beyond this is fuperfluous, and therefore
tyrannical. -

Men regulate their condufl by the repeated
jmpreiTion of evils they know, and not by thofe
with which they are unacquainted. ' - Let us, fot
example, fuppofe two nations^ in one of which
the greateil punifliraent is perpetual Jlavery,, and
iff the other the ivheel. I fay^ that both will in-

I 3 , ' ipire

102

An essay 0 tsT :

fpire the fame degree of terror ; and tHat there:
can be no reafons for mcreafing the puniQiments-
of the firjft, which are not equally valid for
aiigmenting thofe of the fecond to more lafling.
and more ingenious modes of tormenting j aiKl'
fo. on 4o the mofl exquifite refrnements of a.
fcience too well known to tyrants.

There are yet two other confeqiTeoces of
cruel punifliments, which counteract the pur-
pofe of their inftitution, which was, to prevent
crimes. The jfr/? arifes from the impoffibility of
ellablifliing an exa(fl proportion betw-een the
crime and panifhment j for though ingenious
cruelty hath greatly multiplied the variety, of tor-
ment«5 yet the human frame can fuffer only to a
certain- degree, beyond which it is impoffible to
proceed, be the enormity of the crime ever fo
great. The fecond confequence is Impunity,
Human nature is limited no lefs in evil than in
5/ood. Exceffive barbarity can never be more
than temporary; it being imxpoffible that it ftiould
be fupported by a permanent fyflem of legifla-
lion ; for if the laws be too cruel, tb^y muft be
altered, or anarchy and impunity Vv^ill fucceed.

Is it pofTible, without fhtuddering with horror,
to read in hiftory of the barbarous and ufeleis
torments that were coolly invented and executed
by men who were 9ilkd fages ? Who does not

tremble

CarM-ES- and Punishments. lop

^emble at the thoughts of thoufaiids of wretchess
whom their mifery, either eaufed. or tolerated
by the laws which famared the few, and out-
raged the many, had forced in; defpair to re-
turn to a ftaiie of nature ; or accufed of im=
poffible crimes, the fabric of ignorance and fu-*
perflition ; or guilty only of having been faith-*
ful to their own principles ; who, I Hiy, can, ,
without horror, think of their being torn t6
pieces with -flow and ftudied barbarity, by men
endowed with the £ime pailions and the fame
feelings ? A delightful fpeflacle to. a fanatie
multitude! ^

CHAP.

A n ES S A Y o m^i

C H A P. XXVIIL
Of the Pimijhment of Death. >

THE ufelefs profufion of puniHiments, which' >
has- never made men better, induces me to in-
q-uire, whether the puniihment of death be really
jiift or ufefui .in a well-governed ftate ? What '
right J I afk, have men to cut the throats of
their fellow-creatures ? ; Certainly not that on •
which the fovereignty and laws are founded. .
The lawsj as I have faid before^, are only the
fora of the fmalleft portions of - the private li- -
berty of each individual, and reprefent the ge-
neral 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 pofliblej ,
that in the fmailell: portions of the liberty of
each, facriiiced to^he good of the- public, can be ■
contained the greateft of all good, life ? If it :
were fo, how lhall it be reconciled to the max-
im which tells usi that a man has no right to kill .
himfelf I Which: he certainly muft have,- if he
could give it away to another. =

But the punifliment of- death rs not authorifed i
by any right j for I h?.ve demonftrated that no j

fueh. i

Ckimes and Punishmunts. 105-

I fuch right exifls. It is therefore a war of a
^ "V^hole nation againft a citizen, -whofe deftruc-
, tion they confider as necefTary, or ufeful to the
general good. But if I can further demonflrate,
that it is neither necelTary nor ufeful, I ihali have
gained the canfe of humanity.

The deatli of a citizen cannot be neceffary,.
Irat in one cafe. When, though deprived of his
liberty, he has fuch power and connexions as
may endanger the iecurity of the nation ; when
his exiilenre may produce a dangerous revolu-
tion in the eilabliflied form of government. But
' feven in this cafe it can only be neceilary, when.

a nation is on the verge of recovering or lofing;
, ks libertv; or in times of abfolute anarchA^ when
the diibrders themfelves hold the place of laws.
' Bui in a reign of tranqiiillity 5 in a form of go-
, vernment approved by the united wifhes of the
nation; in a ftate fortified frOm enemies without,
[- tad fupported by firength within, and opinion,.
^ perhaps more eSicaeio us ^. where all power is-
I lodged in the hands of the true fovereign; where
riches can purchafe pleafures and not authority,
there can be no necefiity fox taking away the life
[ - ®f a fubjecf .

If the experience of all ages be not flifficient,
^ to prove, that the punhliment of death has never
I f reveated d.etermined iiieiifrojxi injuring fociety;

jo6 An E S S~ A Y on

if the example of the Romans ^ if twenty years
reign of Elizabeth, emprefs of Ruflia, in which
fhe gave the fathers of their country an example
more illuftrious than many conqnefls bought
, with blood J if, I fay, all this be not fufficient to
perfuade mankind, who always fupeft the voice
of reafon, and who chufe rather to be led by
authority, let us confalt human nature in proof
of my alTertion.

It is not the intenfenefs of the pain that has
the greatefl effefl on the mind, but its continu-
ance j. for our fenfibility is more eafily and more
powerfully aifefted by weak but repeated im*
preffions, than by a violent but momentary im-
pulfe. The power of habit is iiniverfal over"
every fenfible being. As it is by that we learn
to fpeak, to walk, and to fatisfy our meceflities,
lb the ideas of morality are ftamped on ouc.
minds by repeated impreffions^ The. death of ai
criminal is a terrible but momentary fpe6tacle,
and therefore a lefs efficacious method of deter-
ring others than the continued-sxample of a man ;
deprived of his liberty, , condemned as a beaft;'
of burdeiij tQ, repair, by hisviabour, the injur yv
he has done.to fociety. If I commit fuch a criine:^..
fays the fpeiftator to himfelf, / fiall he reduced'^
tg that miferahle condition for the rejl of my lifc.._
4-Ui;iuch more powerful preventive, than the .fear.

Crimes and Punishments. 107

'of death, which men always behold in diftant
obfcurity.

The terrors of death make fo flight an im-
preilion, that it has not force enough to. witb-
ilaad the forgetfulnefs natural to mankind, even
in the moft effential things efpecially when af-
fifted by the paffions. Violent impreffions fm--
prize us, but their effeft is momentary; they
are fit to produce thofe revolutions which in- '
Jflantly transform a common man into a Lace-
demonian or a Perfian ; but in a free and quiet
•government they ought to be rather frequent
than flrong.

- The execution of a criminal is, to the multi-
tude, a fpeftacle which in fome excites compal-
fion mixed with indignation. Thefe fentiments
■occupy the mind much more than that faiutary
terror which the laws endeavour to infpire; but
in the contemplation of continued fuffering, ter-
ror is the only, or, at ieaft, the predominant
fenfation. The feverity of a puni/hment fliould
-be juft fufHcient to excite compaffion in the fpec-
, tators, as it is intended m-ore for them than for
the crlminaf.

A punifhment, to be jiift, /hould have only
ihat degree of feverity which is fufficient to deter
others. Now there is no man, who, upon the
ieaft rjefle6i:ion, would put in competition the

total

loS An E S sat on

total and perpetual lofs of his liberty, with the
greatefl advantages he could poflibly obtain in
confequence of a crime. Perpetual flavery, then,
has in it all that is necefTary to deter the moil
hardened and determined, as much as the pu-
nifliment of death. I fay, it has more. There
are many who can look upon death with intre*
pidity and firmnefs j fome through fanaticifm,
and others through vanity, which attends us,
even to the grave others from a defperate re*
folution, either to get rid of their mifery, or
ceafe to live : but fanaticifm and vanity forfake
the criminal in flavery, in chains and fetters, in
an iron cage; and defpair feems rather the be-
ginning than the end of their mifery. The tnind,
by collefting itfelf and uniting all its force, can,
for'a moment, repel aifailing grief ; but its moft
vigorous efforts are infufRcient to refift perpetu^
al wretch^dnefs.

In ail nations, where death is ufed as punifh-
ment, every example fuppofes a new crime com-
mitted. Whereas, in perpetual flavery, every
<:riminal affords a frequent and lafling example j
-and if it be neceffary that men fhoiud often be
witneffes of the power of the laws, criminals
[hould often be put to death j but this fuppofes
^ frequency of crimes; and from hence this

1 ■ jpunifti*

Crimes aiid PijnishMents. io<p

I -pTialdiment will ceafe to have its efFedl/ fo that

it muft be ufeful aad ufelefs at the fame time.
1 I fhall be told, that perpetual flavery is as
painful a punifhment as death,, and therefore a?
cruel. I anfft^er, that if all the milerable mo-
ments in the life of a flave were coilefted into
( one point, it would be a more cruel punifliment
I than any other; but thefe are fcattered through
i his whole life, whilft the pain of death exerts all
I Its force in a moment. There is alfo another
; advantage in the punifliment of Oavery, which
is, that it is more terrible to the fpeftator than
to the fufFerer himfelf j for the fpeflator confj-
ders the fum of all his wretched moments, whi=lfL
i the fufferer, by the mifery of the prefent, is pre-
I vented from thinking of the future. AH evil:;
are increafed by the imagination, and the fuiFer-
er finds refources and confolations, of which
; the fpeftators arc ignorant ; who judge by their
, own fenfibility of what pafles in a mind by habit
' grown callous to misfortune.

Let us, for a moment, attend to the reafon-
ing of a robber or affalTm, who is deterred from
violating the laws by the gibbet or the wheel. I
am fenfible, that to develop the fentiments of
ene's own heart, is an art which education only
can teach', but although a villain may not be
able to give a clear account of his principles,

K ithey

110 An essay o^j

ithey neverthelefs influence his conducft. He

reafons thus : " What are thefe laws that I am
bound to refpectj which make fo great a dif-

*^ ference between me and the rich man ? He

" refufes me the farthing I alk of him, and
excufes himfelf by bidding me have recourfe
to labour, with which he is unacquainted.

" Who made thefe laws ? The rich and the
great, who never deigned to vilit the mifer-
able hut of the poor ; who have never feen
him dividing a piece of mouldy bread, amidft:
the cries of his famifhed children, and the

" tears of his wife. Let us break thofe ties,
fatal to the greateft part of mankind, and

*^ only ufeful to a few indolent tyrants. Let us
attack injuftic^ at its fource. I will return to
my natural ftate of independence. I fliall live

" free and happy on the fruits of my courage
arjd induflry. A day of pain and repentance

" may come, but It will be fhort ; and for
an hour of grief I Ih all enjoy years of plea-

" fure and liberty. King, of a fmall number,
as determined as myfelf, I will correal the
miftakes of fortune ; and fhall fee thofe ty-
rants grow pale and tremble at th,e fight of
him, whom, with infulting pride, they would
not fufFer to rank with dogs and horfes."

,Rgligioja

CrixMES and Punishme^nts.

I iHfi

Religion then prefents itfelf to the mind of
this lawlefs villain, and promifing him almofl a
certainty of eternal happinefs upon the eafy term-3
of repentance, contributes much to lellen the
horror of the lafl fcene of the tragedy.

But he who forefees, that he rnuif pafs a
great number of years, even his whole life, in
pain and Ilaveiy ; a flave to thofe laws by which
he was protefted, in fight of his fellow citizens,
with whom he lives in freedom and fociety-j
makes an ufeful comparifon between thofe evils,
the uncertainty of his fuccefs, and the fnortoefs

-©f the time in which he lliall enjoy the fruits of

'his tranfgrellion. The example of thofe wretches
continually before his eyes, makes a much great-
er imprefiion on him than a punifliment, which^

.Inflead of corredling, makes him more obdu-

;^rate.

The punifhment of death is pernicious to fo-
clety, from the example of barbarity it affords.
If the paffions, or the neceffity of war, have
taught men to- flied the blood of their fellow-
creatures, the laws which are intended to mo-
d^srate the ferocity of mankind, fliould not in-
creafe it by examples of barbarity, the more
horrible, as this punilhment is ufually attended
with formal pageantry. . Is it not abfard, that
the laws, which deteft and puniOi homicide-,

K 2 ihould^::

112 . An E S S a Y on

fooLild, in order to prevent murder, publicly
commit murder themfelves ? What are the true
and moft ufefiTi laws? Thbfe compass and con-
ditions which ail would propofe and obferve, in
thole- moments when private intereft is filenf, op
combined with that of the pubii£. What are
the natural fentunents of ever3; perfbn concern-
ing the puniflimeiit of death? We may read
rheia iQ the contempt atid indignation with which
every one looks on the executioner, who is ne-*
i-erthdefs an innocent executor of the public
a good citizen, who contributes to the
adyantage of focietyj the inflrument of the ge-
neral fecurity within, as good loldiers are witli-
outi^ • What tlien is- the origin at rhis contradic-
tion ? Why is this fentiment of mankind indeli-
ble to the fcandal of reafon ? It is, that in a fe-
cret corner of the mind, in which the original
inlpreffions of nature are ftili preferved, men,
dilcover a fentiment which tells them, that their
Trves are not lawfully in the power of any one,
but of that neceffit'y only, which with its iroa
fceptre rules the univerfe.

V/hat muft men think, when they fee wife
magiftrates and grave minifters of juftlce, with
indifference and tranquillity, dragging a criminal
to.: death, and whilft a wretch trembles with
agony,, expeding the fatal flroke, the. judge,

who.

i

C'risies and Punishmen'ts.' lij

■w'ho has condemned him, with the coldeil in-
feofibillty, and perhaps with no fmail gratifica-
tion from the exertion of his^ aiithoricyj quits his
tnbiinal to enjoy the comforts and pleafures of
life r They will fay, " Ah! thofe cruel formaji-

ties of juftice are a cloak to tyranny, they are
" a fecret langaage, a folemn veil, intended to
** conceal the fword by which we are facrificed

to the infatiable idol of defootifm. Murder,
" which they would reprefent to us as an hor-
" rible crime, v/e fee praftifed by them- without
" repugnance or remorfe. Let us follow rheir

example* A violent death appeared terrible
*lf in their defcriptionsj -but -we fee that it is the

affair of a moment. It:will be ftill lefs terrible

to him, wh6-, not expefting it, efcapes^almoft
" all the pain." Such is the fatal, though, ab-
furd reafoning of men who are difpofed to com-
mit crimes ; on whom the abufe of religion has
more influence ithan religion itfelf.

If it be 'objefted, that almoft all -nations in'
ail ages have punifhed- certain crimes- with deathy
I anfwer, that the force of thefe examples va-
niflies, when pppofed to truth, againfi which
prefcription is urged in vain. -The hiftory of
mankind is an immenfe fea "of errors, in which
a few obfcure truths may here and there be
foiindv -

K 3 , Biit

114 An ESSAY ON

But Inimaii facrifices have alfo been common
in almoft all nations. That fome locieties only,
either few in number, or for a very fhoxt timej.,
abftainedfrom the pimifliment of death, is rather,
favourable to my argument, for fuch is the fate,
of great truths, that their duration is only as a.
fiafti of lightning in the long and dark night of.
error. The happy time is not yet arrived, when,
truth, as faiihood has been hitherto, lliall be.
the portion of the -greatcil number.

I am fenfible that the voice of one philofopher-
is too weak to be heard amidil: the clamours of
a multitude, blindly influenced by cuflom ; but
tl>ere is a fmall number of fages, fcattered on the
face of the earth, who will echo to me from the
bottom of their hearts-, and if t'hefe truths fhould
haply force their way to the thrones of princes,,
be it known to them, that they come attended
\vith the &cret wilhes of all mankind j and tell
the jbvereign, who deigns them a gracious re-
ception, that his fame fliall outOiine the glory
of conquerors, and that equitable pofterity will
exalt his peaceful trophies abave. thofe of a
Titus, aa Antoninus, or a Traj-an.

How happy were mankind, if laws were now
to be firft formed I no^v that we fee on the,
thrones of Europe benevolent monarchs, friends,'-
tQ. the virtikss of. peace^ to the arts aad fciences, ,

fathers..

Crimes an^ Pumishments; ii^

fathers of their people, though crov/ned yet cl- -
.tizens ; the increafe o| whofe authority augments
the happinefs of their fubje£ls, by defiroying
that intermediate derpotifaiy which intercepts the
prayers of the people to the throne* ~ If thefe
humane princes have fuffered the aid laws to
fubfjft, it is doubtlefs becaufe they are deterred
by tile numberlefs obftacles which, oppofe the
fubverfion of errors eftabli(ked by the fan^llon
tef many ages ; and therefore every wife citizeti-
M'iU. wiili for the increafe of .their authority. .

CHAP,

An E".S:S A.Y' oh

CH'AP. XXIX..
Of hnprifonment. -

THAT a magiftrate, the executor of thd
laws, fliould have a powei- to imprifon a citizen^
to deprive the iTva-n he hates- of his liberty upon
frivolous pretences, and to leave his friend
unpunifhed, -notwithftanding the-flrongefl: proofs
of his guilt, is an error -as common as it is
contrary to the' end of fociety, which is per-
fonal feeurity.-

Imprifonmeat rs a pumfliment,\\vhich, differs
from all others in this particular, that it necef-
farily precedes con-viftion j but ; this difference
does not deftroy a circumftance,-' which is elTen-
tial, and. common to it with all. other puniQi-
ments, Ws. that it fhould neter bednflifted, but
when ordained by the law. The law fhould,
therefore, determine the crime, the prefumption,
and the evidence fufficient to fubjecfl: the accufed
to imprifonment and examination. Public re-
port, his flight, his. extra-judicial confeffion, that
of an accomplice, menaces, and his conftant
enmity wdth the perfon injured, the ■ qircum-
ftaaces. of 'tlie. crime, .and fuch other evidences

may

Crimes and Puntshments. 117.

may be fufficient to jaftify the imprifonment of
a citizen. But the nature of this evidence (hould
be determined by th^ laws, and not by the ma-
giftrates, whofe decrees are always contrary to
j3olitical liberty, \vhen they are not particular
applications of a general maxim of the public
code*- When punlfhrnents become lefs fevere,
and prifons ]efs .horrible ; when compa/Eon and
humanity fnall penetrate the iron gates of dun-
geons, and direft the obdurate and inexoi-able
minifters of jullicej the laws may then be fatif-
fied with- weaker evidence for imprifonment,

A perfon accuied^ imprifoned^ tried and ac-
quitted, ought not fo be -branded with any de-
gree of infamy. Among the R,omans,'we fee.
that many, accufed of very great crimes, arid af-
terwards declared innocent, were refpe(5led by
the peeple, and honoured with employments in
the flate. Ent why is the fate of an innocent
perfon lb different in this age ? It is, becaufe the
prefent fyft-em of penal laws prefents to our
minds an idea of power rather than of juftice.
It is, becaufe the accufed and convifted are
thrown indifcriminately into the fame prifon ;
becaufe imprifonment is rather a punifhment,
than a means of fecuring the perfon of the ac-
cufed; and becaufe the interior power, whicli/
defends the laws, and the exterior, which de-,-

fenda

nS , An ES'S' A Y- o^n^

fends the throne and kingdom, are feparate
wherx they fihould be united. If the iirft were>
(under the common authority of the laws) com-
bined with the right of judging, but not how- •
ever immediately dependent on the magiilrate,
the pomp that attends a military corps, would
take off the infamy , which, like all popular-
opinions, -is more attached to the manner and '
form, than to the thing itfelf; as may be feen
in military imprifonment, which, in the. com-
mon opinion, is not fo difgraceful as the civiL
But the barbarity and ferocity of our anceflors,
tije hunters of the north, ftill fubfift among the -
people, in ' our cuftoms and our iav*7s, which
are alwuys feveral ages behind the adual re-
finements of a nation.

CHAP;

Crimes and Punishments. 119

CHAP. XXX.

Of Profecution and Prefoription.

THE proofs of the crime being obtained, and
i:he certainty of it determined, it is neceffary to
• allow the criminal the time and means for his
jiiftificatjon ; but a time fo fhort, as not to di-
minifli that promptitude of punifhment, which,
as we have fliewn, is one of the moft powerful
means of preventing crimes. A miftaken huma-
nity may objeft to the fhortnefs of the time,
but the force of the objeftion will vanifli, if we
confider that the danger of the innocent in-
creafes with the defeats of the legiflation.

The time for inquiry and for julHfication
" jDiould be fixed by the laws, and not by the
judge, who, in that cafe, would become legifla-
tor. With regard to atrocious crimes, which
are long remembered, when they are once pro-
ved, if the criminal have fled, no time iliould
be allowed ; but in lefs confiderable and more
obfcure crimes, a time fhould be fixed, after
which the delinquent (hould be no longer un-
certain of his fate. For in the latter cafe, the
length of time, in which the crime is almofl

forgotten,,,

120 An essay on

forgotten, prevents the example of Impunity,
and allows the crhninal to amend, and become
a better member of foclety.

Genera] principles will here be fufficient, it
being impoffible to fix precilHy the limits of
time for any given legillation, or for any fociety
in any particular circumftance. I fliall only add,
that in a nation willing to prove the utility of
moderate punlfliment, laws which, according to
the nature of the crime, increafe or diminifh the
time of inquiry and j unification, confidering the
imprifonment or the voluntary exile of the cri-
minal as a part of the punifliment, will form an
eafy divifion of a fmall number of mild punifh«
ments for a great number of crimes.

But, it rnufi: be obferved, the time for inquiry
and juftification fiiould not increafe in direft
proportion to the atrocioufnefs of crimes ; for the
probability of fuch crimes having been committed,
is inverfely as their atrocioufnefs. Therefore the
time for inquiring ought, in fome cafes, to be
diminiihed, and that for juftification increafed,
Ss* vice verfa. This may appear to contradift
what I have faid above, namely, that equal pu-
niOiments may be decreed for unequal crimes,
by confidering the time allowed the criminal,
m the prifon, as a punifhment»

I la

Crimes and Punishments. izi

In order to explain this idea, I fhall divide
■crimes into two claiTes. The firft compreliends
homicide, and a^ll greater crimes j the fecond,
crimes of an inferior degree. This diftinftion is
founded in human nature. The prefervation of
life is a natural right; the prefervation of pro-
perty is a right of fociety. ^Fhe motives that in-
duce men to {hake olF the natural fentiment of
"compaffion, which muft be deftroyed before
great crimes can be committed, ace much defs in
number than thofe by which, from the natural
defire of being happy, they are inlHgated to
violate a right, which is not founded in the heart
of man, but is the work of fociety. Tiie dif-
ferent degrees of probability in thefe two clafFeSj
requires that they fliould be regulated on differ-
ent principles. In the greateft crimes, as they
are lefs frequent, and the probability of the in-
nocence of the accufed being greater, the time
allowed him for his julHfication fhould be
greater, and the nme of inquiry lefs. For by
hailening the definitive fentence, the flattering
hopes of impunity are deftroyed, which are
more dangerous, as the crime is more atrocious.
On the contrary, in crimes of lefs importance,
the probability of the innocence being lefs, the
time of inquiry fliould be greater, and that of
: ].u{iification lefs, as impunity is not fo dangerous..

"But

122 Ai^ ESSAY ON

But this divifion of crimes into two dalles
&ould not be admitted, if the confequences of
impunity were in proportion to the probability
of the crime. It (hoiild be confidered, that a
perfon accnfed, whofe guilt or innocence is not
determined for want of proofs, may be again
imprifoned for the fame crime, and be fubje6t
to a new trial, if frefh evidence arifes within
the time fixed.

This is, in my opinion, the befl method of
providing at the fame time for the fecurity and
liberty of the fubjeft, without favouring one at
the expence of the other ; which may eafily
happen, lince both thefe bleffings, the inalien-
able and equal patrimony-of every citizen, are
liable to be invaded, the one by open or di{-
guifed defpocifm, and the other by tumultuous
and popular anarchy.

CHAP,

Crimes'

and Punishments,

CHAP. XXXI. .

Qf Crimes of difficult Proof.

•WITH the foregoing principles in vie\r, ir
will appear aftonifning, that reafoii hardly ever
prefided at the formation of the laws of nations j
that the weakeH: and moft equivocal evidence,
and even conjectures, have been thought fufH-
cieat proof for crimes the moft atrocious, (and
therefore moft- improbable), the moft obfcare
and chimerical; as if it were the intereft of the
laws and the judge not to inquire into the truth,
but to prove the crime j as if there were not a
: greater riiK of condemning aa innocent perfon,
I .,^hen the probability of his guilt is lefs.

The ■ generality of m.en want that vigour of
mind and refolution, which are as neceffary for
\ great crimes as far great virtues, and which at
J the fune time produce both the one and the
: other, Ja^thole nations which are fapported by
the aflivity of-' their government, and a paffion
for the public good. For in thofe which fubfift
by their greatnefs or power, ,or by the goodnefs
«>f their laws, the paffions being in a weaker de» •
§j;ee, feem calculated rather to maintain than to.

L-2, improve.

3 24 An E S H a Y o^n.

improve the form of government. This naturally
leads us to an important conclufion, viz. that
great crimes d®.always produce the deflru(ftioii
of a nation. .

There -are fome crimes which, though fre-
quent in foclety, are of difficult proofj a circum-
fcance admitted, as equal to the proBability of the
innocence of the aecufed. But as the frequency
©f thefe crimes is not owing to their impunity
ib much as to other eaufes, the danger of their
palling impuniftied is of lefs importance, and
therefore the. time of examination and prefcrip-
tion may be equally diminilhed. Thefe principles-
are ditferent from thofe commonly received ;
for it is in crimes, which are proved with the
greatefl: difficulty, fuch as adultery, and fodomy,-.
that prefumptlons, half-proofs, h''c. are admit-
ted ; as if a man could be half innocent, aficF
naif guilty; that is, half punifhable and half
abiblvable. -It is in thefe cafes that torture-
fhouid exercife its cru'el power on-'the perfon of
the accufed, the witnefTes, and even his whole
family, as, with unfeeling indifFerence, fome
civilians have taught, who pretend to dictate
laws to nations.

Adultery is a crime which, politically confi-
dered, owes its exiftence to two caufes, viz.
permeioiis lawsj and the powerful ^attrad^ion be^

t\veea_

Crimes and Punishments. 125

tween the fexes. This attraction is fimllar in
many circumflances to gravity, the fpring of
motion in the univerfe. Like this, it is dimi-
nifhed by diflance ; one- regulates the motions of
the body, the other of the foul. But they dif-
fer in one ^ refpeft j the force of gravity de-
creafes in proportion to the obftacles that oppofe
it-; the other gathers Ilrength and vigpuf as the
obftacles increafe. ^ -

If I were fpeaking to nations guided only by
the laws of nature, I would tell them, that there
is- a confiderable difference ■ between adultery
and all other crimes. Adultery proceeds from
an abufe of that neceffity which is conftarkt and
univerfal in human nature ; a nec^ility anterior
to the: formation of- fociety, and indeed the
founder of fociety ■ itfelf ; whereas, all other
crimes tend to the= deftruftion of fociety^ and
arife from momentary paffions, and not from a
natural neceffity. - It- is ^ the opinion of thofe,
who have ftudied hiftory and mankind^, that this
neceffityis conftantly in the fame degree in the
fame climate.- If this be true, ufelefsj or rather-
pernicious mull all laws and cufloms be, which
tend to diminifh the fum total of the effe6fs of
this pafGon. -Such laws- would only: burden one
part of fociety with the additional necelTities of
the otiicr, but, oa the contrary, wife are the

L 3 . laws

126 An E S S A Y on.

laws which, following the natural conrfe of
the river, divide the ftream into a number of
equal branches, preventing thus both llerility.
and inundation.

Conjugal fidelity is alv/ays greater in propor- '
tion as marriages, are more numerous, and lefs -
difficult. But when the intsreft or pride of fa-
milies, or paternal authority, not the iuGlination
of the parties, , unite the. fexes^ gallantry feon -
breaks the {lender ties, in fpite of common mo-
ralifts, who exclaim . againft the, eiTecl, whilft<
they pardon the caufe. But thefe refleclions^i
are ufelefs to thofe, who, living in the true re--
ligion, aft from.fljblimer motives, which- eorrefr -
the eternal laws of nature.

The adf of adultery is a crime fo inHantane-- i
ons, fo myfterious, and fo concealed by the veil,
which the laws themfelves have woven ; a veil
neceffary indeed, but fo tranfparent, a& to -
heighten rath'jr than conceal the charms of the^
object ; ■ the opportunities are fo frequent, and
the danger of difcovery fo ealily avoided, that it
were much eafier for the law^s to prevent this
crime, than to punifli It when committed.

To every crime, which from its nature ^muf
frequently remain unpuniHied, the punillimenE-
is an incentive. Such is the nature of the hu
man imnd^ that difficiikiesj if not infurmount-

able.-

Crimes, and Punishments. 127.

:^lej nor too great for our natural indolence,
embeliifh the object, and fpur us on to the pur--
feit. They are fo many barriers that confine the
imagination to the objedl, and oblige us to^
confider it in every point of view. In this agi-
tation, the mind naturally incUnes and fixes itfeif
to the moft agreeable part, fludioufly avoiding
every idea that migiit create diiguft.

The crime of fodomy, ,fo fevereiy punifhed
by the laws, and for the ^jroof of which are. em-
ployed tortures, which often triumph; over in-
nocence-itfelf, has its fource much lefs in the
paffions of man- in a free, and independent fiate^,
than in fociety and a Have. It is much lefs the
efFeft of a fatiety in pleafures, than.: of that edu-
cation,, which,, in-order to make men ufeful to
otliers, begins by making them ufelefs to them-
felves. In tiiofe public feminaries, where ardent ;
youth are carefully excluded from all commerce
with the other fex, as; the vigour of nature
blooms, it is confumed in a manner not only
ufelels to mankind^ but, which accelerates the
approach of old agCi .

The murder of baflard children isy in like
manner, the efFeft of a cruel dilemma, in which;
a.Avoman finds herfelf who has been feduced
through weaknefs, or overcome by force. The
alternative -is, her own infarnyj or the death'of

a being

128 An E S S a t ok

a being who' is incapable of feeling the lofs oB
life. How can {Iiq avoid preferring the laft to>
the inevitable mifery of herfelf and her tinhappy:
infant! Th& beft method of preventing this^
crime, would be efFe(^lually to proteft the weak-
woman from that tyranny which exaggerates
.all vices that cannot- be concealed under the
the cloak of virtue. -

I do not pretend to leflen that juft abhor- •
rence which thde crimes deferve, but- to difco-
ver the fources from whence, they fpring ; and^^
I think I may draw the following concluiions t
^hat the punl/hment of a crime cannot be jiij}^
( that 'isy - necejfary), if the laivs have not endea- -
iwired to preveM that crime by the heft means-'
which timeiS mid-xirciitnf a^^^^ ivmdd allow,,

Crimes and Punishments. 12^

C H A P, XXXIL
Of Suicide,

SUICIDE is a crime, which feems not to
admit of" pimilhment, properly (peaking for it
cannot be infiifted but on the innocent, or up-
on an infenfible dead body. In the iirft cafe, it
is unjufi: and tyrannical, for political liberty lup-
pofes all pimii'hiiieats entirely perlbnal ; in the
lecond, it has the fame effe<fl-, by way of exam-
ple, as the fcourging a flatue. Mankind love
life too well ; the obje^ls that furround them j
the feducing phantom of pleafure and hope, that
fweeteft error of mortals, which makes men
f^vallow fnch large draughts of evil, mingled
Avith a very few drops of good, allure them too
flrongly, to apprehend that this crime will ever
be common from its unavoidable impunity. The
laws are obeyed through fear of puniihment, but
death deftroys all fenfibility. What motive then
can relirain the defoerate hand of falcide ?

He who kills himfelf does a lefs injury to fo*- ■
ciety, than he who quits his country for ever ; .
for the otiier leaves Ms property behind him,
but this carries, with him at le.a:(l a part of his

liibilaace.

130 An E S S a Y on

fubftance. Befides, as the flrength of a fociety
eonfifts in the number of citizens, he who quits
one nation to refide in another, becomes a dou-
ble lofs. This then is the queftion : whether it 4
fee advantageous to fociety, that its members
fliould enjoy the unlimited privilege pf migra-
tion ?

Every law that is not armed with force, or
which, from circumftances, muft be inelfeftual,
fliould not be promulgated. Opinion, which
reigns over the minds of men, obeys the flow:
and indirect: impreiTions of the legiflator, but
reMs them when violently and direffly applied j
and ufekfs laws communicate their in fignificance
to the moft falutary, which are regarded more
as obflacles to be furmounted,. than as fifeguard^ •
of the public good. But further,, our percep-
tions being limited, by enforcing the, obfei-vance.^^^
of laws which are evidently ufelefsj wq d^flroy
the influence of the mofl falutary. ^
From this principle, a wife difpenfer of pub- "
lie happinefs may draw fome ufeful confequen--
ces, the explanation of which' would' carry me- ^
too far from my fubj-gft, which is to prove the "
inutility of making the. nation a prifon. Such a.
law is vain, becaufe, unlefs inacceffible' rocks, ,
or impaffable feas, divide the country from all
Qtthers, how will it be poifible to fecure every

point.

Crimes and Pcnishments. 131

fx)mt of the circumference, or how will you
guard the guards theinfelves ? Befides, this
crime, once committed, cannot be punifhed *,
and to punifh it before hand, would be to pu-
•nifli the intention and not the aftion ; the will,
which is entirely out of the power of human
laws. To punifti the abfent by confifcating his
•efFefts, be fides the facility of coliufion, which
"would inevitably be the cafe, and which, with-
out tyranny, could not be prevented, would put
ta ftop to all commerce with other nations. To
punifh the criminal when he returns, would be
to prevent him from repairing the evil he had
already done to fociety, by making his abfence
•perpetual. Befides, any prohibition would in-
■creafe the defire of removing, and would in-
fallibly prevent Grangers from fettling in the
i country.

What mufl we think of a government which
I .has no means, but fear, to keep its fobjefls, ia
their own country ; to which, by the firft im-
f 'preffions of their infancy, they are fo flrongly
: -attached. The mofi: certain method of keeping
men at home, is, to make them happy ; and it
h the intereft of every ftate to turn the balance,
not only of commerce, but of felicity, in favour
of its fubjecls. The pleafures of luxury are not
the. principal fources of this happinefs , though,,

by

13^ An essay on

^by preventing the too great accumulation ot
wealth in few hands, they become a necelTary
remedy againft the too great inequality of indi-
viduals, which always increafes with the pro-
.grefs of fociety.

When the populoufnefs of a coimtry does not
increafe in proportion to its extent, iuxuryfavours
<iefpotirm, for where men are mofl difperfed,
there is leaft induftry, the dependence of the poor
upon the luxury of the rich is greatefl, and the
imion of the opprefled againfl the oppreffors is
leaft to be feared. In fuch circumftances, rich
and powerful men more eafily command diftinc-
tion, refpfft and fervice, by which they are raifed
to a greater height above the poor; for men are
more independent the lefs they are obferved, and
are leaft obferved when moft numerous. On the
conrrary, when. the number of people is too great
in proportion to the extent of a country, luxury
is a check to defpotifm .; becaufe it is a fpur to
induftry, and becaufe the labour of the poor af-
fords fo many pleafures to the rich, that they
difregard the luxury of oftentation, which would
remind the people of their dependence. Hence
we fee, that in vaft and depopulated ftates, the
luxury of oftentation prevails over that of con-
venience ; but, in the countries more populousj
the luxury of convenience tends conftantly to
<iiminhb the luxury of oftentation.

I The

Crimes and Pukishments. 133

The pleafiires of luxury have this inconveni-
ence, that though they employ a great number
•of hands, yet they are only enjoyed by a few,
"whilfl; the reft, who do not partake of them, -feel
.the want more fenfibly, on comparing their ftate
with that of others. Security and libercy, re-
trained by the laws, are the bafis of happinefs,
and when attended by thefe, the plcafures of k-
Xury favour population, without which they be-
come the inftrument of tyranny. As the moft
noble and generous animals fly to folitude and
inacceffible deferts, and abandon the fertile plains
to man, their greateft enemy j fo men rcjeft plea-
fure itfelf, when offered by the hand of tyranny.

Bat to return. If it be demonftrated, that the
laws which imprifon men in their own country
are vain and unjuft, it will be equally true of
thofe which punifli fuicide, for that can only be
puniflied after death, which is in the power of
God alone ; but it is no crime, with regard to
man, becaufe the punifnment falls cn an inno-
cent family. If it be objefted, that the confidera-
tion of fuch a punifliment may prevent the crimes
I anfwer, that he who can calmly renounce the
.pleafure of exiftence j who is fo weary of life
as to brave the idea.of eternal mifery, will never
be influenced by the more diftant and lefs power-
ful c^iderations of family and children.

M CHAP

.134 An essay on

CHAP. XXXIIL
Of Smuggling.

SMUGGLING is a real offence againft
the fovereign and the nation ; but the punifh-
ment fhould not brand the offender with infamy,
becaufe this crime is not infamous in the public
opinion. By inflifting infamous punifhments,
for crimes that are not reputed fo, we deftroy
that idea where it may be ufeful. If the fame
punifliment be decreed for killing a pheafant as
for killing a man, or for forgery, all difference
between thofe crimes will ftiortly vanifli. It is
thus that moral fentiments are deftroyed in the
heart of man; fentiments, the work of many
ages and of much bloodflied ; fentiments, that
are fo flowly, and with fo much difficulty, pro-
duced, and for the eftabliftiment of which fuch
fublime motives, and fuch an apparatus of cere-
monies, were thought neceffary.

This crime is owing to the laws themfelves j
for the higher the duties, the greater is the ad-
\'antage, and, confequently, the temptation ;
which temptation is increafed by the facility of
perpetration, when the circumference that is

guarded

Crimes and Punishments. 13-^

guarded is of great extent, and the merchandife
prohibited is fmall in bulk. The feizure and lofs^
of the goods attempted to be fmuggled, together
v/ith thofe that are found along with them^ is
juft i but it would be better to leffen the duty,
becaufe men rifque only in proportion to the ad-
vantage expedted.

This crime being a theft of what belongs to
the prince, and confequently to the nation, why
is it not attended with infamy ? I anfwer, that
crimes, which men confider as prodnttive of no-
bad confequences to themfelves, do not intereft
them fufficiently to excite their indignation. Tlie
generality of mankind, upon whom remote con-
fequences make no impreffion, do not fee the
evil that may refuit from the nraftice of fmuo---
gling, efpecially if they reap from it any prefent"
advantage.-- They only perceive the lofs fuflain-
ed bythe prince. - They areaiot tlien interefled
in refafni<^ their efleem to the fmup-gler, as to-
one who has committed a theft or a forgery, or
other crim.es, by which they themfelves may
fufFer ; from this evident principle, that a fen-
fible being only interefts himfelf in thofe evils
with which he is acquainted.

Shall this crime, then, committed by one who
has nothing to lofe, go unpunifhed ? No. There
are certain Ipecies of fmuggling, which fo parti-
al 2. cularly;

An essay on

culai ly afFeCl the revenue, a part of government
lb effendal, and managed with fo much difficul-
ty, that they deferve imprifonment, or even fla-
very, but yet of fuch a nature as to be propor-
tioned to the crime. For example, it would be
highly unjuft that a fmuggler of tobacco fhould
fiifFer the fame punifhm^ent with a robber or af-*
faiiin J but it would be moft conformable to the
nature of the olfence, that the produce of his la-
bour iliouid be applied to the ufe of the crown>:
which he intended to defraud.

C H

CiliMEs and Punishments. - 1-3-7

C H A P. XXXIV.
Of Bankrupts. .

THE necelTity of goad faith in contrails
and tiie fupporc of commjerce, oblige the legifla-
ture to fccure, for thd creditors, .the perfons of
bankrupts. It is, however, iieceflkry to diftingnirii
between the fraudulent and the honcft banJcrupt.
The fraudulent .bankrupt fhould be punifhed in
the fame: manner, with him who' adulterates the-
coin J for to falfify a piece of coin,, which is a
pledge of the mutual obligations between citi-
zens, is not a greater, crime than to : violate the
obligations themlelves. But the bankrupt who,
after a ftrift examination, has. proved before
prpper judges, that either the fraud or.loffes of
others, or misfortunes unavoidable -by human
prudence, have flript him of his .fubftance; up-
on what, barbarous pretence is , he thrown -in-
to; prifon, and deprived of the only - remaining
good, the melancholy enjoyment of -mere liber-
ty? . Why is he .ranked with criminals, and in
defpair , com.pelled to repent of his .' honefty ?
Confcious ' of his innocence, ~ hd livfed eafy and
happy under the prote<5lion of thofe laws, which,
it ;iis true,, he. -violated, but not intentionally,

M ^ Laws

138 An E S S A Y on

Laws, diclated by the avarice of the rich, and
accepted by the poor, leduced by that univerfal
flattering hope which makes men believe, that
all unlucky accidents are the lot of others, and
the moft fortunate only their fhare. Mankind,
when influenced by the firft impreffions, love
cruel laws, although, being hibjeft to them them-
felves, it is the interell: of every perfon that they
ihould be as mild a? poffible ; but the fear of
being injured is always more prevalent than the
intention of injuring others.

But to return to the honeft bankrupt. Let
his debt, if you will, not be confidered as can-
celled till the payment of the whole 5 let him be
refufed the liberty of leaving the country with-
out leave of his creditors, or of carrying into
another nation that induflry which, under a pe-
nalty, he fhould be obliged to employ for their
benefit ; but what pretences can juifify the de- ^|
priving an innocent, though unfortunate man
of his liberty, without the leall utihty to his ,-1
creditors ?

- But, fay they, the hardfhips of confinement
Vv^il induce him to difcover his fraudulent tran-
faftions , an event that can hardly ht fuppofed,
after a rigorous examination of his coriduc^ and
affairs. But if they are not difcovered, he will
eicape unpuniihcd. It is^ I think, a maxirh of

govern-

i

CpvIMEs and Punishments. I3(j

government, that the importance of the political
inconveniences, arifing from the impunity of a
crime, are direcfly as the injury to the pubiiCj
and inverfely as the difficuky of proof.

It will be neceflary to diftinguifli fraud, at-
tended with aggravating circumftances, from,
limple fraud, and that from perfeft innocence.
For the firft, let there be ordained the fame pu-
nirnment as for forgery ; for the fecond, a lefs
punifhment but with the lois of liberty \ and if
perfeft ly honeft, let the bankrupt himfelf chufe
the method of re-eftabliiliing himfelf, and of
fitisfying his creditors; or if he fliould appear
not to have been ftrictly honeft, let that be de-
termined by his creditors : but thefe diftinftions
lliould be fixed by the laws, \^'hich alone are
impartial, and not by the arbitrary and dan-
gerous prudence of judges *.

With

* If may be aljedged, that the intereil of commerce and
property fliouJd he fecnred ; but commerce and property are
not ihe end of the focial compact, 'but the means of obtain-
ing that end; and to oppofe all the members of fociety to
cruel laws, to prelerve them from evils, neceffiriJy occafioned
by the infinite combinations which reuiit from theacftual (late
«>f political .fdcieties, woiihi be to make the end lubfervient to
flie means, a paraiogifm in all fciences, and particularly in
jiolitics. lu tlie former editions cf this work, I myfelf fell
M5to:this error, when I Taid that the honeft bankrupt ftiould
kept in cuflody, as a pledge for iiis debts, or employed

E:'S S A'Y" o n

Y7ith ' what eale might a Sagacious legiflator
prevent.the greatefi: part of fraudulent barikrupt-^
cies, and remedy the misfortunes that befai the
honeft aad indufirious ! A public regifler of ali
contradlsj with the . liberty of confulting it, ■■ al-
lowed to every citizen ; a pubHc fund formed
by a contribution of the opulent merchants for
the timely affiflance of unfortunate induftry, were
eitabliftiments that could produce no real incon-
veniencesj and many advantages. But unhappily
the mofl: ilmplej the- eafieJf, yet the wifeft laws,
that wait only for the nod of the legiflator, to
dilFufe through nations wealth, power,> and feli-
city j laws which would be regarded by future
generations with eternal gratitude, are either un-
known, or rejeffed. A reftlefs and trifling fpirit,
the timid prudence of the prefent moment, a
diflruil: and averfion to the moft ufeful novelties^
pofTefs the minds of thofe who are empowered
to regulate the a<Slions of mankind,

as a flave to work for his creditors. I am afhamed of ha-
ving adopted fo criul an orinion. 1 have been acciifed of
impiety; I did not defervc ij. I have been acciifed of fedi-^
tion ; I deferved it as little, Bnt I infulted all. the rights of
hilmanity, and was never reprpachsd^ - ^

DHAE

Crimes and Punishments.

141

C II A P. XXXV.
Of SafiBuaries.

ARE fanftuaries jufl? Is a convention be--
tween nations, mutually to glvt^ up their cri-
msnalsj iifeful ?

In the whole extent of a political ftate, there
fhould be no place independent of the laws.
Their po»ver Ihould follow every fubject, as the
fliadow follows the body. Sanfluaries, and im-
punity, diiTer only in degree, and as the efie^ of
paniiliments depends more on their certainty,
than their greatnefs, men are more ftrongly in-
vited to crimes by fandtaaries, than they are de-
terred by punirnmenc. To increafe the number of
ian'fluaries, is to ereft fo many little fovereign-
ties ; forj when the laws have no power, new
bodies v;ill be formed in oppofition to the pub-
lic good, and a fpirit eftablifiied contrary to
that of the ftate. Hiftory informs us, that from
' the ufe of fan6luaries have arifen the greateft
revolutions in kingdoms, and in opinions.

Some have pretended, that in whatever coun-
try a crime, that is, an acSlion contrary to the
laws of fociety, be committed, the criminal may

be

1 42 A N ■ E S S A Y ON'

be jiiftly puniflied for it in any other ; as if the
eharafter of fubjeft were iodeiible, or fynoni-
moLis with, or worfe than that of llave j as if a
man could Yivq in one country, and be fubjeft
to the laws of another, or be accountable for
his adlions to two fovereigns, or two codes of
laws, often co ntradiftory. There are alfo who
think, that an aft of cruelty committed, for ex-
ample, at Conftantinople may be puniflied af
Paris ; for this abftrafted reafon, that he who
offends humanity, (liould have enemies in all-
mankind, and be the objeft of univerfal execra-
tion ; as if judges were to be the knights-errant -
of human nature in general, rather than guar-
dians of particular conventions between men.
The place of puniftiment can certainly be no
other, than that Mdiere the crime was commit-
ted j for the neceffity of punifhing an individual|
for the general good fubfifls there, and there '
only. A villain, if he has not broke through
the conventions of a fociety of which, by my
fuppofition, he was not a member, maybe fear-^
ed, and by force baniflied and excluded from
that fociety ; but ought not to be formally pu-
iiifhed by the laws, which were only intended
to maintain the focial compaft, and not to pu-
iihli the intrinlic malignity of actions.

V\^heth.er

Crimes and Punishments. ' 143

Whether it be ufeful that nations fliould mu-
i:ually deliver up their criminals ? Although the
certainty of there being no part of the earth
where crimes are not punhhed, may be a means
of preventing them, I fliall not pretend to deter-
mine this queftion, until laws more conformable
to the neceffities and rights of humanity, and
^^until milder pmiifliments, and the abolition of
the arbitrary power of opinion, fliall afford fe-
.curity to virtue and innocence when oppreffed 5
-^and until tyranny fliall be confined to the plains
iof Afia, and Europe acknowledge the univerfal
;£mpire of reafon, by which the interefts of fo-
vereigns and fubjeds are beft united. ■

XX

An essay on

CHAP. XXXVL

Of Rewards for apprehending^ or hilling Cri-
minals.

LET us now inquire, whether it be advan-
tageous to fociety, to fet a price on the head of
a criminal, and fo to make of every citizen an
executioner. If the offender hath taken refuge
in another ftate, the fovereign encourages his
fubjefts to commit a crime, and to expofe them-
fel ves to a jutt punifliment ; he infults that na-
tion, and authorifes the fubjecf s to commit on
their neighbours fnnilar ufurpations. If the cri-
minal ftiil remain in his own country, to fet a
price upon his head, is the ftrongeft proof of
the weaknefs of the government. He who has
flrength to defend himfelf, will not purchafe the
afliftance of another. Befides, fuch an edift
confounds all the ideas of virtue and morality,
already too wavering in the mind of man* At
one time treachery is puniihcd by the laws, at
another encouraged. With one hand the le-
giilator flrengthens the ties of kindred and
friendfhip, and with the other rewards the vio-
lation of both. Always in contradicfion with

I hirafelfj,

Grimes and Punishments. 145

iiimfelf, now he invites the fufpefting minds of
men to mutual confidence, and now he plants
diftrufl in every heart. To prevent one crime,
he gives birth to a thoufand. Such are the ex-
pedients of weak nations, whofe laws are like
temporary repairs to a tottering fabric. On the
contrary, as a nation becomes more enlightened^
honefty and mutual confidence become more
necefTary, and are daily tending to unite with
found policy. Artifice, cabal, and obfcure and
indireft a<5lions are more eafily difcovered, and
the intereft of the whole is better fecured-
againft the pafiions of the individual.

Even the times of ignorance, when private
virtue was encouraged by public moralitj^, may
afford inftruftion and example to more en-
lightened ages. But laws which reward trea-
fbn, excite clandeftine war, and mutual diftrufr,
oppofe that neceifary union of morality and
policy, which is the foundation of happinefs,
and univerfal peace.

N , CHAP,

145 An essay on

CHAP. XXXVII.

Of Attempts i Accomplices, mid Pardon.

T H E laws do not punifh the intention ;
neverthelefs an attempt, which manifefts the in-
tention of committing a crime, deferves a pii-
nifliment, though lefs, perhaps, than if the crime
were aftually perpetrated. The importance of
preventing even attempts to commit a crime fuf-
ficiently authorifes a punifhment j but as there
may be an interval of time between the attempt
and the execution, it is proper to referve the
greater punifhment for the acflual commiilion,
that even after the attempt there may be a mo-
tive for defLfting.

In like manner, with regard to the accompli-
ce's, they ought not to fuifer fo fevere a punifli-
ment as the immediate perpetrator of the crime.
But this for a different reafon. When a num-
ber of men unite, and run a common rilk, the
greater the danger, the more they endeavour to
diftribute it equally. Now,, if the principals be
punifhed more feverely than the accelTaries, it
■will prevent the danger from being equally di-
vided, and will increafe the difficulty of finding
a perfoa to execute the crime, as his danger i&

greater

Crimes and Punishments. 147

greater by the difference of the- punifliment.
There can be but one exception to this rule|
and that is, wlien the principal receives a reward
from the accomphces. In that cafe, as the dif-
ference of the danger is compenfated, tlie pn-
nifhment ihouid be equaL Thefe reflexions may
appear too refined to thofe who do not conil-
der, that it is of great importance, that the
laws fhoiild leave' the afFociates as few means as
p,ofrible of agreeing among themfelves.

In fome tribunals, a pardon is orFered- to aa
accomplice in a great crime, if he difcover his
a/TocIates. This expedient has its advantages.
The difadvantages are, that the law authorlfes
treachery, which is deteiled even by the villains
themfelves j and introduces crimes of cowardice,
which are much more pernicious to a nation
tlian crimes of courage. Courage is not com-
mon, and only wants a benevolent power to
direft it to the public good. • Cowardice, on
the contrary, is a frequent, felf-interefled, and
contagious evil, which can never be improved
into a virtue. Befides, the tribunal, which has
recourfe to this method, betrays its fallibility,
and the laws their weaknefs, , by imploring the
afhllance of thofe by whom they are violated.

The advantages are, that it prevents great
crimes, the efFefts of which being pubhc, and the^

N a - pei^gtrators ^

148 An E S S- A Y o n

perpetrators concealed, terrify the people. It
alfo contributes to prove, that he who violates
the laws, which are public conventions, will alio
violate private compafts. It appears to me, that
a general law, promifmg a reward to every ac-
complice who difcovers his ailociates, would be
better than a ipecial declaration in every parti-
cular cafe ; becaufe it would prevent the union
of thofe villains, as it would iofpire a mutual
dlftruft, and each would be afraid of exnofnig
himfeif alone to danger. The accomplice,
however, diould be pardoned, on condition of

traniportation But it is In vain,

tiuu I torment myfelf with endeavouring to ex-
tinguifli the remorfe I feel in attempting to in-
duce the facred laws, the monument of public
confidence, the foundation of nutnan morality,,
to authoril'e diffimulation and periidy. But what'
an example does it offer to a nation, to fee the
interpreters of the laws break their promife of
pardon, and on the ftrength of learned fubtleties,
and to the fcaudal of public faith, drag him to
punifliment who hath accepted of their invita-
tion ! Such examples are not unconnnon, and
this is the reafon, that polidcal fociety is re--
garded as a complex machine, the fprings of
which are moved at pleafiire by the moll dex-
terous or moft, pov/erful.,

CHAT.

OrI'MEs and Punishments. i^p-

C H A P. XXXVIIL ^

Of fuggejlive Interrogations, •

THE -laws forbid fuggejlive interrogations ->
that is, according to tile civilians, queftions which, -
mth regard to the^ circumftanees of the crime^ <
are Jpecial whtn thty fhould hQ general ; or, in -
other words, thofe queflions which, having an
immediate reference to the crime, fuggell to the
criminal an immediate anfwer. ■ Interrogations,
according to the lawy ought to lead to the faft-
indire^lly and obliquely, but never direftly or
immediately„ - The intent of -this injunftion is, '
either that they flioujd not fuggeft to the accufed
an immediate anfwer that might acquit him, or '
that they think it contrary to nature that a man
fhould accufe himfelfo ■ But, whatever be the
motive, the laws- have fallen into a palpable con- •
tradition, in condemning fuggeftive interroga-
tions, whilft they authorife torture. - Can there
be an interrogation more fuggeftive than pain ?
Torture will fuggefl to a robuft villain an oblli- -
nate filence, that he- may -exchange -a greater '
panifliraent for a lefs j and fo' a feeble man con- '
feffioa, to relieve him from the preient pain^

N 3 . which

150 An E S S A Y on

^ which affefts him more than the apprehenfion
of the future. If a fpecial interrogation be
contrary to the right of nature, as it obliges a
man to accufe himfelf, torture wiil. certainly do
it more effeftually. But men are influenced
more by the names than the nature of things-.

He who obftinately refufes to anfwer the in-
terrogatories, deferves a puniihment, which
ihould be fixed by the laws, and that of the fe-
vereft kind that criminals fhould not, by their
iilence, evade the example which they owe the
public. But this punifhment is not neceflary
when the guilt of the criminal is; indifputable,
becaufe in that cafe interrogation is ufeiefs, as is
Hkewife his confeffion, when there are, without
it, proofs fufHcient. This laft cafe is mofl: com-
mon, for experience fhews, that in the greatefl:
number of criminal profecutions, the. culprit
pleads not guilty v;

<:h AP.

Chimes

and Punishments.

C H A P. XXXIX.

Qf a particular Kind of Crimes. -

THE reader will perceive that I have omit--
^ted fpeaking of a certain clafs of crimes, which
has covered Europe with blood, and raifed up
thofe horrid piles, from whence, midfl: clouds of
whirling fmoke, the groans of human viftims,
|he crackling of their bones, and the frying of
their ftill panting bowels, were a plealing fpec-
tacle and agreeable harmony to the fanatic mul-
titude. But men of underftanding will perceivey
that the age and country in which I live wiiH
not permit me to inquire into the nature of this '
crime. It were too tedious, and foreign to my
fubjeft, to prove the neceflity of a perfefl uni-
formity of opinions in a ftate, contrary to the
examples of many nations ; to prove that opi-
nions, which differ from one another only in
fome fubtile and obfcure diftinftions, beyond
the reach of human capacity, may neverthelefs
dillurb the public tranquillity, unlefs one only
religion be eftablilhed by authority j and that
fome opinions, by being contrafted and oppofed
to each other, in their coUifion Arike out the

truth ;

152

An E S say on

truth ; whilfl others,- feeble in themfelves, re-
quire the fupport of power and authority. It
■would, I fay, carry me too far, were I to prove,
that, how odious foever is the empire of force
over the opinions of mankind, from whom it
only obtains diffimulation followed by contempt;
and although it may feem contrary to the Ipirit
of humanity and brotherly love, commanded us
by reafon, and ' authorit5'', which we ■ more re-
fpe«5t, it is nevertheieis neceffary and indifpenfi-
ble. We are to bdievCj that all thefe paradoxes
are refoved beyond a doubt, and are conform-
able to the true intereil of mankind, if pradlifed
by a lawful authority. I write only of ■ m'jw^x
which violate the laws of nature and the foeial
contrail, and not of j^w, even the temporal
punifhments of which mufl: be determined from
other principles than thofe of a - limited humm -
pbilofophy.

C'H: A P,

Cr.imt;s and PtiNisHMENTs. i53_

C H A P. XL.'
Of f {life Ideas of Utility,

A PRINCIPAL fource of errors and in-
juftice, are falfe ideas of atility. For example \
that legiflator has faife ideas of utility, who cqn-
fiders particular more than general convenien-
ces; who had rather cocomand the fenti'ments
of mankind than- excite thein,, and dares fay to-
,reafon, " Be thou, a flave-," .who wonld lacrl-
fice a thoLifand real advantages to the fear of
an imaginary or triiiing inconvenience , who
.would deprive men oF the ufe of fire fur fear
of being biirntj and of v/ater for fear of their
.being drowned^ and who know of no means
of preventing evil but by deilroying it.

The laws of this nature, are thofe which for-
bid to wear arms, difarming thoie only who are
not difpofed to commit the crime which the laws
mean to prevent. Can it be fuppofed, that thofe
who have the courage to violate the moft facred
laws of humanity, and the mofl: important of
the code, will refpecl the leis confiderable and
arbitrary injuncfions, the violation of which is
fo ealVj and of lb li.ttle comparative importance ?

Does

An essay on

Does not the execution of this law deprive the
fiibje<5l-.of that perfonal Hbercy, fo dear to man-
kind and to the wife legiflator j and does it not
fubjea: the innocent to all the difagreeable cir-
cumftances that fhould only fall on-the guilty ?
It certainly makes the fituation of the affimlted
worfe, and the affailants better, and rather en-
courages than prevents murder, as it requires
lefs courage to attack armed than unarmed per-
fons.

It is a falfe idea of utility, that would give to a
multitude of fenfible beings that fymmetry and
order, which inanimate m'atfer is -alone capable^
of receiving; to negleft the prefect, which are ■
the only motives that aft with force and con-
jftancy on the multitude, for the more diftant^,.
whofe impreHi-ons are weak and tranfitory, un^
lefs increafed by that ftrength of imagination fo
very uncommon among mankind-. Finally, that
is a falfe idea of utility, which, facrificing things
to names, feparates the public good from- that of '
individiTals. ,

There is this difference between a ftate of fo-.
eiety and'a flate of nature, that a favage does
no more mifchief to another than is neceifary to
procure forae benefit to himfelf ; but a ma^ in
fociety is fometimes tempted, from a fault in -
the Jawsj to injure another, without any profpeft

of.-

(Crimes and Punishments. 155

of advantage. The tyrant infpires his vaJTals with
xeas and fervility, which rebound upon him with
double force, and are the caufe of his torment.
Fear, the more private and domeftic it is, the lefs
dangerous is it to him who makes it the inftru-
ment of his happinefs 5 but the more it is pub-
lic, and the greater number of people it affefls,
'the greater is the probability that fome mad, det
operate, or defigning perfon will feduce others to
^his party, .by flattering expe6i:ations j and this
will be the more eafdy accomplilhed, as the
danger of the enterprize will be divided amongft
,a greater number, becaufe the value the unhappy
fet upon their exiflence is lefs, as their mifery is
greater.

CHAR

An ess a Y on

CHAP. XLL

Of the Meam of prevent'mg Crimes.

IT is better to prevent Grimes, than to pu-
tiilli them. This is the fundamental principle of
good legiflation, which is the art of condudi:ing
men to the maximum of happinefs, and to the
minimum of mifery, if we may apply this mathe- \
matical expreffion to the good and evil of life,
put the means hitherto employed for that pur-
ipole, are generally inadequate, or contrary to
':the end propofed. It is impoffible to reduce the
tumultuous aftivity of mankind to abfolute re-
gularity, for, midft the various and oppofite at-
traftions of pleafure and pain, human laws are
not fufficient entirely to prevent diforders in fo-
ciety. Such, however, is the chimera of weak -
men, when invefted with authority. To prohibit
a number of indifferent aftions, is not to prevent
the crimes which they may produce, but to create
new ones ; it is to change at will the ideas of
virtue and vice, which, at other times, we are
told, are eternal and immutable. To what a
fituation fhould we be reduced, if every thing
were to be forbidden that might polTibly lead to

I a crime ?

Crimes and Pu^iishments. ^57'-

a crime ? We mull: be deprived of tiie ufe of
mir fenfes. For one motive that induces a man
to commit a real crime, there are a thoufand
tvhich excite him to thofe indifferent aftionSj
whieh are called crimes by bad laws. ■ If their,-
uhe probability that a crime will be committed be ,
in proportion' to the number of motives, to ex-
lend the fphere of crimes will be to increafe that
probability. The generahty of laws are only
•exclufive privileges j the tribute of all to the ad-
i^antage of a few.

Would you prevent crimes ? Let the laws be
clear and fimple ; let the entire force of the na-
tion be united in their defence ; let them be in-
tended rather to favour every individual, than
any particular clafTes of men j let the laws, be
feared, and the laws only. The fear of the
iaws is falutary, but the fear of men is a fruitful
.and fatal fource of crimes. Men enflaved are
more voluptuous, more debauched, and more
cruel than thofe who are in a ftate of freedom.
Thefe ftudy the fciences, the intereft of nations,
have great objedls before their eyes, and imitate
them ; but thofe, whofe views are confiaed to
the prefect moment, endeavour, midfl: the di-
■flrafflion of riot and debauchery, to forget their
fituatiouj accuflomed to the uncertainty of all
•events, for the laws determine none, the con-

O fequence

158

An essay on

Tequence of their crimes become problematical,
which gives an additional force to the ftrength
of their paffions.

In a nation, indolent from the nature of the
climate, the uncertainty of the laws confirms
and increafes men's indolence and flupidity. In
a voluptuous but aftive nation, this uncertainty
occafions a multiplicity of cabals and intrigues,
which fpread diftruft and diffidence through the I
hearts of all, and diffimulation and treachery are
the foundation of their prudence. In a brave '
and powerful nation, this uncertainty of the laws
is at laft deflroyed, after many ofcillations from
liberty to flavery, and from flavery to liberty
again.

4

CHAP,

Grimes

and Punishments.

CHAP. XLIL

Of the Scknces.

WOULD you prevent crimes ? Let liberty
be attended with knowledge. As knowledge ex-
tends, the difadvantag^s which attend it diminifhj
and the advantages increafe. A daring impoftorj
who is always a man of fonie geniuSj is adored
by the ignorant populace, and delpifed by men
of underflanding. Knowledge facilitates the
comparifon of objefts, by fhewing them in dif-
'ferent points of view. "When the clouds of ig-
norance are dlfpelled by the radiance of know-
ledge, authority trembles, but the force of the
■laws remains immoveable. Men of enlightened
underftanding mail: necelTarily approve thofe ufe-
ful conventions, which are the foundation of
public fafety ; they compare, with the higheft
fatisfaefion, the inconfiderable portion of liber-
ty of which they are deprived, with the fum to-
tal facrificed by others for their fecurityj obfer-
ving that they have only given np the pernicious
liberty of injuring their fellow-creatures, they
blefs the throne, and the laws upon which it is
edabliflied.

O 2 It,

i6o An E S S A Y oisr

It is falfe that the fciences have always been
prejudicial to mankind. When they were fo, the
evil was inevitable. The multiplication of the
human fpecies on the face of the earth introdu-
ced war, the rodiments of arts, and the firft
laws, w4:iich were temporary compafts ariiing
from neceliity, and perifoing with it. This was
the firfl philofophy, and its few^ elements were
jiift, as indolence and want of fagacity, in the
early inhabitants of the world, preferved them
from error.

But necelTides increallng with the number of
mankind, ftronger and more lafting impreffions
were neceffary to prevent their frequent relapfes
into a ftate of barbarity, which became every day
more fatal. The firfi: religious errors, which
peopled the earth with falfe divinities, and crea-
ted a world of invilibie beings to govern the vi^
fible creation, were of the utm.oft fervice to man-
kind. The greatefl benefaftors to humanity were
thofe who dared to deceive, and led phant ig-
norance to the foot of the akar. By prefenting
to the minds of the vulgar things out of the
reach of their fenfes, which fled as they purfued^
and always eluded their grafp ; wdiich, as they
never comprehended, they never defpifed, their
different palTions were united, and attached to a
fingle objeft. This \vas the firfl transition of all

nati©ns

Crimes and Punishments. i6i

nations from their favage ft ate. Such was the
necelfary, and perhaps the only bond of all fo-
Gieties at their firft formation.. I fpeak not of thcs
chofen people of God, to whom the mofl: extra-
ordinary miracles, and the mofi: fignal favours^
fupplied the place of human, policy. But as it is
it.he nature of error to fubdlvidc itfelf ad injinitumy^
fo the pretended knowledge which fprung. from-
it transformed mankind into a- blind- fanatic mul-
titude, jarring, and deftroying each other in the
labyrinth in which they were inclofed : hence it
is not wonderful,, that fome fenfible and philo-
fophic minds lliould regret the ancient flate of
barbarity. This was the firfl: epocha ia whick
knowledge, or rather opinions, were, fatal.

The fecond may be found in the difficult and
terrible paflage from error, to truth,, from dark-
fiiefs to light. The vident fhock between a mafs
of errors, ufeful to the few- and powerful, and
the truths fo important to the many and the
weak, with the. fermentation of paffions excited
on that oecafion, were produ<5live of infinite
evils to unhappy mortals. In the fludy of hifto-
ry, whofe principal periods, after certain inter-
vals, much referable each otherj .we frequently
find, in the neceflliry pafTage from the obfcurity
of ignorance to the light of philofophy, and from.
tyranny to liberty, its natural confequence, one.

i62 An E S S A Y ON

generation facrificed to the happinefs of the next.
But when this flame is extinguiflied, and the
world delivered from its evils, truth, after a
■very flow progrefs, fits down with monarch s oa
the throne, and is worlliipped in the' afTemblies
of nations. Shall We then believe, that light dif-
fufed among the people is more defl:ru(5Hve thaa
darknefs, and that the knowledge af the rela-
tions of things can ever be fatal to mankind ?

Ignorance may indeed be lefs fatal than a
fmall degree of knowledge, becaufe this adds,
to the evils of ignorance, the inevitable errors
of a confined view of things on this fide the
bounds of truth J but a man of enlightened un-
derflanding, appointed guardian of the laws, is
the greateft blefling that a fovereign can befiow
on a nation. Such a man is accuftomed to be-
^ hold truth, and not to fear it ; unacquainted
with the greateft part of thofe imaginary and in-
fatiabie neceffities, which fo often put virtue to
the proof, and accuftom'ed to contemplate man-
kind from the moft elevated point of view, he
confiders the nation as his family, and his fellow
citizens as brothers ; the diftance between the
great and the vulgar appears to him the lefs,,
as the number of mankind he has in view is
greater.

The

Crimes and Pui^jshments. id'g;

The philofopher has neceilities and interefls
unknown to the vulgar, and the chief of thefe
is not to belie in public the .principles he taught
in obfcurity, and the habit of loving virtue for
its own fake. A few fuch philofophers would
conflitute the happinefs of a nation ; which how-
ever would be but of fliort duration, unlefs by-
good laws the number were fo increafed as to-,
ieffen the probability of an improper choice.

CHAP.

i64 An essay o n

CHAP. XLIII.

Of Magijlrates.-

ANOTHER method of preventing crimes-
is, to make the obfervance of the laws, and
Hot their violation, ilie iiitereil: of the magi*
ftrate.

The greater the number of thofe who confli-
tute the tribunal, the lefs is the danger of cor-
ruption j becaiife the attempt will be more diffi-
cult, and the power and temptation of each in-
dividual will be proportionably lefs«- If the fo-
vereign, by pomp and the aufterity of edifts,
and by refufing to hear the complaints of the
oppreffed, accuftom his fubje^ls to refpe6t the
magiftrates more than the laws, the magiftrates .
will gain indeed^, but it will be at the expence
©f public and private futurity,.,

CHAFI

Crim.es and

Punishments.

165

CHAP. XLI\r.

Of Rewards.

YET another method of preventing crimes
isj to reward virtue. Upon this fubjeft the laws
cjf a\\ nations are fiient. If tlie rewards, pro-
pofed by academies for the difcovery of nfeful
truths, have increiifed our knowledge, and mul-
tiplied good books, is it not probable that re-
wards, diftributed by the beneficent hand of a
fovereign, would alfo multiply virtuous anions ?
The coin of honour is inexhauftible, and is
abundantly fruitful in the hands of a prince
who diftrlbntes it wifely.

CHAP.

i66 An essay on

C H A P. XLV. _

Of Education,

FINALLY, the moft certain method of
preventing crimes, is to perfect the fyflem of
education. But this is an objeil too vaft, and
exceeds my plan ; an objeft, jf I may venture
to declare it, which is lb mtimateiy connected
with the nature of government, that it will al-
ways remain a barren fpot, cultivated only by a
few wife men.

A great man, who is perfecuted by that
world he hath enlightened, and to whom we
are indebted for many important truths, hath
moft amply detailed the principal maxims of
ufeful education. This chiefly confifts in pre-
fenting to the mind a fmall number of feie6l ob-
jects ; in fubftituting the originals for the co-
pies, both of phyfical and moral phenomena ;
in leading the pupil to virtue by the eafy road of
fentiment, and in withholding him from evil by
the infallible power of neceflary inconvenien-
ces, rather than by command, which only ob-
tains couQterfeit and momentary obedience.

I~X -Ai.

Crimes and Punishments. i6y

CHAP. XLVI.

Of Pardons.

AS punidiments become more mild, clemenc3r
and pardon are lefs neceflary. Happy the na-
tion in which they will be confidered as danger-
ous ! Clemency, which has often been deemed
a lufficient fubflitute for every other virtue in
fovereigns, Ihould be excluded in a perfeft le-
glflation, where punifliments are mild, and the
proceedings in criminal cafes regular and expe-
ditious. This truth will feem cruel to thofe who
Jive in countries, where, from the abfurdity of
the laws, and the feverity of puniOiments,
pardons, and the clemency of the prince, are
neceffary. It is indeed one of the noblefl pre-
rogatives of the throne, but, at the fame time, a
tacit difapprobation of the laws. Clemency is
a virtue which belongs to the legiflator, and not
to the executor of the laws ; a virtue which
ought to fliine in the code, and not in private
judgment. To fliew mankind, that crimes are
fometimes pardoned, and that punifhment is not
the neceffary confequence, is to nourifh the flat-
tering hope of impunity, and is the caufe of
their confidering every punifhment inflided as

an

i6i An essay on

an aft of injuflice and oppreifion. The princCj
in pardoning, gives up the public fecurity in fa-
vour of an iadividual, and, by his ill-judged
benevolence, proclaims a public a£l of impunity.
Let, then, the executors of the laws be inex-
orable, but let the legiflator be tender, indul-
gent and humane. He is a wife archite6f, who
erefts his edifice on the foundation of felf-love,
and contrives, that the intereft of the public
fhall be the interefl: of each individual ; who
is not obliged by particular laws, and irregular
proceedings, to feparate the public good from
that of individuals, and ereft the image of pub-
lic felicity on the bafis of fear and diflruft; but,
like a wife philofopher, he will permit his bre-
thren to enjoy, in quiet, that fmall portion of
happinefs, which the immenfe fyflem, eftablifhed
by the firft caufe, permits them to tafte on this
earth, which is but a point in the univerfe.

A fmall crime is fometimes pardoned, if the
perfon offended chufes to forgive the offender.
This may be an aft of good-nature and huma-
nity, but it is contrary to the good of the public.
The right of punifhifig belongs not to any indi-
vidual in particular, but to fociety in general,
or the fovereign. He may renounce his own
portion of this right, but carfnot give up that
of others.

2 CHAP,

Crimes and Punishments.

1%

C H A P. XLVIL

Conclufiotu

I CONCLUDE with this refleaion, that
the fe verity of puniChments ought to be in pro-
portion to the ftate of the nation. Among a
people hardly yet emerged from barbarity, they
iliould be moft fevere, as flrong impreffions are
required J but in proportion as the minds of men
become foftened by their intercourfe in fodety,,
the feverity of ptmifhrnents fliould be diminiflied,
if it be intended, that the necelfary relation be-
tween the objeft and the fenfation fliould be
maintained.

From what I have written reflilts the follow^
ing general theorem, of confiderable utility,
though not conformable to cuftom, the common
legiflator of nations.

That a punijhment may not he an aB of vio-
lence, of -one or of many, agaivji a private mem'
ber of fociety, it fhould he puhlicy immediate and
neceffary the leaf poffhle in the cafe given ;
proportioned to the crimcy and detefmined by the
' faius,

P A

r

C O M M E N T A R Y

On the book of

CRIME a AND PUNISHMENTS..^

CHAP. I.

jT/Sf Occafion of this CGmmentary.-

HAY l^O.- read, with infinite fatisfaff IoDj ,
the little^ book on Crimes and Punifh-
jnentSj which in,moralItyj as in medicine, may;,
be compared to one of thofe few remedies, ca-
pable of alleviating our fufFerings ; I flattered
myfelf that it would be a means of foftening the
remains of barbarifm in the laws of many na-
tions ; I hoped for fome reformation in mankind,
when I was informed, that, within a few miles
of m.y abode, they had juft ■ hanged a girl of
eighteen, beautiful, w^ell made, accomplilhed,
and of a very reputable family.

She was culpable of having fufFered herfelf to
be, got. with child, and alfo, of having aban-

R 2.. doned

172 A COMMENTART on

doned her infant. This unfortunate girl, flying^'
from her father's houfe, is taken in labour, and,
without afliftanGe, is delivered of het BilF^en
by the fide of a wood. Shame, which in -the
fex is a powerful paffion, gave her flrength to'
i-eturn home^ and to conceal her fituation. She:
left her child expofed ; it is found the next
morning ; the mother is dlfcovered, condemned
and executed.

The firft fault of this unhappy vi6Hm ought
to have been concealed by the family, or rather
claims the prote(5lion of the laws, becaufe it was
incumbeiit on her feducer to repair the injury he.
had done ; becaufe weaknefs hath a right to in-
dulgence ; becaufe concealing her pregnancy may
endanger her life 5 becaufe declaring her condi>-
tion deftroys her reputation, and becaufe the.,
tx^'ifficuky of providing for her infant is a great
adcfftional misfortune.

Her fecond fault is more criminal. She:
abandons the fruit of her weaknefs, and ex-
pofes it to perifh.

But becaufe a child is dead, is it abfolutely
• iiecelTary to kill the mother ? She did not kill,
the child. She flattered herfelf, that forae paf-
ienger would have compaiTion on the innocent
babe. It is even poiTfole that flie might intend to
feturii and providafor it | a fentiment fo natural

ia.

GkIMES and PUNISHME^N'TS. . 173;

> ill the breafi: of a mother, that it ought to be "
p?-efutned. The law m the country of which I
am fpeaking, is^ , indeed, pofitively agaialf her. •
But is it not an unjuft, inhuman, and pernicious
law ? Unjujiy becaufe it makes no dilHndlioa
between her who murders, and her who aban-
dons her i infant ; ■- inhu?nan^ becaufe it puniflies
with death a too great defire of concealing a-
weakriefs ; j!)^^^^^//, becaufe it deprives the
- flate of a fruitful fubjeft, in a country that
wants inhabitants.

Cliarity hath not yet eftablifhed, in that na-
tion, houfes of reception for expofed infants.
Where charity is wanting, the law is always
cruel. It were much better to prevent, than to
think only of punifhing thefe frequent misfor-
tunes-. The proper objeft of jurifprudence is, <
to hinder the commiffion of crimes, rather thaii'
condemn to death a weak woman^ when it is '^
evident that her tranfgreffion was unattended
with malice^ and that ilie -hath already been fe-
verely punched by the pangs of her own heart.-

Infure, as far as poifible, a refource to thofe -
who ihall be tempted to do evilj and you v/Ul -
have lefs to punifh.

chap:

A COMMENTARY os.

CHAP. XL

Cf Pun'i foments,

THIS misfornme^ and this very Hard law,
■with which I was fo fenfibiy aiTe6ted, prompted
me to aid my eyes on the cnniinal code of na-
tions. The humane author of the Effay on
Crimes and Punifhments, had but too much
caufe to complainj that the latter frequently ex-
ceed the former, and are foraetimes detrimental
to the ftate they were intended to ferve.

Thofe ingenious punifhments, the ne plus
■ultra of the human mind, endeavouring to
render death horrible, feem rather the inven-
lions of tyranny than of juflice. .

The punifhment of the nvheel was jfirA intro-
duced in Germany in the times of anarchy, when
thofe who ufurped the regal power refolved to
terrify, with unheard-of torments, thofe who
.iliould difpute their authority. In England they
ripped open the belly of a man guilty of high-
treaforiy tore out his heart, dafhed it in his facCj
and then threw it into the fire. And wherein
did this high-treafon frequently confifl ? In ha-
I'ing been, during a gr/il war, faithful to an

unfor-

Crimes and FuNrsHMENTs,. 1,75

unfortunate king ; or in having fpoken freely
on the doubtful right of the conqueror. At
length, their manners were foftened ; thev con-
tinued to tear out the heart, but not till after
the death of the offender. The apparatus is-
dreadful, but the. death is mild, it death can
ever be mild.

CHAR

1^6 A. COMMENTARY o^m

G H A P. III. .

Oh the P.unijhment of Heretics. .

THE denimciation of death to -thofe whoj,,
in certain dogmas, differed from the eftabilihed -
church, was peculiarly the a 6V of tyranny. No '
Ghriftian emperor, beiore the tyrant Maximus, ,
ever thought of condemning a man to punifh- •
ment merely for points of controverfy. It is true, ,
indeed, that two Spanifh bifhops purfued to death
the Prifcirianifts under Maximus; but it is alfo '
true, that this tyrant was willing to gratify the
reigning party with the blood of heretics. Barba- -
rity and juflice were to him indifferent, jealous .
of Theodoiius, a Spaniard dike liimfelf, he en- -
deavoured to deprive. him of the empire of the
Eaft, as he had already obtained that 'of the •
Well. Theodofius was hated for his cruelties; ,
but he had found the means of gaining; to his
party the heads of the church. Maximus, was
•willing to difplay the fame zeal, and to attach the -
Spanilh bilhops to his fa6lion. He flattered both
^he old and the new religion; he was. as treach- -
erous as inhuman, as indeed were all thofe who •
at that time either pretended tOj or obtained ^

empire,-

Crimes and Punishments.- 177

empire. That vaft part of the world was then-
governed like Algiers at prefent. Emperors were-
created and dethroned by the military power,
and were often chofen from among nations that
were reputed barbarous. Tlieodofius opppfed
to his competitor other barbarians from Scythia.
He filled the army with Goths, and furprifed^
Aiaric the conqueror of Rome. In this horri-
ble confufion, each endeavoured to fiirengthen
his party by every means in his power.

Maximus having caufed the Emperor Gratian,
the colleague of Theodofius, to be alTaffinated.
at Lyons,, meditated the deftr.uciion of Valenti--
iiian the fecond, wlio^ daring his infancy, had."
been.-named fucceiTor to Gratian. He afTembled
at Treves a powerful army, compofed of Gauls
afid Germans. He_ caufed troops to be levied in
Spain, when two Spanifh biOiops, Idacio and"
Ithacus, or ltacius, both men of credit, came and
demanded of him the blood of Erifcilian, and all
his adherents, who were of opinion, that fouls .
were emanations frcvm God ; that the Trinity
did not contain three hypoftafes •, and moreover,
they carried their facrilege fo far as to faff on ,
Sundays. Maximus, half Pagan, and half
Chriffian, foon perceived the enormity of thele
crimes. The holy bifhops, Idacio and Itacius,
obtained ieaye to torture Prifcilian and his ac-.

complices

«

178 A COMMENTARY ON

complices before they were pat to death. They
Avere both prefent, that things might be done
according to order, and they returned bleffing
God, and numbering Maximiis, the defender of
the faith, among the faints. Bat Maximus be-
ing afterward defeated by Theodofius, and af-
laffinated at the feet of his conqueror, had not
the good fortune to be canonized.

It is proper to obferve, that Saint Martm,.
bifhop of Tours, who was really a.good man,,
Iblicited the pardon of Prifcilian ; but being
himfelf accufed of herefy by the biftiops, he
returned to Tours, for fear of the torture at,
Treves.

As to Prifcilian, he had'the confoiation, after-
he was hanged, of being honoured by his fecr
as a raartyr. His feaft was celebrated, and
would be celebrated fliill, if there were any
Prifcilianifts remaining.

This example made the intire church tremble;
but it was foon after imitated and furpafTed.
Prifcilianifts had beeniput to death by the fword,
the halter, and by lapidation. A young lady of
quality, fufpefled to have fafted on a Sunday^
was at Bourdeaux only ftoned' to death. Thefe
punifhraents appeared too- mild ; it was proved
that God required that heretics fhould be roafted
glive.. The., peremptory, argument, in fapport

Crimes and Punishments. 179

-of this opin'oi was, that God punifhes them in
that manner in the next world, and that every
prince, or his reprefentative, even down to a
petty conftable, is the image of God in this
fub] unary world.

On this principle it was, that all over Europe
'.they burnt witches and forcerers, who were
manifeflly under the empire of the devil ; and
alfo heterodox Chriftians, which were deemed
foil more criminal and dangerous.

It is not certainly known, what was the crime
of thofe priefts who were burnt at Orleans in
the prefence of king Robert and his wife Con-
ftantia, in the year 1022. How indeed fnould
it be known ? there being, at that time, but a
fmall number of clerks and monks that could
^vrite. All w^e certainly know is, that Robert
and his wife feafled their eyes with this abomi-
nable fpe£lacle. One of the fedaries had been
confefTor to her majefty, who thought llie cguld
not better repair the misfortune of having con-
felTed to a heretic, than by feeing him devoured
by the flames.

Cuftom becomes law; from that period to
the prefent time, a fpace of more than fevea
hundred years, the church hath continued to
burn thofe that are guilty, or fuppofed guilty,
of an error in opinion.

CHAR

rSo A COMMENTARY on

CHAP. IV.

On the Kxtirpat'ion of Herefy.

IT feems necefTary to diftinguifh an herely
of opinion from faftion. From the firft ages of
Chriftianity opinions have been different. The
Chriflians of Alexandria were, in many points,
of a different opinion from thofe of Antioch.
The Achaians differed from the Afiatics. This
diverfity of opinion exifted from the beginning,
and probably will continue for ever. Jefus Chrift,
who could have united all the faithful in the fame
fentiments, did it not; and therefore we may
conclude that it was not his defign ; but that he
chofe rather to exercife all his churches in afts
-of indulgence and charity, by permitting differ-
ent fyftems, yet all agreeing to acknowledge him
their lord and m after. Thefe feveral feels, fo long
as they were tolerated by the emperors, or con-
cealed from their fight, had it not in their power
to perfecute each other, being equally fubje^l to
the Pioman magiftrates ; they could only difpute.
If they were perfecuted, they equally claimed
the privilege of nature : " Suffer us," they faid,

to adore our God in peace, and do not refufe
I " us

Chimes and Punishments. iti

^'^ us the liberty yon grant to the Jews Every
feet may now nrge the Tame argument to
t?heir oppreffors. They may fay to thofe who
"want privileges to the Jews ; Treat m
" as you treat the fons of Jacob ; let us, like
" them, pray to God according to our con-
** fcience. Our opinion will no more injure
" your ftate, than Judaifm. You tolerate the
" enemies of Jefus Chrift, tolerate usAvho adord

him, and who differ from you only in theo-

logical fubtleties. Do not deprive yourfeives
" of ufeful fubjefts ; ufcful in your manufac-

tures, your marine, and the cultivation of your
" lands. Of what importance is it, tliat their
" creed be fomewhat different from yours? You
" want their labour, and not their catechifm."

Faftion is quite a different thing. It always
happens, that a perfecuted feci degenerates into
faftion. The oppreffed naturally unite and ani-
mate each other ; and are generally more in-
duftrious in ftrengthening their party, than their
perfecutors in their extermination. They muft
cither deftroy or be deflroyed. So it happened
after the perfecution excited in 304, by Gale-
rius, in the two laft years of Dioclelian. The
Chriftians, having been favoured by that emperor
during eighteen years, were become too num.e~
rous and too rich to be exterminated. They
joined Chlorus ; they fought for his fon Cott-
on ' flan tine.

•i82 A COMMENTARY on

il:antine, and a total revolution of the empire
was the confequence.

Small events maybe compared with great, when
they are produced by the lame fpirit. Revolutions
of a limilar kind happened in Holland, in Scot-
land and in Switzerland. When Ferdinand and
Ifabella drove the Jews out of Spain, where they
were eftabliflied not only before the reigning fa-
mily, but before the Moors, the Goths, or even the
Carthaginians j if the Jews had been as warlike as
they were rich, they might eafily, in conjumflioa
with the Arabs, have effedfed a revolution.

In fhort, no feci ever changed the govern-
ment, unlefs excited by defpair. -Mahomed him-
felf fucceeded only becaufe he was driven from'
Mecca, and a reward offered for his head.

"Would you prevent a fe£f from overturning
the ftate, imitate the prefent wife conduct of
England, of Germiany, of Holland ; ufe toleration.
The only methods, in policy, to be taken with
a new feft, are, to put to death the chief and all
his adherents, men, women, and children, with-
,out fparing one individual j or to tolerate them,
when numerous. The firft method is that of a
iDonfter the fecond of a wife man.

Chain your fubjecls to the Hate by theirinterefl.
Let the Quaker and the T ark find their advantage
m living under your laws. Religion is of God to
man J the civil law is of you to your people.

CHAP,

Crimes and Punishments. 183'

€ H A R V.

Of Profanation. .

LEWIS IX. king of France^ who for his
virtues was numbered among the lainta, made a
Jaw againft blafphemers. - He Condemned them to
a new punifliment \ their tongues were pierced
with a hot iron. It v/as a kind of retahation ;
the ilnning member fufFering the punifliment.
But it was fomewhat difflcuk to determine what
was Wafphemy. Expreffions frequently efcape
from a man in a paffion, from joy, or even in?
converfation, which are merely expletives, fuch:
its the fela and ih& vah oi the Hebrews, the pol
and the adepol of the Latins, as alfo per Deos
immortaleSf an expreffion frequently ufed, with-
out the leaft intention of. fwearing by the im--
mortal gods. .

The. words which are- called oath's and blaf^
phemy, are commonly vague terms that may be
varioufly interpreted. The. law by which they
are puniflicd, feems to be founded on that of the
Jews, which fays, fait not take the name

<f the Lord thy God in.fuain. The be ft commen-
tators are of opinion, that this commandment '

0^2.. relates.".

A COMMENTARY &h

relates to perjni yj and there is the more reafoii
to believe them rights as the word Jhave, which
is tranflated in vain, properly Ijgnifies perjury.
No\?, what analogy can there be between per-
jury and Caoo ck DioSy Cadedlsy SangbleUi Ven-
trehhu^ Corpo di Dio^ ^c. P

It: was coftomary with the Jews to fwear by
the life of Gody as the Lord liveth : the phrafe
was common , fo that it was lying in the name
of God that was forbidden.

Philip Angufms, in iiSi, condemned the
nobihty who ftioald pronounce the words which
are foftened in the terms Tetebleu, Ventrebleu,.
Corhlcu, ^anghleuy to pay a fine, and the plebeians
to be drowned. The firft part of this law feems
paerikj the latter abominable. It was an outrage
to nature, to drown one man for a crime for
which- another paid- a few pence of the money of
thofe times. So that this law, like many other,
■renlained unexeciitedj efpecially when the king
was excommunicated, and his Idngdom interdift-
ed by Pope Celeftine III.,

Saint Lewis, tranfported with zeal, ordered in-
difcriminately, that wliofoe^^er £hould pronounce
thefe indecent words, ihould have his tongue
bored, or his upper lip cut oli. A citizen of
Paris, having fuifered this puniiliment, complain-
ed to Pope. Innocent W. This, pontiff remon-

ilrated

Crimes and Punishments. r8'5

firated to the king that the punifhment was too
greiat for the crime, which however had no effe£t
upon his majeily. Happy had it been for- man-
kind, if the popes had never aiFefted any other
ftperiority over kings. .

The ordinance of Lewis XIV. fays, " Thofe

who fhail be convieled of having fworn by,
" or biafphemed the holy name- of God, of his
" moft holy mother, or of his faints, fhall> for

the firft offence, pay a fine; for the fecond,

third, and fourth, a double, triple^ and qua--
" druple fine; for the fifth, fliali be pat in the

flocks ; for the fixth, fliall fland in the pillo-
" ry, and lofe his upper lip j for the feventh^

fnali :have his tongue cut out."

This law appears to be humane and jufl:, as-
it: inflicts a cruel punifliment only on a feven-
fold repetition, which can hardly be prefumed.

But with regard to more atrocious profana-
tions, which are called Svacrilege, the criminal
ordinance mentions only robbing of churches
it takes no notice of public impieties, perhaps be-
caufe they were not fuppoled to bappenj or were'
too difficult to fpecify. They are left therefore-
to the difcretion of the . judge 5 and yet nothing
ought to be left to difcretion.

In fuch extraordinary cafes, how is the judge
to ua ? He ihoiild confider the age of the ofTen-^

Q^3 - der.

iB6 A COMMENTARY o»

der, the nature and degree of his offence, and^
particularly the neceiTity of a public example.,,
Pro qualitate perfona^ quoqtie rel condltione tsf"
temporis ^ a.taiis CJ' fexus, vel cleinentiiu Jia^-
tuendum. If the law does not exprefly fay that'
fuch a crime foali be punifhed with death, what
judge (liall think himfelf authorized to pronounce
that fentence ? If the law be ffient -, if neverthe-
lefs a pueiiliment be requ'red, the judge ought
certainly, without hefitation, to decree the leaft -
ievere, becaufe he is a man.

Sacrilegious profanations are never committed
except by young debauchees. Would you.punilli-
them as feverely as if they had murdered a bro-
ther? Their youth pleads in their favour. They
are not fufFered to difpofe of their pofTeffions,
becaufe they are fuppofed to want maturity ot
judgment, fafficient to forefee the eonfequences
of an imprudent tranfadlion.. Is it not. therefore
natural to fuppofe, that they are incapable of
ferefeeing the eonfequences of their impiety ?

Would you treat a wild young man, who, in
Ids phrenzy, had profaned a facred image, with-
oiit ftealing- it, with the fame rigour that you
- puni&ed a Brinvilliers, who poifoned his father
and his whole family ?

There IS; no law againft the unhappy yt)Uth,
and you are determined to make one that flrall

condemn

Grimes and Punishments.^ i87'

condemn him to the feverefl pimifliment ! He
deferved chaftifement ; but did he deferve fuch
excrueiating. torture, and the moft horrible
death ?

But he had offended God ! True, moft grie-
voufly. Imitate God in your proceedings againft
him. If be be penitent, God forgives him. Im-
pofe a penance, and let him be pardoned.

Your illuftrious Mo7tfefquieu hath faid : It is
our duty to honour the Deity, and not to re*-
venge him. Let us weigh thefe words. .They da
not mean, that we 0iould negleft the rriainte-
nance of public decorum ; but, as the judicious
author of the. preceding Effay obferves, that it
is abfurd for an infedl to pretend to revenge the
fupreme Being. A village magiftrate, or the
magiftrate of a cit}^, is neither: a Mofes nor a
J.ofliua, ,

CHAP,

188- A COMMENTARY on

C H A P. VL '

O^f the Indulgence of- the Romans in Matters of

Religion,.

THE amaziiig contraft between the Roman ■
lawSj and the barbarous inftitutions by whichi
they were fucceeded, hath often been the fubjeft
of converfation among thfe fpeculative part of
mankmd.

Doiibtlefs the Roman* fenate held the fupreme
God in as great veneration as we; and profeiTed
as much efleem for their fecondary deities as we
for our faints. Ab Jove principium was their
common formule. Pliny, in his panegyric on
the good Trajan, attefis, that the Romans never'
omitted to begin their difcourfe- and affairs by
invoking the Deity. Gicero and Livy tell us the
fame thing. No people were more religious 5 :
but they were too wife, and too great, .to de-
scend to the punifhment of idle language or
phiiofophic opinions : they were -incapable of"
inflicfing barbarous punifhinsnts on thofe who,
■with Cicero, himfelf an augur, had no faith in ■
auguries ; or on thole who, like C^far, affert-
ed in full fenate, that the gods do not punifli
mtik after death. =-

Crimes and Punishments. 189

It hath often been remarked, that the fenate
permitted the chorus in the Troad to fing, There
is 7iothing after death ^ and death itfelf is nothifig.
You ojk^ what becomes of the dead P "They are
uuhere they ivere ere they were bor?i *.

Was ever profanation more flagrant than this?
From Ennius to Aufonius ali is profanation, not-
withflandiiig the refpeft for divine worfliip. Why
were thefe things difregarded by the fenate ? Be-
caufe they did not, in any wife, afFe(5l the govern-
ment of the ftate j becaufe they difturbed no in-
lliitution, nor rehgious ceremony. The police of
the Romans was nevertheleis excellent j they
were neverthelefs abfolure mafters of the beft
part of the worid,- till, the reign of Theodofms
the fecond.

It was a maxim of the Romans, Deorum
offeUjfa^ Diis cur^y OiFences againft the gods-
concern the gods only. The fenate, by the
wifefl inftitntion, being at the head of religion,
were under no apprehenfions that a convocation
of priefts fhouid force them to revenge the
priefthood under a pretext of revenging heaven.
They never laid, let us tear the impious afunder,
left we ourfelves be deemed impious , let us

* Poft mortem nihil mors Iffaqus mhlJ^ &c, Ss n h c A;

igo A COMMENTARY on

/iiew the prieflhood, by our cruelty, that we ar&
"no lefs religious than they.

But our religion is more holy than that of
the Romans, and confequentiy impiety is a great-
er crime. Granted., God will punifli it. ' The
part of man is, to punifh that which is criminal
in the public diforder which the impiety hath
C>ccarioned. Bat if in the a6t of impiety the de-
linquent hath not even ijolen a handkerchief ; if
the ceremonies of religion have been in no wife
difturbed, fhail we, as I laid before, poniili the
impiety aa we would puniHi parricide.? The Mar-
flial d' Ancre had caufed a white cock to be killed
when the moon was at full: ouglit we there--
fare-to burn the Mar ill all d'Ancre;K

E/I modus in rebus, funt certi 'deniqiie fines /
McQ fcutim dignum horrihiU JeElere Jtagelh,, ,

G H AT.

Crimes and Punishments. 191

CHAP, VIL

Qn the 'Crime of Preaching; and of Anthony,

A CALVINIST teacher, who, in certain
provinces, preaches to his flock, if he be dete6l-
ed, is pneiihed with death; and thofe who have
given him a fupper, or a bed, are fent to the
gaUies for Hfe.

In other countries, if ajefuitbe caught preach-
ing, he is hanged. Is it to avenge God that this
Calviniil: and this Jefuit are put to death ? Have
toth parties built upon the following Evangelical
law? If he 7^egleci to hear the churchy let him he
unto thee as an heathen man and a publican. But
- the Evangelifl does not order that this heathen
and this publican fliouid be hanged.

'Or have they built on this pafTage in Deute-
ronomy *j If among you a prophet arife; and
that which he hath faid come to pcifs ; and he fay-
eth unto you, let us folloiv f range gods ; and if
thy brother, or thy fon, or thy luife, or the friend
of thy heart, fay unto thee. Come, let us folloiv
Jlrange gods : let them he flraighiivays killed,
Jlrike thou firf, and all the people after thee.

* Chap, xiil.

1^2 A COMMENTARY dN

But neither this Jefult nor the Calvinift faid ufi-
to you. Come, let us follow flrange gods*

The counfellor Dubourg, the monk Jehatl
Chouvin, named Calvin, the Spaniih phyfician
Servetus, the Calabrian Gentllis, all worihipped
the fame God : and yet the prefident Minard
caufed counfellor Dubourg to be burnt; and
Dubourg's friends caufed prefident Minard to be
affalfmated ; Jehan Calvin caufed the phyfician
Servetus to be roafted ; and had likewife the
confolation to be a principal means of bringing
the Calabrian Gentilis to the block j and the
fucceffors of Jehan Calvin burnt Anthony. Was
it reaibn, or piety, or juftice, that committed
thefe murders ?

This hiftory of Anthony is one of the mojfl:
fmgular -which the annals of phrenzy hath pre-
ferved. I read the following account in a very
curious manufcript j it is in part related by Ja-
•cob Spon.

Anthony was born at Brieu in Lorrain, of
catholic parents, and he was educated by the
Jefuits at Pont a Mouffon. The preacher Feri
engaged him in the proteftant religion at Metz.
Having returned to Nancy he was profecuted as
a heretic, and, bad he not been faved by a friend,
would certainly have been hanged. He fled for

refuge

CiRiMEs and Punishments. 193

refuge to Sedan, where, being taken for a pa-
pift, he narrowly efcaped aflaffination.

Seeing by what ftrange fatality his life was not
in fafety, eitlier among papifcs or proteftants, he
W^ent to Venice and turned Jew. He was pofi-
tively perfuaded, even to the laft moments of his
life, that the religion of the Jews was the only
true religion ; for that, if it was once trne, it
nvail always be fo. The Jews did not circnm-
cife him, for fear of offending the flate bat he
was no lefs internally a Jew. He now went to
Geneva, where, concealing his faith, he became
a preacher, was prefident to the college, and
fmally what is called a minifrer*

The perpetual combat in his breafl between
the religion of Calvin, which he was obliged to
preach, and that of Mofes, which was the only
rehgion he believed, produced a long illnefs. He
became melancholy, and at laft quite mad, cry-
ing aloud, that he was a Jew. The minifters of
the gofpel came to vifit him, and endeavoured
to bring him to himfelfj but he anfwered, " that

he adored none but the God of Ifrael ; that
" it was impoffible for God to change; that
" Qod could never have given a law, and in-

fcribed It with his own hand, with an inten-

tion that it Ihould be abolifhed." He fpoke
againft Chriftianity, and afterwards retra-fled all

K. ^ he

194 A COMMENTARY on

he had faid, and even wrote his confeffion of
faith, to efcape puniftiment ; but the unhappy
perfuafion of his heart would not permit him to
Hgn it. The council of the city alFembled the
clergy, to confult what was to be done with the
unfortunate Anthony. The minority of thefe
clergy were of opinion, that they fliould have
compaffion on him, and rather endeavour to
cure his difeafe than punifli him. The majority
determined that he fliould be burnt, and he was
burnt. This tranfa£lion is of the year 1632*.
A hundred years of reafon and virtue are fcarce
fufficient to expiate fuch a deed.,

* Spon, p. 500. Guy Vances.

CHAP.

Crimes and Punishments.

C H A P. VIII.

The Hlftory of Simon Morlu.

THE tragical end of Simon Morin is not
lefs horrible than that of poor Anthony. It was
midft the feafting, pleafures, and gallantry of a
brilliant court 5 it was even in the times of the
greateft licentioufnefs, that this unfortunate mad-
man was burnt at Paris, in the yeai- 1 663 . Ima-
gining that he had feen viiions, he carried his
folly fo far as to believe that he was fent from
God, and that he was incorporated %vith Jefus
Chrift.

The Parliament very wifely condemned him
to be confined in a mad-houfe. What was very
remarkable, there happened to be confined in
the fame mad-houfe another fool, who called
himfelf God the Father. Simon Morin was fo
flruck with the folly of his companion, that he
acknowledged his own, and appeared for a time
to have recovered his fenfes. lie declared his
repentance, and, unfortunately for himfelf, ob-
tained his liberty.

Sometime after, he relapfed into his former
nonfenfe, and began to dogmatize. His unhappy

3 defliuj

196 A CO-MMENTAKY on

deAiny brought him acquainted with St; Sorlin
Defraarets, who for feme months was his friend,
but who af tei'u^ards, from jealoflfy, became his
moil cruel perfecutor.

This Defmarets was no lefs a viiTonary thaS
Morin. His lirii: foliies indeed, were innocent.
He printed the Tragi-Coraedies of Erigone and
Mirame^ with a tranflation of the Pfalms ; the
Romance of Ariane, and the Poem of Clovis,
with the office of the holy Virgin turned into
verfe. He likewife publiflied dithyrambic poems,
enriched with inveftives againft Homer and
Virgil. From this kind of follies he proceeded
to others of a more ferious nature. He attacked
Port-Royali and after confeffing that he had
perverted fome women to atheifm, he commenced
prophet. He pretended that God had given him,
with Ms own handj the key to the treafure of
the Apocaiypfe, that with this key he would
reform the whole world, and that he fhould
command an army of an hundred and forty
thoufand men againft the Janfenifls.

Nothing could have been more reafonablc
and more juft, than to have confined him in the
iame place with Simon Morin ; but can it be
believed, that he found credit with the Jefuit
Annat, the king's confefTor? whom he perfna-
dedj that this poor Simon Morin would eftablift.

% feft

Crimes and Punishments. 197

a feci almofi: as dangerous as the Janfenifts them-
felves. In fhort, carrying his infamy fo far as to
turn informer, he obtained an order to feizc
the perfon of his rival. Shall I tell it ! Simon
Morin was condemned to be' burnt alive ?

In conducing him to the ftake, there was
found, in one of his ftockings, a paper in which
he begged forgivenefs of God for all his errors.
This ought to have faved him j but no : the
fentence was confirmed, and lie was executed
without mercy.

Such deeds are enough to make a man's hair
briftle with horror. Yet where is the country
that hath not beheld fuch iliocking fpeclacles ?
Mankind univerfiilly forget that they are bro^
thers, and perfecute each other even to death.
Let us confole ourfelves with the hope, that
fuch dreadful times are pafied, never more to.
return.

C A* P >

tQd A COMMENTARY o&

CHAP. IX.

Of Witches,

IN the year 1748, in the blfliopric of
Wurtfburg, an old woman was convicted of
witchcraft and burnt. This was an extraordinary
phenomenon in the prefent century. But ho\v
incredible it feems, that a people, who boafted
of their reformation, and of having trampled
fuperftition under their feet, and wdio flattered
themfelves that they had brought their reafon to
perfection ; is it not wonderful, I fay, that fuch
a peoplie Ibould have believed in witchcraft j
fhould have burnt old women accufed of this
crime, and that above a hundred years after the
pretended reformation of their reaibn ?

In the year 1652,, a country-woman, named
Michelle Chaudron, of the little territory of
Geneva, met the Devil in her way from the city.
The Devil gave her a kifs, received her homage,
and imprinted on her upper lip and on her right
breaft, the mark which he is wont to beftow
upon his favourites. This feai of the Devil is a
little fign upon the Ikin, which renders it infen-

fibk.

Crimes and Punishmentts. ig'^'

£ble, as we are afTiiTed by all the demonogra-
phical civilians of thofe times*
' The Devil ordered Miclielle Chaadron to be-
witch two young girls» She obeyed her mailer
punftually. The parents of the two girls acctrfed
lier of dealing with the Devil. The girls, being
confronted with the criminal^ declared, that they
felt a continaai prickling in forae parts of their
bodies, and that they were poffeffed Phyficians
were ciilled, at leaft men that pafTed for phyfi-
cians in thofe days. They vifited the girls. They
fought for the feal of the Devil on the body of
Michelle, which feal is called, in the verbal
procefs, the Satanica/' mark, Into one of thefe
marks they plunged a long needle, which was
already no fmall torture. Blood iiliied from the
wound, and Michelle teftified by her cries that
the part was not infenfible. The judges not
finding fufiicient proof that Michelle Chaudronr
was a witch, ordered her to be tortm^ed, which
infallibly produced the proof they wanted.
The poor wretch, overcome by torment, con-
fcffed at laft every thing they defired.

The phyficians fought again for the Satanlcal
mark, and found it in a little black fpot on one
of her thighs. Into this they plunged their
needle. The poor creature, exhaulled and
almoft expiring with the pain of the torture,

was.

200 A COMMENTARY oh

was infenfible to the needle, and did not cry ouL
She was uiftantly condemned to be burnt ; but
the world beginning at this time to be a little
more civilized, llie was previoully ftranglcd.

At this period every tribunal in Europe re-
founded with fuch judgments, and fire and faggot
were univerfally employed againil: witchcraft as
well as herefy. The Turks were reproached,
with having amongft them neither forcerers,
witches, nor demoniacs ; and the want of the. ..
latter was confidered as an infallible proof of
the falfity of their religion.

A zealous friend to the public welfare, to
humanity, and to true religion, in one of his
writings in favour of innocence, informs us, that
there have been above a hundred thoufand
witches condemned to die by Chriftian tribu-
nals. If, to thefe lawful maffacres, we add the
much fuperior number of heretics facrificedj
our part of the globe will appear one vafi: fcaf-
fold covered with executioners and vi6lims, and
furrounded by judgesj, guards, and fpeftators*.

CHAP,

Crimes

and

Punishments.

201

CHAP. X.

On the PuniJJoment of Death.

IT hath long fmce been obferved, that a man
after he is hanged is good for nothing, and that
punifhments invented for the good of focletyj
ought to be ufefui to fociety. It is evident,
that a fcore of ftout robbers, condemned for
Hfe to fome public work, would ferve the (late
in their puniihment, and that hanging them is a
benefit to nobody but the executioner. Thieves,
in England, are feldom punifhed with deathj
but are tranfported to the colonies. This is alfo
praclifed in Ruffia, where not one criminal was
executed during the whole reign of the auto-
cratical Elifabeth. Catherine 11. who hath fuc^
ceeded her, with much more genius, follows
her example 5 yet crimes are not multiplied by
this humanity ; and it generally happens that the
criminals fent to Siberia in time become honeft
people. The fame is obferved in the Englilh co-
lonies. We are aftonifhed at the change, and
yet nothing can be more natural. The con-
demned are forced to continual labour for a;
livehhood. The opportimiti^s of vice are want-

202

A COMMENTAR'Y on

ing. They marry and multiply. Oblige men
to work, and you certainly make them honeft.
It is well known, that atrocious crimes are not
committed in the country, unlefs when there is
too much holiday, and confequently too much
idletieft, and confequently too much de-
bauchery.

The Romans neter condemned a citizen to
death, unlefs for crimes which concerned the
fafety of the jftate. Thefe our mafters, our firft
legillators, were careful of the blood of their
fellow-citizens ; but we are extravagant with
the bloOd of ours.

The queflion hath been frequently debated,
whether a judge ought to have the power to
punifh with death, when the punifliment is un-
determined by the law ? This queflion was fo-
lemnly agitated in the prefence of the Emperor
Henry VIL who decreed that no judge fhould
iiave fucli a power *.

There are fome criminal cafes which are ei-
ther fo new, fo complicated, and fo unaccount-
able as to have efcaped the provifion of the laws,
and which, therefore, in fome countries are left
to the difcretion of the judge. But for one cafe
in which the laws permit the death of a crirailml

'* BoaSt'jn de Rfpublica, lib. iii. c. 5.

whom

Crimes and Punishments. 203

"whom they have not condemned, there are a
thoiifand wherein humanity ihould fave whom
the laws have condemned to fuffer.

The fword of juftice is in our hands, but we
ought rather to blunt than to fharpen its edge.
It remains within its fheath in the prefence of
kings, to inform us that it ought feldom to be
drawn.

There have been fome judges who were paf-
fionately fond of fpiliing human blood ; fuch
w^as Jefreries in England, and fuch in France was
the man whom they called Coupe-tete. Nature
never intended fuch men for magiftrates, but for .
executioners.

C A. P«

204

A COMMENTARY on

C H A P. XL

Cf2 Death Warrants.

MUST we go to the end of the world-,
muft we have recourfe to the laws of China, to
learn how frugal we ought to be of human blood ?
It is now more than four thoufand years that the
tribunals of that empire have exifted \ and it is
alfo more than four thoufand years that the
meanefl fubjefl, at the extremity of the empire,
hath not been executed without firft tranfmit-
ting his cafe to the emperor, who caufes it to
be thrice examined by one of his tribunals ; after
which he figns the death warrant, alters the fen-
tence, or entirely acquits.

But it is unnecellary to travel fo far for ex-
amples of this nature-, Europe will abundantly
fupply us. In England, no criminal is put to
death, whofe death warrant is not figned by the
king. It is alfo praftifed in Germany, and in
moft parts of the north. Such likewife was for-
merly the cuftom in France, and fuch it ought
to be in all polifhed nations. A fentence, at a
diftance from the throne, may be dictated by
cabal, prejudice, or ignorance. Such little in-
trigues

Grimes and Punishments.

trigues are unknown to monarchs, who are con-
tinually furrounded by great objefts. The mem-
bers of the fupreme council are more enlight-
ened, lefs liable to prejudice, and better quali-
fied than a provincial judge, to determine whe-
ther the flate require fevere punifhments. In
iliort, when inferior courts have judged accord-
ing to the letter of the law, which poffibly m^y
b.e rigorous, the council mitigates the fentencc
according to the true fpirit of all laws, which
teaches, never to facrifice a ttianj but in evident
Beceffity,

S

CHAP,

206

A COMMENTARY on

C H A P. XII.
On Torture.

ALL mankind being expofed to the attempts
of violence or perfidy, deteft the crimes of which
they may pollibly be the vidlims : all de fire that
the principal offender and his accomplices may be
puniflied^ neverthelefs, there is a natural com-
paffion in the human heart, which makes all men
detefl the cruelty of torturing the accufed in or-
der to extort confeilion. The law has not con-
demned them, and yet, though uncertain of their
crime, you inflift a punifhment more horrible
than that which they are to fuffer when their guilt
is confirmed. " Poflibly thou mayfl be innocent;

but I will torture thee that I may be fatisfied:
" not that I intend to make thee any recompence
" for tliethoufand deaths which I have made thee

fufFer, in lieu of that which is preparing for
" thee." Who does not faudder at the idea ?
St. Auguflin oppofed fuch cruelty. The Romans
tortured their flaves only; and Quintilian, recol-
le6ling that they were men, reproved the Ro-
mans for fuch want of humanity.

If there were but one nation in the world
J^'hich had abolidied the uie of torture ; if in

that

Crimes and Punishments. 207"

that nation crimes were no more frequent than
in others ; and if that nation be more enlighten-
ed and more fionriiliing fnice the abolition, its
example furely were fufficient for the reft of the
world! England alone might inftruft all other
nations in this particular 5 ■ biit England is not
the onl}'- nation. Torture hath been abolifhed in
other countries, and with fuccefs ; the queftion
therefore is decided. Shall not a people, who
pique themfelves on their politenefs, pride them-
felx^es alfo on their humanity ? Shall they obftl-
nately perfifl in their inhumanity, merely becaufe
it Is an ancient cuftom ? Referve, at leaft^ fuch
cruelty for the puniflimenc of thofe hardened
wretches, who {hall have affaffinated the father '
of a family, or the fiither of his country j but
that a young perfon, who comir.its a fault which
leaves no traces behind it, fliould fuffer equally
with a parricide ; is not this an ufelefs piece of
Barbarity ? '

I am afhamed of having laid any tiling on this
fabjeft, after what hath been already faid by tht?
author of the Effay on Crimes and Punifhments.
I ought to have been fatisfied with wilhing, that'
mankind may read with attention the work of
th*at friend to humanity.

CHAB;-

20S A C0-H;ME:NTARY ou

e H A p. XIII.

Of certain fafiguinary Tribunals .

IS it credible, that there formerl}? exiHed
fupreme tribunal more horrible than the Inquifi-
tion, and that this tribunal was efiabiiflied by
Charlemagne? It was the judgment of Weflpha-
iia, otherwife called the Vhemic Court. The fe-
verity^ or rather cruelty, of this court, went fo
far as to pu-ni/h with death, every Saxon who
broke his fafl: during Lent. The fame law was
alfo eflabliflied in Franche-Comte^ in the' begin-
ning of theTeventeenth century. In the archives
of a little place called St. Claude, fituated In a
remote corner of the moll: mountainous part of
rlie county of Burgundy, are preferved the par-
ticulars of the fentence and verbal procefs of
execution of a poor gentleman namiCd Claude
Guillon, who was beheaded on the 28th of July
1629. Being reduced to the ut-moft poverty,
and urged by the moil: intolerable hunger, he
cat, oa.a fi£h day, a morfel of horfe flefli, which
had been killed in a neighbouring field. This
was his crime. He was found guilty of facri-
lege* Had he been a rich man, and had fpent

twa

Crimes ancrPuNisHMENTS. 269"?

two hundred crowns in a fupper of fea-fiflh., fof- •
faring the poor to die of hmiger, he would have -
been coniidered as a perfon falfilling every duty. ■
The following is a- copy of his fentence. Ha- -
" ving feen all the papers of the procefs, and •
** heard the opinions of the docfors learned in
" the law, we declare the faid Claude Guiilon
** to be truly attainted and convicted of 'having
** taken away part of the flefh of a horfe, kil-
led in the meadow of that town j of having
caufed the- faid flefli to be drelTed, and of
eating the fame on Saturday the 31 ft of •
March/' e^f^..

What infamous doftors muft thefe have beeOj
who gave their opinions on this occafion ? Was
> if among the Topinambous, or among the Hot--
tentots, that thefe things happened? The Vhe-
mic court was ■ yet- more horrible. Delegates
from this court were fecretly fpread over all
Germany, taking Informations unknown to the
accufed, who were condemned without being
heard ; and frequently, in want of an execu-
tipner, the youngeft judge performed the office
himfelf.*. It v/as requifite, in order to be fafe
from the airaffinatioe. of this courf^ to procure

* See the €xcel!ent abridgement of the chronological hi-
flo^y And kws of Germany, an. 803..

S- 3 % letters -

210' A COMMENTARY on

letters of exemption from the^ emperor ; and-
even thefe were ibmetimes ineffe<5lual. This
chamber oi afTairins was not entirely aboliflied.
till the reign of Maximilian I. . It ought to have
been diffolved in the blood of its members.
The Tenetian Couneil of Ten vvas^ in compa-
rifon with this, a' court of mercy, .

What fhall we think of fiich horrid proceed-
ings ? Is it fufHcIent to bewail humanity ? There,
were fome cafe>s that cried alpiid for vengeance.

C H AT.

Crimes and' Punishments. 211

C H A P. xiv:

Ofv the Difference beinveen political and natural

Laws.

I CALL natural lawSj thofe which nature-
diclates in all ages co all men, for the mainte-
nance of that julliice which Ihe (fay what they
will of her) hath implanted in our hearts.
Theft, violence, homicide, ingratitude, to bene-
feent parents, perjury againfl innocence, con-
fpiracies againft* one's country, are cranes that
are univerfally and juftly punifhed, , though with
more or lefs feverity.

I call political laws, thofe that are made in
compliance with prefent necellity, whether it be
to give ftabiiity to the government, or to pre-
vent misfortune. For example ; being appre-
henfive that the enemy may receive intelligence
from the inhabitants of the city, you fhut the
gates, and forbid any one to pafs the ramparts
on pain of death.

Or, fearful of a new fe61: of people, who
publicly difclaim all obedience to their fovereign^
and fecretly confult of means to divefl themfelves
of that obedience J who preach, that all men are

212 A COMMENTART' oM

equal, and that obedience is due to God alone'|.
who, accufing the reigning feft of fuperftition,
mean to deftroy that which is confecrated by the
jftate; you denounce death againfl thofe who, in
piiblicly dogmatizing in favour of this fe^t, may
infligatd^the people- to revolt.

Gr, two ^ ambitious princes contend for a
crown : the flrongeft gains the. prize, and pu-
iiifhes with death, the partizans of the weaker.
The judges become the inftruments-of vengeance
of the new. lb vereign, and thfe-fupports of his
authority. . ,

When Richard the thirds the murderer of his
two nephews, was acknowledged king of Eng-
land, the jury found Sir William Coliinburn
guilty of having written to a, friend of the Duke,
of Richmond, who was at that time' railing an
army, and who afterwards reigned by the name,
of Henry VII. They found two ridiculous lines
of Sir William's writing, which were fulEcient :
to condemn hira to a. horrible death; . Hiftory
abounds with luch examples of juftice. .

The right of reprilal is. alio a law adopted by
nations. For example, your enemy has hanged,
one of your brave captains, for having defended
an old ruined cafcle againff a whole army.. Gne
of Ms captains falls- into your hands j he is a;,
worthy ,manj and you efteem him j neverthelefs*

yon "

Crimes and Punishments. 213

you hang him by way of reprilal. You fay it is
the law: that is to fay, becaufe your enemy has
been guilty of an enormous crime, you mud be
guilty of another.

Thefe political fanguinary laws exifl but for a
time ; they are temporaryj becaufe they are not
founded ia truth. They refemble the neceffity
which, in cafes of extreme famine, obliges peo-
ple to eat each other ; they ceafe to eut men as
foon as bread is to be had.

CHAP.

2.14 A COMMENTARY on

C H A P. X¥.

©n the Crime of 'High-Treafdn. On- Titus Oates^y
and tin the Death of Augujiin de Thou,.

HIGH-TREASON is an offence commit-
ted againft the fecurity of the commonwealth,
or of the king its reprefentative. It is confider-
ed as parricide, and therefore ought not to be
extended to offences which bear no analosv to
that crime. In making it high-treafon to commit
a tlieft in any houfe belonging to the flate, or
even-, to fpeak feditious words, you leffen the.
horror which the crime of high-treafon ought
to infpire«

Tn our ideas of great crimes, there fliould be-
nothing arbitrary. If a theft from, or impreca-
ti©n againfl, a father be confidered as parricide, .
you break the bond of filial piety ; theTon will
then regard his- parent as a terrible monger.
Every exaggeration in a law tends to its de-
ftriiftion. .

In common crimes, the laws of England are
favourable, to the accufed ; but in cafes of high-
treafon they are againft him.. The Jefuit Titus ^
Qates being legally interrogated in the Houfe of

Commons. ,

Crimes and Punishments. 215

Commons, and having upon his oath declared,
that he had related the nuhole truth, yet after-
wards accufed the fecretary of the Duke of
York, and feveral others, of high-treafon, and
his information was admitted. He likewife fwore
before the king's council, that he had not feen
the fecretary, and afterwards that he had. Not-
withftanding thefe illegalities and contradi(5lions,
the fecretary was executed.

The fame Titus Oates and another witnels
depofed, that fifty Jefuits had confpired to affaf-
linate Charles 11. and that they had feen com-
miffions, figned by father Oliva, general of the
Jefuits, for the oificers that were to command
an army of rebels. This evidence was fufficienr
to authorife the tearing out the hearts of feveral
people, and dafhing them in their faces. But fe-
rioufly, can two witneffes be thought fufficient
to convi6t a man whom they have a mind to de-
jftroy t At leaft one would imagine they ought
not to be notorious villains neither ought that
which they depofe to be improbable.

Let us fuppofe that two of the mofl: upright
raagiftrates in the kingdom were to accufe a man
of having confpired with the Mufti, to circumcifq
the whole Council of State, the Parliament, the
Archbifhop and the Sorbonne; in vain thefe two
jnagiflrates might fwear, that they had feen the

letters

21^ A COMMENTARY on

letters of the Mufti : it would naturally be fup-
pofed that they ■were wrong in their heads. It
was equally ridiculous to imagine, that the ge-
neral of the Jefuits fhould raife an army in
^England, vas that the Mufti intended to circum-
cife the court of France. But unhappily Titus
•Oates was believed; that there might remain
no fpecies of atrocious folly, which jjath. not
entered into the heart of man.

The laws of England do not confider as guilty
of confpiracy thofe who are privy to it, and do
not inform. They fnppofe the informer as infa--
•mous as the confpirator is culpable. In France,
if any one be privy to a confpiracy, and does
■not reveal it, he is punifhed with death. Lewis
XI. againft whom confpiracies were frequent,
made this law a law which a Lewis XIL or a
Henry IV. could never have imagined. It not
only obliges an honeft man to divulge a crime,
which, by his refolution and advice, he might
f o/Tibly prevent ; but it renders him liable to be
punifhed as a calumniator, it being eafy for the
accufed to manage their affairs in fuch a manner
as to elude conviftion.

This was exactly the cafe of the truly refpeft-
able Auguftin de Thou, counfellor of flate, and
fon of the only good hifl orian of which France
can boallj equal to Gmcciardini in point of
; abilities^

^Crimes an^i Punishments. 217

Willtles, and perhaps fuperior in point of im-
partiality.

This confpiracy was againil: Cardinal de
Richelieu, rather than againft Lewis XIII. The
defign was not to betray France to an enemy j
for the king's b^rother, who was the principal
^author ©f ^the plot, could never intend to betray
a kingdom to which he was the prefumptive heir,
■there being only between him and the crown a
dying brother, and two children in the cradle.

De Thou was neither guilty in the fight of
God nor man. One of the agents of the king's
'brother, of the Buke of Bomlloii, ^^ereign
prince of Sedan, and of the grand Equerry
d'Effiat St. Mars, had communicated their in-
tention to de Thou, who immediately went to
■St. Mars, and endeavoured to dilTuade him from
the enterprife. If he had informed againlf him,
he had no proof, and muft inevitably have fal-
len a ficrifice to the refentment of the prefump-
tive heir of a fovereign prince, of the king's
favourite, and to public execration. In fliort,
he would have beeji pmiifhed as a malignant ca-
lumniator.

The chancellor Seguier was convinced of this
*m confronting de Thou with the grand Equerry,
when de Thou afked the latter the following
queftion : " Do you not remember, Sir, that

T . ■« there

A COMMENTARY on

there never pafTed a day, in which I did not
endeavour to diXTuade you from the attempt?"
■St. Mars acknowledged it to be true. So that de
Thou deferved a recompence, rather than death,
from a tribunal of Equity. He certainly deferved
to 'have been faved by cardinal Richelieu ; but
humanity was not his virtue. There is in this
cafe fomething more than fummum jus fumma
injuria. In the fentence of this worthy man we
read, ** for having had knowledge and participa-
" tion of the faid confpiracy." It does not fay
for not having revealed. So that his crime was,
his having been informed of a crime j and he
was puniftied for having had ears and eyes.

All that we can fay in extenuation of this fe-
verity is, that it was not the aft of juftice her-
felf, but of a delegated power. The letter of the
law was pofitive but I appeal not only to the
lawyers, but to all mankind, whether the fpiriir
of the law was not perverted ? It is a melan-
choly abfurdity, that a fmall number of people
fhouid condemn as criminal, a man judged in-
nocent by a whole nation^ and worth their
eftecm !

CHAP.

CrimCs

and Punishments.

219,

CHAP. XVI.

On religious ConfeJJion.

JAURIGNY and Balthazar Gerafd, who
aflaffinated William L prince of Orange , Cle--
ment the Dominican, Chatel, Ravaillac, and all
the other parricides of thofe times, went to con--
feffion before they committed their crimes. Fa^
naticifm, in that deplorable age, was carried to
fach excefs, that confe/Tion was an' additionar
engagement to the perpetration of villainy; aii'
engagement deemed facred, becaule confefTioii'
is a facrament.

Strada himfelf fiiys, that Jaurigny non ante
factniis aggrcdi fiijiinuit quam expiatam necis
animam apud Domi?ncanum facerdotem ccelejli
pane jirmaverit.

It appears in the interrogatory of Piavalllac that
commg from- the Fcuillants, and going towards
the Jeiliits college, he addrelTed himfelf to the
Je&it d'Aubigny j that after talking to him of
feveral apparitions which he bad feen, he lliewed
him a knire, on the blade of which was engraved
a heart and a crofs ; and that he faid, this heart
fignijiesi ih^it the heart of the king Jhoiild he in-

T- 2-, duced

2 20 A COMMENTARY om

diiced to male luar agninjl the Huguenots, If
this d'Aubigny had informed the king of thefe
•svords, and deferibed the man, tfe beft of kings-
might poffibly have efcaped aiTaflination-

On the 2&th of Aiiguft, i6io, three months
after the death of Henry lY. Vv'hofe wounds were
ret'. bleeding in the hearts of his fubjects, the
advocate-geaeral Servin, of illtiftrioos memory,
l equired that the Jefuits fliooid be obilged to iiga
the four following articles.

I. That the Council is fuperior to the Pope.

II. That the Fope cannot depriye the King of
any of bis rights by excommunication,

III. That the ecclefiarrics are, like other peoj-
ple^ entirely fobject to the king.

IV. That a prieft who, by confeffioDj is ap»
|>rrzed of a confpiracy againff the king or the
itiite, fhould reveal it to the masillrates.

■ On the 22d, the papliamgnt publiflied ati
urret^ forbidding the Jefuits to inflru^SI: youth,
rmtil- they had ftgned thole four aiticles. But
^he court of Pvome was at that time fo powerfnii
and that of France fo weakj. that the arrst waS'
difregardeds

It is worth notice, that this court of Rome,
which would not fuffer confeffion to be revealed"
when the life^of a fovereipn was concerned, ob-
liged the- confeflbrs: to inform, the Inquifidon in

cafe.

Cri me s ■ and P u n i s h m eIs t s. " - 2 2'^^

cafe any female fhould accufe another prieil: of
having feduced or attempted to feduce her, Paul
IV. Pius ly. Clement VIII. and Gregory XV.
ordered this revelation. It was a dangerous fnare
both for the confelfor and the penitent. It was
converting a facrament into a regifter of aecnfa-
tions and facrilege j for by th6 ancient canons,
and particularly by the Lateran council, under
Innocent III. every confeiTor who reveals con-
feffion, of whatfoever nature it may be, fnaj-1 be
inter dialed and imprifoned' for life. ■

Thus we fee four different popes, in the fix-
teenth and feventeenth'centuriesr orderinp- the
revelation of a fm of impurity, and forbidding it
in cafes of j parricide. A- woman confeiTes, ou
filppofes in her confeflion to a Carmelite, that
Cordelier attempted to feduce her; the Carmelite
mull impeach the Cordelier. A fanatical aflafiin,
believing that he fliall ferve -God by killing his
prince, confuits his confeflbr on this cafe of con-
fcience ; the confeflbr is gmky of ilvcrilege, if he
fave the life of his fovereign. -

Tbis horrible abfurdity is one of the unhappy '
confequences of the continual oppofition, which
hath fubfifted for fo^ many ages, between the ec-
clefiailicai and civil daw. - Mankind have in a
thoufand inftances been fufpended between the
crimes of flicrilege and high-treafon, and the di-

T-3_. ftin€lionS'

222 A- COMMENTA.RY ow

ilinftions of right and wrong have been buried iff-
a chaoSj from which they are. not yet emerged.

Confellion of fins hath been anthorized in ali-^
times and in. all nations. The ancients accufed '
themfelves in:- the m5^i}erie3' of Grphens, of Ifis,
of Ceres, of Samothrace. The Jews confelTed
t^ieir fms on the day of folemn expiation^ and
. continue the fame praflice. Each penitent-'
chufes his confelTor, who becomes - his penitent;,
m turn, and each receives from his companioa
thirty-nine lafiies w^hilft .heis repeating, three
times, the formule of confeffion, which -confifts
only in thirteen words, and which- con-fequently
muil: be general.

None of thefe confeffions were particular, and

confequently could never ferve for a pretence^to
ihofe fecret copfultations, under the ftiadow of

which fanatical penitents think to fin with impu--
iiltyj/ a perii4cious praftice, by which a falutary
jnftitution is corrupted. ConfeffioUj which was
intended as a curb to iniquity, hath frequently,
in times of confufion and fedu61?ion,, become an
incentive to wicked nefs. Probably it was for
this reafon, that fo many Ghriftian toes- have
abolifhed a holy inflitution, which appeared to
be as dangerous as.ufefuL

GiJAP.

Crimes and Punishments, 221;

w -

^ e H A p. xvir.

Of falfe Money, .

THE crime of coining falfe money is deem-
ed high-treafon in the fecond degree, and juftly.
To rob all the people is to be a traitor to the
flate. But it is afked, whether a. merchant who
imports ingots of gold from America, and pri-
vately converts -tiiem into good money, be guil-
ty of high-treafon, and merit death ? which is
the punilhment annexed to this Crimean almoft
all countries. Neverthelefs, he htis robbed no-
body ; on the contrary, he has done fervice to
the ftate by increafihg the currency; But he
Bath defrauded the king^of the frhall profit upon
the coin. He hath indeed coined good money;
bnt he hath led others into the temptation of
coining bad. Yet deatlf is a fevere punifhmenti'
I knew a lawyer who was of opinion, that fuch
a criminal fhould be condemned, as a ufeful
hand, to work-in the royal mintj with, irons ta
his less. .

CHAP.

224 . ' A- C O M.M E N TAR Y o n ^

G H A P,- XVIII.

On. domeflic Theft, .

IN countries where a. .trifling domeflic theftj' ,
or breach of tr lift, is punifhed with death, is not '
the difproportioned punifhment dangerous to fo- -
ciety? Is it not even^ an eccouragement to lar- -
ceny ? If in this cafe. a mafter profecutes his fer- -
vant, and the unhappy wretch faffer death, the
whole neighbourhood hold the mafler in abhor--
rence : thsy perceive that the law is contrary tq
mture, and confeqiiently that it is ^-bad law.

What is the refiik ? . Mafters, to avoid oppro- ■
hrvumy content themfelves with' difcharging the :
thief, who afterwards ileals from another, .and .
gradually becomes familiar with difhonefty, The
punKhment being the fame for a fmaH ^ theft as
for a greater, he will natn rally ileal as much as
he can, and at laft will not fcruple to turn at
i^llin to pre ven r d eteflion . •

If, on the contrary, the punifhment be pro- -
portioned to the crime s , if thofe who are guilty
of a breach of truft be condemned to labour for
the public, the-mailer will not hefitate to bring
the oiFender to jufticej and the crime will be lefs
frequent: fo true it is, that rlgoroiis laws are -
©iten prodii£live .of enmes. .

GHAP.;

Crimes aad Punishments. 225

CHAP. XIX,.
On Btucide,.

THE celebrated Du Verger de Haurannej.
Abbe de St. Cyran, one of the founders of
Port Royalj in the year i<5o8, wrote a treatlfe
on filicide, which is become one of the fcarceft
books in Europe.

The Decalogue," fiiys that author, " for*-
" bids us to comrnir murder in which precept.

felf-murder feems no lefs to be underftoodj,
" than the murder of another : if, therefore^.
" there be cafes in which it is lawful to kill an-

other, there may be cafes alfo wherein fuiclde

may be allowed. But a man ought not to at-
" tempt his own life, till after having conftltfds
*' his reafon. Public authorityj which is the re-.
" prefentative of God, may dlfpofe of our lives.
" The reafon of man may alfo reprefent that
" of the Deity, it beiug a ray o£ the eternal
« light."

St. Cyran extends this argument to a great
length, which after all is a mere fophifm. But
when he comes to exernplifyj he is not quite fo
eafily aufwered. " A man may kill himfelf,"

favs

■0

5'26 A COMMENTAKY' on

fays he,> ** for the good of his prince, for the
" good of his- country, or for the good of his
parents."

It does not appear, that we could with juffice
condemn a CodruS, or a Ciirtius. What prince
would dare to punifli the family of a man who
had facriiiced himfelf for his fervice ? Or rather,
is there any prince who would dare not to re-
ward them. Sr. Thomas, before St. Cyran, faid^
the flime thing. But there was no need of either
of Thoma%of Bonaventure, nor of Haurannej,
io inform us, that a man who dies for his coun-
try deferVes our praife.

St. Gyrarl concludes, that it is lawful to da^>
for one's own fake, that which is praife-worthy
if done for another. The arguments of Plutarch,
of Seneca, of Montaigne, and a hundred others,,
are well known. I do not pretend to apologize
for an aftion which the laws have condemned 5 ..
but I do not recoUefl, that either the Old or
New Teftam^ent forbid a man to relinquifh his
life, when it is no longer fupportable. By the.:
Roman laws, fuicide was not forbidden; on the.
contrary, in a law of Mark Antony, which was
never' repealed, we find it thus written. " If - _
" your brother or your father^ being convi6ted
**' of no crime, hath put himfelf to death, either
**' to avoid pain, or being weary of life, or from -

"defpaic:

Crimes and Punishmenit 5. 227

defpair or madnefs, his Will fhall neverthe-
lefs be valid, or his heirs inherit according
" to law."

Notwithftanding this humane law of our an-
cient maflers, we ordain, that a flake fhall be
driven through the corps of the offender, and
his memory becomes infamous. We do all in
our power to difhonour his family. We punifh
a fon for having loft a father, and a widow be-
caufe flie is deprived of her hufband. We even
confifcate the efFe^s of the deceafed, and rob
the living of that which is juftly their due. This
cuftom, with many others, is derived from our
canon law, which denies Chriftian burial to thofe
who are guilty of fuicide, concluding thence,
.that it is not laM^ful to inherit on earth from
one who hath himfelf no inheritance in heaven.
The canon law alTures us, that Judas committed
a greater crime in hanging himfelf, than in bje-
traying Jefus Chrift.

CHAP.

A COMMENTARY on

t ft A P. XX.

Vn a certain Species of Mutilation.

WE find, in the Pandedl, a law of AdrlaB,
-which denounces death to the phyficians who
ihould make an eunuch, either bycaftration or by
bruifing the tejles. By the fame law, thepoffeffions
of thofe who fufFered caflration were confifcated.
Origen ought certainly to have been punifhed,
who fubmitted to this operation, from the rigid
interpretation of that pafTage in St. Matthew,
which fays, There be eunuchs, ivhich have made
themfelves eunuchs for the kingdom of heaven'' s fake.

Things changed in the reigns of fucceeding em-
perors, who adopted the luxury of Afia; efpecially
in the lower empire of Conflantinople, where eu-
nuchs became patriarchs and generals of armies.

In thefe our own times, it is the cuftom at
Rome to caftrate young children, to render them
worthy of being muficians to his Holinefs j fo that
Cafrato and Mufico del Papa are fynonimous. It
is not long fince you might have feen at Naples,
written in great letters over the doors of certain
barbers, ^lifi cafrano maravigliofamente iputi:
here boys are caftrated in the beft manner.

CHAP.

Chimes and Punish men

C H A P. XXL

On-Conjifcation.

IT is a maxim reccivei|yat the bar, that he
ivho forfeits his life forfeits his effeBs ; a. maxim
which prevails ia thpfe countries where cuftom
ferves inftead of law. So that, as we-%ave al*.
ready obferved, the children of one who puts
an end to his own life, are condemned to perifli
with hunger, equally with thofe of an alTaffin.
Thus, in every cafe, a whole family is puniflied
for the crime of an individual. Thus when the
father of a family is condemned to the gallies for
life, by an arbitrary fentence, whether it be for
having harboured a preacher, or for hearing his
fermon in a cavern or a defert, his wife and chil-
dren are reduced to beg their bread.

That law which confifts in depriving an or-
phan of fupport, and in giving to one man the
poffeffions of another, was unknown in the
times of the Roman republic. It was fir ft in-
troduced by Sylla, in his profcriptions, whofe
example one would fcarce have thought worthy
imitanon. Nor indeed was this law adopted by
Cefar, by Trajan,, or by Antoninus, whofe name

IT is

23© A COMMENTARY on

is ftiil pronounced with relpeft by all nations ;
and under Juilinian, confifcation took place on-
ly in cafe of bigh-treafon.

It feems that, in the times of feudal anarchy,
princes and lords not being very rich, fought to
increafe their revenue by the condemnation of
their fubjefts. Their laws being arbitrary, and
the Pvoman jurifprudence unknown, cufloms ei-
ther cruel or ridiculous prevailed. But now that
the power of princes is founded on immenfe and
certain revenues, there can be no need to fwell
their treafuries with the inconilderable wreck of
an unfortunate family.

In countries where the Roman law is eflablifh-
ed, confifcation is not admitted, except within
the jurifdidlion of the parliament of Touloufe.
It was formerly the law at Calais, but was abo-
liflied by the Englifh, whilft that city was in their
poHeffion. It is flrange, that the inhabitants of
the capital fhould be fubjeift to a feverer law
than the people in the country : but laws, hke
the cottages in a village, were generally efta-
biiihed by accident, and without attention to the
regularity of a general plan.

Who would believe that, in the year 16735
in the moJft brilliant period of the kingdom of
France, the advocate-general, Omer Talon, did
ill full parliament exprefs hlmfeif, on the fub-

Crimes and Punishments. 231'

je<fi: of a young lady named Canillac, in tlie fol-
lowing words.

" God fays,, in the 13th chapter of Deutero-
nomy, If thou comeft into a city where idola-
" tryreigneth, thoa ihalt iiirely fmite the inha-
" bitants of that city with the edge of the fword,
** dellroying it utterly and all that is therein.
And thou (halt gather all the fpoil thereof in-
" to the midfl of the flrect, and lhalt burn with
" fire the city, and all the fpoil thereof, for the
" Lord thy God;, and it fhall be an heap for
" ever; and there fhall cleave nought of the
curfed thing to thine hand."
" In like manner, in the crime of hlgh-treafonj^
the children were deprived of their inheritance,
" which became forfeited to the king. Naboth
being profecuted quia maleditxierat regiy king
Ahab took pofTeffion of his effects. David
" being informed that Mephibofheth had re--
" belled,- gave all his pofTeflions to Ziba who
" brought him the news : tua ftnt amnia quiS
" fuerunt MephiboJhethJ'

The queflion in difpute was, who fhoiiid in--
herit the paternal effate of Mile, de Canillac,.
■which having been confifcated, was abandoned
by the king to a lord of the treafury, and after--
wards bequeathed by liim to the teflatrix. In
this caufe concerning a girl of Auvergne it was, .

232 A COMMENTARY on-

that an advocate-general referred to Ahab, king
of a part of Palefline, who confifcated the vine-
yard of Naboth, after affaffinating the owner
with the fword of juftice : an a6lion fo abomi-
nable as to have paffed into^a proverb, intended
to infpire mankind \y\th. deteftation for fuch a6ts
qf t3?ranny. There was certainly no analogy-
between the vineyard of Naboth and the inheri-
tance of Mile, de Canillac ; nor hath the mur-
der and confifcation of the poffeffions of Mephi-
bofheth, the grandfon of Saul, and fon of Jo-
aachan, the friend and proteftor of David, the
I^aft affinity with the will of this lady.

It was with fuch pedantry, with fuch fooliili
quotations foreign to the fubjeft, with fuch ig-
Rorance of the firft Drincioles of human nature,
itvith fuch prejudices ill conceived and ill applied,
that laws have been explained and executed, by
men who acquired reputation in their fphere. I
leave to the reader that, which to tell him were
ftjperfluous. ,

CHAP.

G-RiMEs and Punishments. 33.3;!

CHAP. XXII.

On criminal Procedure^ and other Forms.

IF, in France, it fiioiild ever happen that the
laws of humanity foften fome of our rigorous
cuftoms, without facilitating tlie commiffion of
crimes, v/e may hope for reformation in thofe
legal, proceedings, wherein our legiuators feem
to have been iniluenced by too much feverity.
Our criminal procedure appears in many inftan-
ces to point only at the deftruftion of the accu-
fed. It is the only law which is uniform through-
out the whole kingdom j a law which ought
certainly to be no lefs favourable to the inno-
cent, than terrible to the guilty. ■

In England a man may recover damages for'
fcdfe imprifonment. - In France, on the contrary,,
an innocent perfon, who has had the misfortune
to be thrown into a dungeon and tortured al-
moil to death, has no confolafion, no damages
to hope for, no aftion againft any one ; and to
add to his misfortune,- he has for ever loft his
reputation. Why ? Becaufe his joints have been
dillocated j a circumftance which ought rather
to infpire compaiiion and refpe(^l:. The difcove-

'^7 3 - 'ly.

234 A COMMENTARY on

ry of crimes, fay the}'-, requires feverity : it is a-
war of human juftice againft iniquity. But there
is genero/ity and compaiiion even in war. The
brave are ever compaffionatCj and fnail the htw
delight in barbarity?

Let us compare tlie criminal procedure of the
Romans with ours. With them, the endence
were heard publicly in prefence of the acciifed,
who might anfwer or interrogate them, or em-
ploy counfel. This procedure was open and~
noble ; it breathed Roman magnanimity.

With us, all, is conduced in fee ret. A fmgle
Judge, only attended by his. clerk, hears each
witnefs feparately. This ciiftom, eftablifhed by
Francis I. was confirmed by the comm.ili!oner&
who were employed to digefl: the ordinance of
Lewis XIV. in 1670; which confirmation was
entirely owing to a miftake. They imagined,, in
reading the code ele 'Tefiihus^ that the words
tefles intrare judicii fecretum^ fignified that the
wltnelTes were examined in private; buty^-aT///?;?
means here the chamber of the judge. Intrare
facretum^ if intended to fignify private interro-
gation, would be falfe Latin. This part ©f our
law therefore is founded on a folecifm.

The evidence in thefe cafes are commonly the
dregs of the people, whom the judge may„ in
fuch private examioatloa, raake fay whatfoever

he

Crimes and Punishments. qtc

fee pleafes. They are examined a fccond time,
but ftili privately; and if, after this re-examina-
tion, they retradl" from their dcpofition, or vary
in any material circumfrance, they are puniflied
as faife evidence. So that if a fimple honefi: fel-
low, recollecting that he has faid too much, that,
he mifunderflood the jadge, or the judge him,
revoke his depofition from a principle of juftice,
he is puniflied as a reprobate. The natural con^
fequence of this is, that men will confirm a falfe
teftimony rather than expofe themfelves, for their:
honelly, to certain punifhment..

The law fee ms to oblige the magiflrate to be.
the enemy of the aceufed, rather than his judge |
it being left in the power of the magiflrate to
confront the evidence with the aceufed, or not,
as he fliall think proper. Amazing! that fo ne-
cefTary a part of the procedure fliould be left un-
determined.

A man being fufpe(Sed of a crime, knowing
that he is denied the benefit of counlei, flies his
country; a flcp to which he is encouraged by
every maxim of the law. But he may be con-
demned in his abfence, whether the crime be
proved or not. Strange laws! If a man be
charged with owing a fum of money, beforeJie
can be condemned to pay the demand, it is re-
{^uired that the debt be proved j but if his life .

be

236 A COMMENTARY ON

be in queftion, he may be condemned, by de-
fault, without any proof of tire crime. Is money
then of more importance than hfe? O ye judges-
and legiflators ! Confult the pious Antoninusj .
and the good Trajan : tiiey fuffered not the ab-^ -
fent to be condemned.

Do* your laws then allow the privilege of coun- -
fel to an extortioner, or a fraudulent bankruptj •.
and refufe it to one who may poffibly be a very
honeil: and honourable man? It there ever were
an inflance of innocence being juflified by means -
G'f counfel, the law, which deprives the accufed
of that benefit, is evidently unjufi:.

The parliament of Touloufe hath a very fm-
gular cuftom relative to the validity of evidence. ^
In other places demi-proofs are admitted, which
is a palpable abfurdity, there being no fuch thing
as demi-truth j but at Touloufe they admit of
q<uarters and eighths of a proof. • For inftancej .
an hearfay may be confidered as a quarter, and -
another hearfay, .more, vague- than the formerj .
as an eighth: fo- that eight 'hearfays, which in
faft are no other than the echo of a groundlefs '
report, conflitute a full proof. Upon this prin- -
cipie it was,' that poor Calas was condemned ta
mheel. - -

C-HAK'

Crimes raid Punishments. . 237

CHAP. XXIII.

'The Idea of Reformation.

MAGISTRATES are in themfelves fo re-
fpeftablcj that the inhabitants of the only coun-
try in which they are venal, fincerely pray to be
delivered from this cuftom : they wifh that the
civilian may by his merit eftabliili that jufticcy
Vi'hich in his v/ritincrs he hath fo nobly defended.
We may then poffibly hope to fee a regular and=
uniform fyftera of ia^vs.

Shall the lav/ of the provinces be always at
variance with the law in the capital? Shall a
man be right in Britanny, and wrong in Lan-
guedoc ? Nay, there are as many laws as there
are towns ; and, even in the fame parliament,
the maxims of one chamber are not the maxims
of another.

What afloniililng contrariety in, the laws of
one kingdom ! In Paris, a man who has been aa.
inhabitant during one year and a day, is reput-
ed a citizen. In Branch e-Comte^ a freeman v/ho,
during a year and a da}', inhabits a houfe in
mortmain, becomes a flave ; his collateral heirs
are excluded from inheriting his foreign acqui-

fitionsj

r

23-8 , A COMMENTARY, ^c.

fitions, and even his children are deprived of
their inheritance, if they liave been a year ab-
fent from the hoafe in which the father died.
This province is called Franche^ but where is
their freedom ?

Were we to attempt to draw a line between
civil authority and eccleiiaftical cuftoms, what
endlefs difputes would enfue ? In fhort, to what
fide foever we turn our eyes, we are prefented
with a confufed fcene of contradi£lions, uncer-
tainty, hardiliips, and arbitrary power. In the
prefent age, we feem univerfaliy aiming at per-
fedion ; let us not therefore negleft to perfect
the laws, on which our lives and fortunes de^
pend.

T- HE EN DU^,

!