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 A N 
 
 ESSAY 
 
 O N 
 
 CRIMES 
 
 AND 
 
 PUNISHMENTS, • 
 
 TRANSLATED FROM THE ITALIAN; 
 WITH A 
 
 COMMENTARY, 
 
 ATTRIBUTED TO 
 
 Monf. De VOLTAIRE, 
 TRANSLATED FROM THE FRENCH. 
 
 THE FOURTH EDITION. 
 
 ■ — * 
 
 In rebus quibufcumque difficilioribus non expeclandum, 
 ut quis fimul, & ferat, & metat, fed praeparatione opj.iS 
 eft, ut per gradus maturefcant. 
 
 Bacon. 
 
 LONDON. 
 
 Printed for F. Newbery, at the Corner of 
 St. Paul's Church-Yard. 
 
 MDCCLXXV. ~>
 
 T 
 2- & c 

 
 5 ' 
 
 #\ 
 
 [iii] 
 
 PREFACE 
 
 OF THE 
 
 TRANSLATOR. 
 
 TO THE FIRST EDITION. 
 
 PENAL LAWS, fo confider- 
 able a part of every fyftem of 
 legislation, and of fo great impor- 
 tance to the happinefs, peace and 
 fecurity of every member of focietyj 
 are ftill fo imperfect, and are at- 
 tended with fo many unneccfiary 
 circumftances of cruelty in all na- 
 tions, that an attempt to reduce 
 them to the ftandard of reafon muft 
 be interefting to all mankind. It 
 is not furprifing, then, that this lit- 
 tle book hath engaged the attention 
 
 A 2 of
 
 iv Preface of the Tranflator. 
 
 of all ranks of people in every part 
 of Europe. It is now about eighteen 
 months fince the firft publication; 
 in which time it hath palled no lefs 
 than fix editions in the original lan- 
 guage ; the third of which was 
 printed within fix months after its 
 firft: appearance. It hath been tranf- 
 lated into French ; that translation 
 hath alfo been feveral times reprint- 
 ed, and perhaps no book, on any 
 fubjecl, was ever received with more 
 avidity, more generally read, or 
 more univerfally applauded. 
 
 The author is the MarguisBEc- 
 caria, of Milan. Upon confider- 
 ing the nature of the religion and 
 government under which he lives, 
 the reafons for concealing his name 
 are obvious; the whole was read, at 
 
 different
 
 Preface of the Tranflator. v 
 
 different times, in a fociety of learn- 
 ed men in that city, and was pub- 
 lished at their defire. As to the trans- 
 lation, I have preferved the order of 
 the original, except in a paragraph 
 or two, which I have taken the li- 
 berty to reftore to the chapters to 
 which they evidently belong, and 
 from which they muft have been 
 accidentally detached. The French 
 tranflator hath gone much farther; 
 he hath not only tranfpofed every 
 chapter, but every paragraph in the 
 whole book. But in this, I con- 
 ceive, he hath affumed a right 
 which belongs not to any tranflator, 
 and which cannot be juflified. His 
 difpofltion may appear more fyftem- 
 atical, but certainly the author hath 
 as undoubted a r ght to the arrange- 
 ment of his own ideas, as to the 
 A 3 ideas
 
 vi Preface of the Tra?ijlator. 
 
 ideas themfelves; and therefore, to 
 deftroy that arrangement, is to per- 
 vert his meaning, if he had any 
 meaning in his plan, the contrary 
 to which can hardly be fuppofed. 
 
 With regard to the commentary, 
 attributed to Monf. de Voltaire, my 
 only authority tor luppofing it his, 
 is the voice of the public, which 
 indeed is the only authority we 
 have for mod of his works. Let 
 thofe who are acquainted with the 
 peculiarity of his manner judge for 
 themfelves. 
 
 The facls above-mentioned would 
 preclude all apology for this transla- 
 tion, if any apology were necef- 
 fary, for translating into our lan- 
 guage, a work which from the na-r 
 
 ture
 
 Preface of the TranJIator. vii 
 
 ture of the fubject muft be intereft- 
 ing to every nation ; but raiift be 
 particularly acceptable to the Eng- 
 li(h, from the eloquent and forcible 
 manner in which the author pleads 
 the caufe of liberty, benevolence 
 and humanity. It may however 
 be objected, that a treatife of this 
 kind is ufelefs in England, where, 
 from the excellence of our laws 
 and government, no examples of 
 cruelty or oppreffion are to be 
 found. But it mud alfo be allowed, 
 that much is ftill wanting to per- 
 fect our fyftem of legislation : the 
 confinement of debtors, the filth 
 and horror of our prifons, the cru- 
 elty of jailors, and the extortion of 
 the petty officers of juftice, to all 
 which may be added the melan- 
 choly reflection, that the number 
 
 of
 
 viii Preface of the Tranfator, 
 
 of criminals put to death in Eng- 
 land is much greater than in any 
 other part of Europe, are consider- 
 ations which will fufficiently anfwer 
 every objection. Thefe are my only 
 reafons for endeavouring to diffufe 
 the knowledge of the ufeful truths 
 contained in this little efTay; and I 
 fay, with my author, that if I can 
 be inflrumentai in refcuing; a iingle 
 victim from the hands of tyranny or 
 ignorance, his tranfports will fuffi- 
 ciently confole me for the contempt 
 of all mankind.
 
 TABLE OF CONTENTS. 
 
 INTRODUCTION. Page i 
 
 Chap. I. Of the Origin of Punifiments. 5 
 
 II. Of the Right to pwiifh. j 
 
 III. Confequences of the foregoing 
 Principles. — — 10 
 
 IV. Of the Interpretation of laws. 1 2 
 
 V. Of the Obfcurity of laws. 18 
 
 VI. Of the Proportion between 
 Crimes and Pnnijhments. 21 
 
 VII. Of efzimating the Degree 
 
 of Crimes. — — 26 
 
 VIII. Of the Divifion of Crimes. 29 
 
 IX. Of Honour. — — 33 
 
 X. Of Duelling. - - 38 
 
 XI. Of Crimes which dijlurb the 
 public Tranquillity. — 40 
 
 XII. Of the Intent of Puni foments. 43 
 
 XIII. Of the Credibility of JVit- 
 nejj'es. — — — 44 
 
 XIV. Of Evidence, and the Profs 
 of a Crime, and of the Form of 
 fudgment. — — 49 
 
 XV. Of fecret Accnfations . 5$ 
 
 XVI. Of Torture. — 5 y 
 
 XVII. Of pecuniary Punifhments. 69 
 
 XVIII. Of Oaths'. — 72 
 
 XIX. Of the Advantage of im- 
 mediate Punijhment. - 74
 
 CONTENTS. 
 
 Chap. XX. Of ABs of Violence. 79 
 
 XXI. Of the Puni/hment of Nobles. 80 
 
 XXII. 0/ Robbery. — 83 
 
 XXIII. Of Infamy y confidered as 
 
 a Punijhment. — 85 
 
 XXIV. Of Idlenefs. — 87 
 
 XXV. Of Banz/hment and Con- 
 fifcation. — — 89 
 
 XXVI. Of the Spirit of Family 
 
 in States. — — 92 
 
 XXVII. Of the Mildnefs of Pu- 
 niflments. — -- 98 
 
 XXVIII. Of the Punifrment of 
 Death. — — 102 
 
 XXIX. Of Imprifonment. 117 
 
 XXX. Of Profecution and P re- 
 fer ipt ion. — — 120 
 
 XXXI. Of Crimes of difficult 
 Proof. — — 125 
 
 XXXII. Of Suicide. - 132 
 
 XXXIII. Of Smuggling. 139 
 
 XXXIV. Of Bankrupts. 142 
 
 XXXV. Of Sanctuaries. 147 
 
 XXXVI. Of Rewards for ap- 
 prehendwg, or killing Crimi- 
 nals. — — 150 
 
 XXXVII. Of Attempts, Ac- 
 complices, and Pardon. 1 52 
 
 XXXVIII. Of figgefiive In- 
 terrogations* — 156
 
 CONTENTS. 
 
 Chap. XXXIX. Of a particular Kind 
 
 of Crimes. — 158 
 XL. Of jalfe Ideas of Utility. 160 
 XL I. Of the Means of prevent- 
 ing Crimes. — — 164 
 XLII. Of the Sciences. — 167 
 XLIII. Of Magijlrates. - 172 
 XLIV. Of Rewards. - 173 
 XLV. Of' Education. - 174 
 XLVI. Of Pardons. - 175 
 XL VII. Conclufion. - 178 
 
 A Commentary on the Book of 
 Crimes and Punishments. 
 
 Chap. I. The Occaforr of this Commen- 
 tary. — — i 
 
 II. Of Punipment. — iv 
 
 III. On the Punijhnent of He- 
 retics. — — vi 
 
 IV. On the Extirpation of He- 
 refy. — — xi 
 
 V. Of Profanation. — xv 
 
 VI . Of the Indulgence of the Ro- 
 mans in Matters of Religion, xxi 
 
 VII. Of the Crime of Preach- 
 ing ; and of i^nthony. xxiv 
 
 VIII. The Hifory of Simon 
 Morin. — — xxix 
 
 IX. Of Witches. — xxxii
 
 CONTENTS, 
 
 Chap. X. On the Punijhment of 
 
 Death. — — xxxvi 
 
 XL On Death- Warrants ■. xxxix 
 
 XII. On 'Torture. — xl 
 
 XIII. Of certain fanguinary 
 'Tribunals. — — xliii 
 
 XIV. On the Difference be- 
 tween political and natural 
 Laws. — — xlvi 
 
 XV. On the Crime of High 
 Treafon, on Titus Oates, 
 and on the Death of Au- 
 guftin De Thou. — xlix 
 
 XVI. On religious Confeffion. Iv 
 
 XVII. Of falje Money . - lx 
 
 XVIII. On Domeftic Theft. lxi 
 
 XIX. On Suicide. — lxii 
 
 XX. On a certain Species of 
 Mutilation. — lxvi 
 
 XXI. On Corffcation. - lxvii 
 
 XXII. On criminal Procedure, 
 
 and other Forms. - Ixxii 
 
 XXIII. The Idea of Reforma- 
 tion. — — lxxvif
 
 [ I J 
 
 INTRODUCTION. 
 
 IN every human fociety, there is an 
 effort continually tending to confer on 
 one part the height of power and hap- 
 pinefs, and to reduce the other to the ex- 
 treme of weaknefs and mifery. The in- 
 tent of good laws is to oppofe this effort, 
 and to diifufe their influence univerfally, 
 and equally. But men generally abandon 
 the care of their mofl important concerns 
 to the uncertain prudence and difcretion of 
 thofe, whofe intereft it is to re j eel the beft, 
 and wifeft. inftitutions ; and it is not till 
 they have been led into a thoufand mil- 
 takes in matters, the molt eifential to their 
 lives and liberties, and are weary of fuffer- 
 ing, that they can be induced to apply a 
 remedy to die evils, with which they are 
 oppreiTed. It is then they begin to con- 
 ceive, and acknowledge the moil palpable 
 truths, which, from their very iimplicity, 
 commonly efcape vulgar minds, incapable 
 
 B of
 
 2 INTRODUCTION. 
 
 of analyfing objects, accuftomed to receive 
 impreffions without distinction, and to be 
 determined rather by the opinions of 
 others, than by the refult of their own 
 examination. 
 
 If we look into hiftory we mall find, 
 that laws, which are, or ought to be, con- 
 ventions between men in a ftate of free- 
 dom, have been, for the moll part, the 
 work of the paffions of a few, or the con- 
 fequences of a fortuitous, or temporary 
 neceffity ; not dictated by a cool examiner 
 of human nature, who knew how to col- 
 lect in one point, the actions of a multi- 
 tude, and had this only end in view, the 
 greatcji happinefs of the greateji number. 
 Happy are thofe few nations, who have 
 hot waited, till the flow 'fucceffion of hu- 
 man viciffitudes, mould, from the extre- 
 mity of evil, produce a tranfition to good ; 
 but, by prudent laws, have facilitated the 
 progrefs from one to the other ! And how 
 great are the obligations due from mankind 
 to that philosopher, who from the obfeurity 
 of his clofet, had the courage to fcatter 
 
 amongft
 
 INTRODUCTION. 3 
 
 amongft the multitude, the feeds of ufeful 
 truths, fo long unfruitful ! 
 
 The art of printing has diffufed the 
 knowledge of thole philofophical truths, 
 by which the relations between fovereigns 
 and their fubjecls, and between nations, 
 are difcovered. By this knowledge, com- 
 merce is animated, and there has fprung up 
 a fpirit of emulation, and indufiry, worthy 
 of rational beings. Thefe are the produce 
 of this enlightened age; but the cruelty of 
 punifhments, and the irregularity of pro- 
 ceeding in criminal cafes, fo principal a 
 part of the legiflation, and fo much neg- 
 lected throughout Europe, has hardly ever 
 been called in queftion. Errors, accumu- 
 lated through many centuries, have never 
 yet been expofed by afcending to general 
 principles ; nor has the force of acknow- 
 ledged truths been ever oppofed to the un- 
 bounded licentioufnefs of ill-directed power, 
 which has continually produced fo many 
 authorized examples of the mofl unfeeling 
 barbarity. Surely, the groans of the weak, 
 facriiiced to the cruel ignorance, and indo- 
 le 2 lence
 
 4 INTRODUCTION. 
 
 lence of the powerful - y the barbarous tor- 
 ments lavifhed, and multiplied with ufelefs 
 feverity, for crimes either not proved, or 
 in their nature impoffible; the filth and 
 horrors of a prifon, increafed by the mofl 
 cruel tormentor of the miferable, uncer- 
 tainty, ought to have roufed the attention 
 of thofe whofe bufinefs is to direct the opi- 
 nions of mankind. 
 
 The immortal Montesquieu has but 
 ilightly touched on this fubjec~t. Truth, 
 which is eternally the fame, has obliged 
 me to follow the fteps of that great man : 
 but the ftudious part of mankind, for 
 whom I write, will eafily diftinguifh the 
 fuperftxucTiure from the foundation. I mall 
 be happy, if with him, I can obtain the 
 fecret thanks of the obfcure, and peaceful 
 difciples of reafon, and philofophy; and 
 excite that tender emotion, in which fen- 
 fible minds fympathize with him, who 
 pleads the caufe of humanity.
 
 [ s ] 
 
 A N 
 
 ESSAY 
 
 O N 
 
 CRIMES and PUNISHMENTS. 
 
 C H A P. I. 
 
 Of the Origin of Punijhments, 
 
 KKH^AWS are the conditions, un- 
 
 %H W* ^ er w ^ ic ^ men > naturall y in - 
 ^fM^JMt 1 dependent, united themfelves 
 k.^^-3* in Society. Weary of living 
 in a continual ftate of war, and of enjoy- 
 ing a liberty which became of little value, 
 from the uncertainty of its duration, they 
 facrificed one part of it, to enjoy the reft in 
 
 B 3 peace 
 
 N
 
 6 AN E S S A Y ON 
 
 peace and fecurity. The fum of all fhefe 
 portions of the liberty of each individual 
 conflituted the fovereignty of a nation ; and 
 was depofited in the hands of the fovereign, 
 as the lawful adminiftrator. But it was 
 not fumcient only to eflablim this depoiite ; 
 it was alfo necerTary to defend it from the 
 ufurpation of each individual, who will 
 always endeavour to take away from the 
 mafs, not only his own portion, but to en- 
 croach on that of others. Some motives, 
 therefore, that llrike the fenfes, were necef- 
 fary to prevent the defpotifm of each indi- 
 vidual from plunging fociety into its former 
 chaos. Such motives are the punifhments 
 eflablimed againft the infractors of the laws. 
 I fay, that motives of this kind are necef- 
 iary ; beeaufe, experience fhews, that the 
 multitude adopt no eftablifhed principle of 
 conduct; and becaufe, fociety is prevented 
 from approaching to that diffolution, (to 
 which, as well as all other parts of the 
 phyiical, and moral world, it naturally 
 tend^) only by motives, that are the imme- 
 diate objects of fenfe, and which being 
 continually prefented to the mind, are fuf-- 
 
 ficient
 
 CRIMES AND PUNISHMENTS. J 
 
 flcient to counterbalance the effects of the 
 paffions of the individual, which oppofe 
 the general good. Neither the power of 
 eloquence, nor the fublimefr. truths, are fuf- 
 ficient to reftxain, for any length of time, 
 thofe paffions, which are excited by the 
 lively impreffions of prefent objects, 
 
 CHAP. II. 
 
 Of the Right to pimifo. 
 
 VERY punifhment, which does not 
 arife from abfolute neceffity, fays the 
 great Montefquteu, is tyrannical. A propo- 
 rtion which may be made more general, 
 thus. Every act of authority of one man 
 over another, for which there is not an 
 abfolute neceffity, is tyrannical. It is. upon 
 this then, that the fovereign's right to pu- 
 nim crimes is founded -, that is, upon the 
 neceffity of defending the public liberty, 
 entrusted to his care, from the ufurpation 
 of individuals -, .and puniihments are ji^ir 
 in proportion, as the liberty, preferved by 
 the fovereign, is facred and valuable. 
 
 B a. Let
 
 8 ANESSAYON 
 
 . Let us confult the 'human heart, and 
 there we mall find the foundation of the 
 fovereign's right to punifli ; for no advan- 
 tage in moral policy can be laftjng, which 
 is not founded on the indelible fentiments 
 of the heart of man. Whatever law devi- 
 ates from this principle will always meet 
 with a refinance, which will deftroy it in 
 the end; for the fmalleft force, continually 
 applied, will overcome the moil: violent mo- 
 tion communicated to bodies. 
 
 No man ever gave up his liberty, merely 
 for the good of the public. Such a chi- 
 mera exifts only in romances. Every indi- 
 vidual wifhes, if pofiible, to be exempt 
 from the compacts, that bind the refl of 
 mankind. 
 
 The multiplication of mankind, though 
 flow, being too great for the means, which 
 the earth, in its natural mite, offered to 
 fatisfy neceffities, which every day became 
 more numerous, obliged men to feparate 
 again, and form new focieties. Thefe 
 naturally oppcfed the firit, and a flate of 
 
 war 

 
 CRIMES AND PUNISHMENTS. Q 
 
 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 ftock the 
 fmalleft portion poffible ; as much only as 
 was fufhcient to engage others to defend 
 it. The aggregate of thefe, the fmalleft 
 portions poihble, forms the right of pu- 
 nifhing: all that extends beyond this is 
 abufe, not juftice. 
 
 Observe, that by - jujiice I underftand 
 nothing more, than that bond, which is 
 necerlary to keep the intereft of individuals 
 united; without which, men would return 
 to their original ftate of barbarity. All pu- 
 nifhments, which exceed the neceffity of 
 preferving this bond, are in their nature 
 unjuft. We mould be cautious how we 
 affociate with the word jujiice, an idea of 
 any thing real, fuch as a phyfical power, 
 or a being that actually exifts. I do not, 
 by any means, fpeak of the juftice of God, 
 
 which
 
 10 ANESSAYON 
 
 which is of another kind, and refers imme- 
 diately to rewards and puniihments in a 
 life to come. 
 
 CHAP. III. 
 
 Confequetzces of the foregoing Pri?iciples. 
 
 THE laws only can determine the pu- 
 nifhment of crimes ; and the autho- 
 rity of making penal laws can only refide 
 With the legiilator, who reprefents the 
 whole fociety, united by the focial compact 
 No magiftrate then (as he is one of the 
 fociety) can, with juftiee, inflict on any 
 other member of the fame fociety, punifh- 
 ment, that is not ordained by the laws. 
 But as a punifhment, increafed beyond the 
 degree fixed by the law, is the juft punifh- 
 ment, with the addition of another; it 
 follows, that no magiflrate, even under a 
 pretence of zeal, or the public good, fhould 
 increafe the punifhment already determined, 
 by the laws. 
 
 If
 
 CRIMES AND PUNISHMENTS. II 
 
 If every individual be bound to fociety, 
 fociety is equally bound to him, by a con- 
 tract, which from its nature, equally binds 
 both parties. This obligation, which de- 
 scends from the throne to the cottage, and 
 equally binds the higher!:, and loweft of 
 mankind, fignines nothing more, than 
 that it is the interefl of all, that conven- 
 tions, which are ufeful to the greater! 
 number, mould be punctually obferved. 
 The violation of this compact by any indi- 
 vidual, is an introduction to anarchy. 
 
 The Sovereign, who reprefents the foci- 
 ety itfelf, can only make general laws, to 
 bind the members ; but it belongs not to 
 him to judge whether any individual has 
 violated the focial compact, or incurred 
 the punifhment in confequence. For in 
 this cafe, there are two parties, one repre- 
 fented by the fovereign, who infills upon 
 the violation of the contract, and the other 
 is the perfon accufed, who denies it. It is 
 neceilury then that there mould be a third 
 perfon to decide this conteft; that is to fay, 
 a judge, or magistrate, from whofe deter- 
 mination
 
 12 AN ESSAY ON 
 
 mination there ihould be no appeal ; and 
 this determination mould confiit. of a fun- 
 ple affirmation, or negation of fa<ft. 
 
 If it can only be proved, that the feve- 
 rity of punifhments, though not immedi- 
 ately contrary to the public good, or to 
 the end for which they were intended, viz. 
 to prevent crimes, be ufelefs ; then fuch 
 feverity would be contrary to thofe bene- 
 ficent virtues, which are the confequence 
 of enlip-htened reafon, which inftrucls the 
 fovereign to wilh rather to govern men in 
 a ftate of freedom and happinefs, than of 
 ilavery. It would alfo be contrary to juf- 
 tice, and the focial compadt. 
 
 CHAP. IV. 
 
 Of the Interpretatiofi of Laws. 
 
 U D G E S, in criminal cafes, have no 
 right to interpret the penal laws, be- 
 caufe they are not legiilators. They havq 
 not received the laws from our anceftors as 
 
 a domellic tradition, or as the will of a 
 
 tellator,
 
 CRIMES AND PUNISHMENTS. 13 
 
 teftator, which his heirs, and executors, 
 are to obey ; but they receive them from a 
 fociety actually exifting, or from the fove- 
 reign, its reprefentative. Even the autho- 
 rity of the laws is not founded on any 
 pretended obligation, or antient conven- 
 tion ; which mult be null, as it cannot 
 bind thole who did not exift at the time 
 of its inftitution ; and unjuft, as it would 
 reduce men, in the a<2;es following, to a 
 herd of brutes, without any power of 
 judging, or acting. The laws receive their 
 force and authority from an oath of fide- 
 lity, either tacit, or expreffed, which living 
 lubjects have fworn to their ibvereign, in 
 order to retrain the intetline fermentation 
 of the private interefts of individuals. 
 From hence iprings their true and natural 
 authoritv. Who then is their lawful inter- 
 preter ? The Ibvereign, that is, the repre- 
 fentative of fociety, and not the judge, 
 whole office is only to examine, if a man 
 have, or have not committed an aciion 
 contrary to the laws. 
 
 In
 
 14 A N E S S A Y O N 
 
 In every criminal caufe the judge mould 
 reafon fyllogiftically. The major mould 
 be the general law ; the minor, the confor- 
 mity of the action, or its oppofition to the 
 laws; the conclufion, liberty, or punifh- 
 ment. If the judge be obliged by the 
 imperfection of the laws, or chufes, to 
 make any other, or more fyllogifms than 
 this, it will be an introduction to uncer- 
 tainty. 
 
 There is nothing more dangerous than 
 the common axiom : the fpirit of the laws 
 is to be conjidered. To adopt it is to give 
 way to the torrent of opinions. This may 
 feem a paradox to vulgar minds, which are 
 more ftrongly affected by the fmalleft dif- 
 order 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 
 number of our ideas. The more complex 
 thefe are, the gi 'eater is the variety of por- 
 tions
 
 CRIMES AND PUNISHMENTS. 15 
 
 tions in which they may be confidered. 
 Every man hath his own particular point of 
 view, and at different times, fees the fame 
 objects in very different lights. The fpirit 
 of the laws will then be the refult of the 
 good, or bad logic of the judge ; and this 
 will depend on his good or bad digeftion -, 
 on the violence of his paffions ; on the 
 rank, and condition of the accufed, or on 
 his connections with the judge ; and on all 
 thofe little circumftances, which change 
 the appearance of objects in the fluctuating 
 mind of man. Hence we fee the fate of 
 a delinquent changed many times in paf- 
 iing through the different courts of judica- 
 ture, and his life and liberty, victims to 
 the falfe ideas, or ill humour of the judge ; 
 who miftakes the vague refult of his own 
 confufed reafoning, for the juft interpreta- 
 tion of the laws. We fee the fame crimes 
 punimed in a different manner at different 
 times in the fame tribunals ; the confe- 
 quence of not having confulted the con- 
 usant, and invariable voice of the laws, 
 but the erring inftability of arbitrary in- 
 terpretation. 
 
 The
 
 I 6 AN ESSAY ON 
 
 The diforders, that may arife from a 
 rigorous obfervance of the letter of penal 
 laws, are not to be compared with thofe 
 produced by the interpretation of them. 
 The firft are temporary inconveniences 
 which will oblige the legiflator to correct 
 the letter of the law, the want of precife- 
 nefs, and uncertainty of which has occa- 
 lioned thefe diforders ; and this will put 
 a flop to the fatal liberty of explaining - y 
 the fource of arbitrary and venal declama- 
 tions. When the code of laws is once 
 fixed, it mould be obferved in the literal 
 lenfe, and nothing more is left to the 
 judge, than to determine, whether an 
 action be, or be not conformable to the 
 written law. When the rule of right 
 which ought to direct, the actions of the 
 philofopher, as well as the ignorant, is a 
 matter of controverfy, not of fact, the peo- 
 ple are flaves to the magiftrates. The def- 
 potifm of this multitude of tyrants, is more 
 infupportable, the lefs the difhnce is 
 between the opprefibr and the opprefTed; 
 more fatal than that of one, for the tyranny 
 of many is not to be fhaken off, but by 
 
 having
 
 CRIMES AND PUNISHMENTS. If 
 
 having recourfe to that of one alone. It is 
 more cruel, as it meets with more oppo- 
 iition, and the cruelty of a tyrant is not in 
 proportion to his Strength, but to the obsta- 
 cles that oppofe him. 
 
 These are the means, by which fecu- 
 rity of perfon and property is belt obtained ; 
 which is juft, as it is the purpofe of unit- 
 ing in fociety; and it is ufeful, as each 
 perfon may calculate exactly the inconve- 
 niences attending every crime. By thefe 
 means, fubjects will acquire a fpirit of 
 independance and liberty ; however it may 
 appear to thofe, who dare to call the weak- 
 nefs of fubmitting blindly to their caprici- 
 ous and interefted opinions, by the facred 
 name of virtue* 
 
 These principles will difpleafe thofe> 
 who have made it a rule with themfelves, 
 to tranfmit to their inferiors the tyranny 
 they fuffer from their fuperiors. I mould 
 have every thing to fear, if tyrants were to 
 read my book ; but tyrants never read. 
 
 C C H A ?<
 
 jg an essay on 
 
 CHAP. V. 
 
 Of the Obfcurity of Laws. 
 
 IF the power of interpreting laws be an 
 evil, obfcurity in them muft be another, 
 as the former is the confequence of the 
 latter. This evil will be ftill greater, if 
 the laws be written in a language un- 
 known to the people ; who, being ignorant 
 of the confequences of their own actions, 
 become neceffarily dependant on a few, 
 who are interpreters of the laws, which, 
 in/lead of being public, and general, are 
 thus rendered private, and particular. 
 What muft we think of mankind, when 
 we reflect, that fuch is the eftablifhed 
 cuftom of the greateft part of our polifhed, 
 and enlightened Europe ? Crimes will be 
 lefs frequent, in proportion as the code 
 of laws is more univerfally read, and un- 
 derftood -, for there is no doubt, but that 
 the eloquence of the pamons is greatly 
 affifted By the ignorance, and uncertainty 
 of punifhments. 
 
 Hence
 
 CRIMES AND PUNISHMENTS. 19 
 
 Hence it follows, that without writ- 
 ten laws, no fociety will ever acquire a 
 fixed form of government, in which the 
 power is veiled in the whole, and not in 
 any part of the fociety; 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 reafon 
 fhews us, that the probability of human 
 traditions diminifhes in proportion as they 
 are diftant from their fources. How then 
 can laws refill the inevitable force of time, 
 if there be not a lafling monument of the 
 focial compact ? 
 
 Hence, we fee the ufe of printing, 
 which alone makes the public, and not a, 
 few individuals, the guardians and defen- 
 ders of the laws. It is this art, which, by 
 diffufing literature, has gradually diffi- 
 pated the gloomy fpirit of cabal and in- 
 trigue. To this art it is owing, that the 
 atrocious crimes of our ancestors, who 
 were alternately flaves, and tyrants, are 
 become lefs frequent. Thofe who are 
 acquainted with the hiflory of the two or 
 
 C 2 three
 
 20 AN ESSAY OK 
 
 three laft centuries, may obferve, how, 
 from the lap of luxury and effeminacy, 
 have fprung the molt, tender virtues, hu- 
 manity, benevolence, and toleration of hu- 
 man errors. They may contemplate the 
 effects of, what was fo improperly called,, 
 ancient fimplieity, and good faith ; huma- 
 nity groaning under implacable fuperfKti- 
 on ; the avarice and ambition of a few, 
 flaming, with human blood, the thrones 
 and palaces of kings; fecret treafons, and 
 public maffacres; every noble a tyrant over 
 the people; and the minifters of the gofpel 
 of Chrifl, bathing their hands in blood, in- 
 the name of the God of all mercy. We 
 may talk as we pleafe of the corruption and 
 degeneracy of the prefent age, but happily 
 we fee no fuch horrid examples of cruelty 
 and oppreffion. 
 
 CHAP.
 
 CRIMES AND PUNISHMENTS. 21 
 
 CHAP. VI. 
 
 Of the Proportion between Crimes and 
 Punifhments, 
 
 IT is not only the common interefl of 
 mankind, that crimes mould not be 
 committed, but that crimes of every kind 
 mould be lefs frequent, in proportion to 
 the evil they produce to fociety. There- 
 fore, the means made ufe of by the legis- 
 lature to prevent crimes, mould be more 
 powerful, in proportion as they are de- 
 flructive of the public fafety and happinefs, 
 and as the inducements to commit them 
 are Wronger, Therefore there ought to be 
 a fixed proportion between crimes and pu- 
 nimments. 
 
 It is impoflible to prevent entirely all 
 the diforders which the pafiions of mankind 
 caufe in fociety. Theie diforders increafe 
 in proportion to the number of people, 
 and the oppofition of private interefts. If 
 we confult hifiory, we {hall find them 
 
 C 3 increafing,
 
 ±2 AN ESSAY ON 
 
 increafing, in every ftate, with the extent 
 of dominion. In political arithmetic, it is 
 neceffary to fubltitute a calculation of pro- 
 babilities, to mathematical exactnefs. That 
 force, which continually impels us to ouf 
 own private intereft, like gravity, acts in- 
 ceiTantly, unlefs it meets with an obftacle 
 to oppole it. The effects of this force are 
 the confufed feries of human actions. Pu- 
 niihments, which I would call political 
 obftacles, prevent the fatal effects of private 
 interefi, without destroying the impelling 
 caufe, which is that fenfibility inseparable 
 from man. The legiilator acts, in this cafe, 
 like a fkilful architect, who endeavours to 
 counteract the force of gravity, by com- 
 bining the circumftances which may con- 
 tribute to the flrength of his edifice. 
 
 Tnr, neceiiity of uniting in fociety be- 
 ing granted, together with the conven- 
 tions, which the oppofite interefis of indi- 
 viduals mufl neceffarily require, a fcale of 
 crimes may be formed, of which the firft 
 degree mould confiit of thofe, which im- 
 mediately tend to the diilblution of fociety, 
 
 and
 
 CRIMES AND PUNISHMENTS. 23 
 
 and the laft, of the fmalleft poffible injuftice 
 done to a private member of that fociety. 
 Between thefe extremes will be compre- 
 hended, all actions contrary to the public 
 good, which are called criminal, and which 
 defcend by infenfible degrees, decreafing 
 from the higheft to the loweft. If mathe- 
 matical calculation could be applied to the 
 obfcure and infinite combinations of hu- 
 man actions, there might be a correfpond- 
 ing fcale of punifhments, defcending from 
 the greateft to the leaft ; but it will be 
 fufficient that the wife legiflator mark the 
 principal divifions, Without difturbing the 
 order, left to crimes of theftrft degree, be 
 affigned punifliments of the laft. If there 
 were an exact and univerfal fcale of crimes 
 and punifhments, we mould there have a 
 common meafure of the degree of liberty 
 and flavery, humanity and cruelty of diffe- 
 rent nations : 
 
 Any action, which is not comprehended 
 in the above-mentioned fcale, will not be 
 called a crime, or puniihed as fuch, except 
 by thofe who have an intereft in the deno- 
 
 C 4 minatiort;
 
 554 AN ESSAY ON 
 
 mination. The uncertainty of the extreme 
 points of this fcale, hath produced a fyfiem 
 of morality which contradicts the laws ; a 
 multitude of laws that contradict each 
 other ; and many, which expofe the belt 
 men to the feverelt punilhments, rendering 
 the ideas of vice and virtue vague and fluc- 
 tuating, and even their exiftence doubtful. 
 Kence that fatal lethargy of political bodies, 
 which terminates in their deilruclion. 
 
 Whoever reads, with a philofophic 
 eye, the hiiLory of nations, and their laws, 
 will generally rind, that the ideas of virtue 
 and vice, of a good or a bad citizen, change 
 with the revolution of ages ; not in pro- 
 portion to the alteration of circumftances, 
 and consequently conformable to the com- 
 mon good; but in proportion to the paffions 
 and errors by which the different law-givers 
 were fucceffively influenced. He will fre- 
 
 lently obferve, that the paffions and vices 
 
 of one age, are the foundation of the mo- 
 
 rality of the following; that violent paffion, 
 
 the offspring- of fhnaticifm and enthufiafm, 
 
 ed by time, which reduces all 
 
 the
 
 CRIMES AND PUNISHMENTS. 25 
 
 the phenomena of the natural and moral 
 world to an equality, become, by degrees, 
 the prudence of the age, and an ufeful in- 
 flrument in. the hands of the powerful, or 
 artful politician. Hence the uncertainty 
 of our notions of honour and virtue ; an 
 uncertainty which will ever remain, be- 
 caule they change with the revolutions of 
 time, and names furvive the things they 
 originally lignified ; they change with the 
 boundaries of ltates, which are often the 
 fame both in phy ileal and moral geo- 
 graphy. 
 
 Pleasure and pain are the only 
 fprings of action in beings endowed with 
 ienii'oility. Even amongft the motives 
 which incite men to acts of religion, the 
 inviilble legiilator has ordained rewards 
 and puniihments. From a partial diftribu- 
 tion of thefe, will arife that contradiction, 
 fo little obferved, becaufe fo common j I 
 mean, that of punifhing by the laws, the 
 crimes v/hich the laws have occafioned. If 
 an equal punimment be ordained for two 
 crimes that injure fociety in different de- 
 grees,
 
 20 AN E S S A Y ON 
 
 grees, there is nothing to deter men from 
 committing the greater, as often as it is at- 
 tended with greater advantage. 
 
 G H A P. VII. 
 
 Of ejiimating the Degree of Crimes. 
 
 ^■~ 1 HE foregoing reflections authorife me 
 to aifert, 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 com- 
 mitted ; for this will depend on the actual 
 impremon of objects on the fenfes, and on 
 the previous difpofition of the mind ; both 
 which will vary in different perfons, and 
 even in the fame perfcn at different times, 
 according to the fucceiiion of ideas, paflions, 
 and circumflances. Upon that fyflem, it 
 would be neceifary to form, not only a par- 
 ticular code for every individual, but a new 
 penal law for every crime. Men, often 
 with the befl intention, do the greateffc in- 
 jury
 
 CRIMES AND PUNISHMENTS. 2j 
 
 jury to fociety, and with the worft do it the 
 moil: effential fervices. 
 
 Others have eftimated crimes rather b/ 
 the dignity of the perfon offended, than by 
 their confequences to fociety. If this were 
 the true ftandard, the fmalleft irreverence 
 to the divine Being ought to be punimed 
 with infinitely more feverity, than the af- 
 farlination of a monarch. 
 
 In fhort, others have imagined, that the 
 greatnefs of the fin mould aggravate the 
 crime. But the fallacy of this opinion will 
 appear on the flighteft confideration of the 
 relations between man and man, and be- 
 tween God and man. The relations be- 
 tween man and man are relations of equa- 
 lity. Neceffity alone hath produced, from 
 the oppofition of private paffions and in- 
 terefts, the idea of public utility, which is 
 the foundation of human juiiice. The 
 other are relations of dependance, between 
 an imperfect creature and his Creator, the 
 moft perfect of beings, who has reierved 
 to himfelf the fole right of being both law- 
 
 er,
 
 2% ANESSAVON 
 
 giver, and judge ; for he alone can, without 
 injufcice, be, at the fame time, both one 
 and the other. If he hath decreed eternal 
 punifhments for thofe who difobey his 
 will, mall an infect dare to put himfelf in 
 the place of divine juftice, or pretend to 
 punifh for the Almighty, who is himfelf 
 all fufficient ; who cannot receive impref- 
 fions of pleafure, or pain, and who alone, 
 of all other beings, acts without being 
 acted upon ? The degree of fin depends on 
 the malignity of the heart, which is im- 
 penetrable to finite beings. How then can 
 the degree of iin ferve as a itandard to de- 
 termine the degree of crimes ? If that 
 were admitted, men may punifh when God 
 pardons, and pardon when God condemns ; 
 and thus act in opposition to the fupreme 
 &einjr. 
 
 C H A P.
 
 CRIMES AND PUNISHMENTS. 29 
 
 CHAP. VIII. 
 
 Of the Divifion of Crimes. 
 
 WE have proved, then, that crimes are 
 to be eftimated by the injury done to 
 fociety. This is one of thofe palpable truths, 
 which, though evident to the meaneft ca- 
 pacity, yet, by a combination of circum- 
 flances, are only known to a few thinking 
 men in every nation, and in eveiy age. 
 But opinions, worthy only of the defpotifm 
 of Alia, and paffions, armed with power 
 and authority, have, generally by infen- 
 fible, and fometimes by violent impreffions 
 on the timid credulity of men, effaced 
 thofe fimple ideas, which perhaps confli- 
 tuted the firft philofophy of infant fociety. 
 Happily the philofophy of the prefent en- 
 lightened age feems again to conduct us to 
 the fame principles, and with that degree 
 of certainty, which is obtained by a ra- 
 tional examination, and repeated expe- 
 rience 
 
 A SC3
 
 30 AN ESSAY OM 
 
 A scrupulous adherence to ordei- 
 would require, that we fhould now exa- 
 mine and diftinguifh the different fpecies 
 of crimes, and the modes of punifhment ; 
 but they are fo variable in their nature, 
 from the different circumstances of ages, 
 and countries, that the detail would be 
 tirefome and endlefs. It will be fufficient 
 for my purpofe to point out the moil ge- 
 neral principles, and the moft common 
 and dangerous errors, in order to undeceive, 
 as well thofe who, from a millaken zeal 
 for liberty, would introduce anarchy and 
 confulion, as thofp, who pretend to reduce 
 fociety in general to the regularity of a 
 convent. 
 
 • Some crimes are immediately destruc- 
 tive of fociety, or its reprefentative ; others 
 attack the private fecurity of the life, pro- 
 perty, or honour of individuals ; and a 
 third clafs confifts of fuch actions, as are 
 contrary to the laws which relate to the 
 general good of the community. 
 
 The
 
 CRIMES AND PUNISHMENTS. 31 
 
 The firft, which are of the highefl de- 
 gree, as they are moft deftructive to fo^ 
 fociety, are called crimes of Leze-mcjejly * 
 Tyranny, and ignorance, which have con- 
 founded the clearer! terms and ideas, have 
 given this appellation to crimes of a difre- 
 rent nature, and confequently haye efta- 
 blifhed the fame puniihment for each ; and 
 on this occafion, as on a thoufand others, 
 men have been iacnficed, victims to a 
 word. Every crime, even of the moft pri- 
 vate nature, injures fociety; but every crime 
 does not threaten its immediate deltruction. 
 Moral, as well as phyfical aclions, have 
 their iphere of activity dirTereutiy circum- 
 scribed, like all the movements of nature, 
 by time and ipace ; it is therefore a fophi- 
 ftical interpretation, the common phiioib- 
 phy of Haves, that would confound the 
 limits of things, eitablimed by eternal 
 truth. 
 
 *-i i-<» 
 
 To thefe fucceed crimes which 
 deftructive of the fccurity of individuals. 
 This fecurity being the principal end of 
 
 all 
 
 * ftigh-Treafon.
 
 32 AN ESSAV ON 
 
 all fociety, and to which every citizen 
 hath an undoubted right, it becomes in- 
 difpenfably neceilary, that to thefe crimes 
 the greater! of puriimments mould be af- 
 figned. 
 
 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 inconveniences, than thofe which 
 are the natural confequences of the action 
 itfelf, is a political dogma, which mould 
 be defended by the laws, inculcated by the 
 magistrates, and believed by the people ; a 
 facred dogma, without which there can be 
 no lawful fociety ; a juit recompence for 
 our facririce of that univerfal liberty of ac- 
 tion, common to all fenfible beings, and 
 only limited by our natural powers. By 
 this principle our minds become free, active, 
 and vigorous ; by this alone we are infpired 
 with that virtue which knows no fear, fo 
 different from that pliant prudence, wor- 
 thy of thofe only who can bear a preca- 
 rious exiftence. 
 
 At-
 
 CRIMES AND PUNISHMENTS. 
 
 3 
 
 Attempts, therefore, againlt. the life, 
 •and liberty of a citizen, are crimes of the 
 higheft nature. Under this head we com- 
 prehend not only arlaiiinations, and rob- 
 beries, committed by the populace, but by 
 grandees and magistrates ; whofe example 
 acts with more force, and at a greater 
 diftance, deftroying the ideas of juftice and 
 duty among the fubjects, and fubftituting 
 that of the right of the ftrongeft, equally 
 dangerous to thofe who exercife it, and to 
 thofe who fufrer. 
 
 CHAP. IX, 
 
 Of Honour. 
 
 THERE is a remarkable difference be- 
 tween the civil laws, thofe jealous 
 guardians of life and property, and the laws 
 of what is called honour, which particu- 
 larly refpects the opinion of others. Ho- 
 nour is a term, which has been the foun- 
 dation of many long and brilliant rea- 
 fonings, without annexing to it any pre- 
 
 D cile.
 
 34 AN ESSAY ON 
 
 cife, or fixed idea. How miferable is the 
 condition of the human mind, to which 
 the moft diftant, and leaft eiTential mat- 
 ters, the revolutions of the heavenly bodies, 
 are more distinctly known, than the moft 
 interesting truths of morality, which are 
 always confufed and fluctuating, as they 
 happen to be driven by the gales of paf- 
 fion, or received and tranfmitted by ig- 
 norance ! But this will ceafe to appear 
 Strange, if it be confidered, that as ob- 
 jects, when too near the eye, appear con- 
 fufed, lb the too great vicinity of the ideas 
 of morality, is the reafon why the Simple 
 ideas, of which they are compofed, are 
 eafily confounded ; but which mull be 
 feparated, before we can investigate the 
 phenomena of human fenfibility ; and the 
 intelligent obferver of human nature will 
 ceafe to be furprifed, that fo many ties, 
 and fuch an apparatus of morality, are 
 neceffary to the fecurity, and happinefs of 
 mankind. 
 
 Honour, then, is one of thofe com- 
 plex ideas, which are an aggregate not 
 
 only
 
 CRIMES AND PUNISHMENTS. 35 
 
 only of fimple ones, but of others fo com- 
 plicated, that in their various modes of 
 affecting the human mind, they fome- 
 times admit, and fometimes exclude part 
 of the elements of which they are com- 
 • pofed ; retaining only fome few of the mofl 
 common, as many algebraic quantities ad- 
 mit one common diviibr. To find this 
 common diviibr of the different ideas at- 
 tached to the word honour, it will be ne- 
 ceffary to go back to the original formation 
 of fociety. 
 
 The firft laws, and the firft magiftrates, 
 owed their exiilence to the necemty of 
 preventing the diforders, which the natu- 
 ral defpotiim of individuals would una- 
 voidably produce. This was the object of 
 the eftablimment of fociety, and was either 
 in reality, or in appearance, the princi- 
 pal defign of all codes of laws, even the 
 moil pernicious. But the more intimate 
 connections of men, and the progrc 
 their knowledge, gave rife to an infinite 
 number of nccefiitics, and mutual ac 
 friendship, between the members of foeic 
 
 D 2
 
 36 AN E S S A Y ON 
 
 Thefe neceffities were not forefeen by the 
 laws, and could not be fatisfied by the 
 actual power of each individual. At this 
 epocha began to be eftablifhed the def- 
 potifm of opinion, as being the only means 
 of obtaining .thofe benefits, which the law 
 could not procure, and of removing thofe 
 evils, againft which the laws were no fe- 
 curity. It is opinion, that tormentor of the 
 wife, and the ignorant, that has exalted 
 the appearance of virtue above virtue it- 
 ielf. Hence the efleem of men becomes 
 not only uieful, but necelTary to every one, 
 to prevent his linking below the common 
 level. The ambitious man grafps at it, 
 as being neceifary to his defigns -, the vain 
 man fues for it, as a teftimony of his me- 
 rit -, the honeft man demands it, as his 
 due ; and moft men coniider it as necerlary 
 to their exiflence. 
 
 Honour, being produced after the for- 
 mation of fociety, could not be a part of 
 the common depofite, and therefore, whilfr. 
 we acl under its influence, we return, for 
 that inftant, to a fbte of nature, and with- 
 draw
 
 CRIMES AND PUNISHMENTS. 37 
 
 draw ourfelves from the laws, which, in 
 this cafe, are infurficient for our protec- 
 tion. 
 
 Hence it follows, that in extreme po- 
 litical liberty, and in abfolute defpotifm, 
 all ideas of honour difappear, or are con- 
 founded with others. In the firft cafe, 
 reputation becomes ufelefs from the defpo- 
 tifm of the laws ; and in the fecond, the 
 defpotifm of one man, annulling all civil 
 existence, reduces the reft to a precarious 
 and temporary perfonality. Honour then 
 is one of the fundamental principles of 
 thofe monarchies, which are a limited def- 
 potifm, and in thefe, like revolutions in 
 defpotic ftates, it is a momentary return to 
 £ ftate of nature, and original equality. 
 
 D 3 CHAP.
 
 ^S AN ESSAY ON 
 
 CHAP. X. 
 
 Of Duelling. 
 
 TO ROM the neceffity of the efteem of 
 * others, have arifen iingle combats, and 
 they have been eftablifhed by the anarchy 
 of the laws. They are thought to have 
 been unknown to the ancients •> perhaps 
 becaufe they did not affemble in their tem- 
 ples, in their theatres, or with their friends, 
 iufpiciouily armed with fwords ; and, per- 
 haps, becaufe fmgle combats were a com- 
 mon fpectacle, exhibited to the people by 
 gladiators, who were flaves, and whom free- 
 men difdained to imitate. 
 
 In vain have the laws endeavoured to 
 abolim this cuftom, by punifliing the of- 
 fenders with death. A man of honour, de- 
 prived of the eileem of others, forefees that 
 mufl be reduced, either to a folitary 
 i fcence, infupportable to a focial creature, 
 become the object of perpetual iniult ; 
 
 con-
 
 CRIMES AND PUNISHMENTS. 39 
 
 liderations fufficient to overcome the fear 
 of death. 
 
 What is the reafon, that duels are 
 not ib frequent among the common people, 
 as amongll the great ? Not only becaule 
 they do not wear fwords, but becaufe, to 
 men of that clafs, reputation is of lefs 
 importance, than it is to thofe of a higher 
 rank, who commonly regard each other 
 with dinruft and jealoufy. 
 
 It may not be without its ufc to repeat 
 here, what has been mentioned by other 
 writers ; viz. that the belt method of pre- 
 venting this crime is to punifli the aggref- 
 for, that is, the perfon who gave occafion 
 to the duel, and to acquit him, who, with- 
 out any fault on his fide, is obliged to de- 
 fend that, which is not furhciently fecured 
 to him by the laws. 
 
 D 4. CHAP,
 
 4Q ANESSAYON 
 
 CHAP. XI. 
 
 Of dimes, which difturb the public 
 Tranquillity. 
 
 ANOTHER clafs of crimes are thofe 
 which difturb the public tranquillity 
 and the quiet of the citizens ; fuch as tu- 
 mults and riots in the public ftreets, which 
 are intended for commerce and the paftage 
 of the inhabitants ; the difcourfes of fana- 
 tics, which roufe the paflions of the curi- 
 ous multitude, and gain ftrength from the 
 number of their hearers, who, though 
 
 deaf to calm and folid reafoning, are al- 
 ways affected by obfcure and myfterious 
 enthufiafm, 
 
 The illumination of the ftreets, during 
 the night, at the public expence > guards 
 Rationed in different quarters of the city ; 
 the plain and moral difcourfes of religion, 
 referved for the filence and tranquillity of 
 churches, and protected by authority; and 
 
 harangues
 
 CRIMES AND PUNISHMENTS. 41 
 
 harangues in fupport of the intereft of the 
 public, delivered only at the general meet- 
 ings of the nation, in parliament, or where 
 the fovereign refides ; are all means to pre- 
 vent the dangerous effects of the mifguided 
 parlions of the people. Thefe mould be 
 the principal objects of the vigilance of a 
 magi urate, and which the French call 
 Police; but if this magistrate mould act in 
 an arbitrary manner, and not in conformity 
 to the code of laws, which ought to be in the 
 hands of every member of the community, 
 he opens a door to tyranny, which always 
 furrounds the confines of political liberty. 
 
 I do not know of any exception to this 
 general axiom, that Every member of fociety 
 Jhouid know when he is criminal, and when 
 innocent. If cenfors, and, in general, ar- 
 bitrary magiftrates, be nccelTury in any go- 
 vernment, it proceeds from fome fault in 
 the constitution. The uncertainty of crimes 
 hath facriheed more victims to fecret tyran- 
 ny, than have ever fuffered by public and 
 folemn cruelty. 
 
 What
 
 42 AN ESSAY ON 
 
 What are, in general, the proper pu- 
 niiliments for crimes ? Is the puniiTiment of 
 death really iifefid, or neceffary for the fafety 
 or good order of fociety ? Are tortures and 
 torments confident with jujllce, or do they 
 anfwer the ^/z^propofed by the laws ? Which 
 is the beft method of preventing crimes ? 
 Are the fame puniminents 'equally ufeful at 
 ail times ? What influence have they on 
 manners ? Thefe problems mould be folved 
 with that geometrical precifion, which the 
 mift of fophifhy, the fedu<ftion of elo- 
 quence, and the timidity of doubt, are un- 
 able to rcflil". 
 
 If I have no other merit than that of 
 having firft prefented to my country, with 
 a greater degree of evidence, what other 
 nations have written, and are beginning 
 to praclife; I mail account myfelf fortu- 
 nate; but if, by fupporting the rights of 
 mankind and of invincible truth, I mall 
 contribute to fave from the agonies of 
 death one unfortunate victim of tyranny, 
 or of ignorance, equally fatal ; his bleffing 
 and 'tears of tranfport, will be a fufficient 
 
 con-
 
 CRIMES AND PUNISHMENTS. 4.3 
 
 confolation to me for the contempt of all 
 mankind. 
 
 CHAP. XII. 
 
 Of the Intent ofPunifiments. 
 
 FROM the foregoing considerations it is 
 evident, that the intent of punimments, 
 is not to torment a fenfibie being, nor to 
 undo a crime already committed. Is it 
 poflible that torments and ufelefs cruelty, 
 the inftrument of furious fanaticiim, or the 
 impotency of tyrants, can be authorifed by 
 a political body ? which, fo far from being 
 influenced by paffion, mould be the cool 
 moderator of the pamons of individuals. 
 Can the groans of a tortured wretch recall 
 the time pafc, or reverfe the crime he has 
 committed ?■ 
 
 The end of punifhment, therefore, is 
 no other, than to prevent the criminal from 
 doing further injury to fociety, and to 
 prevent others from committing the like 
 
 offence.
 
 44 AN ESSAY ON 
 
 offence. Such punifhments, therefore, and 
 fuch a mode of inflicting them, ought to 
 be chofen, as will make the ftrongefr, and 
 moft. lailing impreflions on the minds of 
 others, with the leafi torment to the body 
 of the criminal. 
 
 CHAP. XIII. 
 
 Of the Credibility of Witnejfes. 
 
 I^O determine exactly the credibility of 
 a witnefs, and the force of evidence, 
 is an important point in every good legi-. 
 flatioil. Every man of common fenfe, that 
 iSj every one whofe ideas have fome con- 
 nexion with each other, and whofe fenfa- 
 tions are conformable to thofe of other 
 men, may be a witnefs ; but the credibi- 
 lity of his evidence will be in proportion 
 as he is interested in declaring or conceal- 
 ing the truth. Hence it appears, how 
 frivolous is the reafoning of thofe, who 
 reject the teftimonv of women on account 
 of their weaknefs j how puerile it is, not 
 
 to
 
 CRIMES AN'D PUNISHMENTS. 45 
 
 to admit the evidence of thofe who are 
 under fentence of death, becaufe they are 
 dead in law ; and how irrational to ex- 
 clude perfons branded with infamy : for in 
 all thefe cafes they ought to be credited, 
 when they have no interefl in giving faife 
 teftimony. 
 
 The credibility of a witnefs, then, mould 
 only diminim in proportion to the hatred, 
 friendfhip, or connexions, fubiifting be- 
 tween him and the delinquent. One wit- 
 nefs is not fufficient ; for whilft the accufed 
 denies what the other affirms, truth remains 
 fufpended, and the right that every one 
 has to be believed innocent, turns the ba- 
 lance in his favour. 
 
 The credibility of a witnefs is the lefs f 
 as the atrocioufnefs of the crime is greater, 
 from the improbability of its having been 
 committed; as in cafes of witchcraft, and 
 acts of wanton cruelty. The writers on 
 penal laws have adopted a contrary prin- 
 ciple, viz. that the credibility of a witn. 
 is greater, as the crime it; more atrocious. 
 
 Behold
 
 46 AN ESSAY ON 
 
 Behold their inhuman maxim, dictated by 
 the moil cruel imbecility. In atrocijjimis, 
 leviores conjeSlurce fujjiciunt & licet judici 
 jura tranfgredi. Let us tranilate this fen- 
 tence, that mankind may fee one of the 
 many unreafonable principles to which they 
 are ignorantly fubject. In the mojl atrocious 
 crimes the fiightejl conjectures are fujficient, 
 and the judge is allowed to exceed the limits of 
 the law. The abfurd practices of legifla- 
 tors, are often the effect of timidity, which 
 is a principal fource of the contradictions 
 of mankind. The legiflators, (or rather 
 lawyers, whofe opinions, when alive, were 
 interefted and venal, but which after their 
 death become of decifive authority, and are 
 the fovereign arbiters of the lives and for- 
 tunes of men) terrified by the condemna- 
 tion of fome innocent perfon, have bur- 
 thened the law with pompous and ufelefs 
 formalities, the fcrupulous obfervance of 
 which will place annarchical impunity on 
 the throne of juflice; at other times, per-' 
 plexed by atrocious crimes of difficult proof,- 
 they imagined themfelves under a neceffity 
 of fuperceding the very formalities efta- 
 
 blimed
 
 CRIMES AND PUNISHMENTS. 
 
 47 
 
 blifhed by themfelves ; and thus, at one 
 time, with defpotic impatience, and at an- 
 other with feminine timidity, .they trans- 
 form their folemn judgments into a game 
 of hazard. 
 
 But to return. In the cafe of witch- 
 craft, it is much more probable, that a num- 
 ber of men mould be deceived, than that 
 any perfon mould exercife a power which 
 God hath refufed to every created being. 
 In like manner, in cafes of wanton cruelty, 
 the prefumption is always againil the ac- 
 cufer, for no man is cruel without fome in- 
 tereft, without fome motive of fear or hate.- 
 There are no fpontaneous or fuperfluous 
 fentiments in the heart of man ; they are 
 all the refult of impremons on the fenfes. 
 
 The credibility of a witnefs may alio 
 be diminiihed, by his being a member of a 
 private fociety, whofe cuftoms and princi- 
 ples of conduct, are either not known, or 
 are different from thofe of the public. 
 Such a man has not only his own paffions, 
 
 but
 
 43 AN ESSAY ON 
 
 but thofe of the fociety of which he is a 
 member. 
 
 Finally, the credibility of a witnefs 
 is null, when the queflion relates to the 
 wot ds of a criminal ; for the tone of voice, 
 the geflure, all that precedes, accompa- 
 nies and follows, the different ideas which 
 men annex to the fame words, may fo al- 
 ter and modify a man's difcourfe, that it 
 is almoft impomble to repeat them precifely 
 in the manner in v/hich they were fpoken. 
 Befides, violent and uncommon actions, 
 fuch as real crimes, leave a trace in the 
 multitude ofcircumftances that attend them, 
 and in their effects -, but words remain only 
 in the memory of the hearers, who are 
 commonly negligent or prejudiced. It is 
 infinitely eafier then to found an accufation 
 on the words, than on the actions of a 
 man ; for in thefe, the number ofcircum- 
 ftances, urged againit the accufed, afford 
 him variety of means of juftiiication. 
 
 CHAP,
 
 CRIMES AND PUNISHMENTS, 49 
 
 CHAP. XIV. 
 
 Of Evidence and the Proofs 'of a Crime* 
 and of the Form of Judgment i 
 
 THE following general theorem is of 
 great ufe in determining the certainty 
 bf a fact. When the proofs of a crime are 
 dependant on each other, that is, when 
 the evidence of each witnefs, taken fepa- 
 rately, proves nothing ; or when all the 
 proofs are dependant upon one, the num- 
 ber of proofs neither increafe nor diminim 
 the probability of the fact. ; 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 independant on each other, 
 the probability of the facl; increafes in pro- 
 portion to the number of proofs ; for the 
 falihood of one does not diminifh the vera- 
 city of another. 
 
 It may feem extraordinary, that I fpeak 
 of probability with regard to crimes, which* 
 to deferve a punifhment, muft be certain^ 
 
 B Bwt
 
 50 AN ESSAY ON 
 
 But this paradox will vanifh, when it is 
 confidered, that, ftrictly fpeaking, moral 
 certainty is only probability ; but which is 
 called a certainty, becaufe every man in his 
 fenfes affents to it from an habit produced 
 by the necerlity of acting, and which is ante- 
 rior to all fpeculation. That certainty which 
 is neceffary to decide, that the accufed is 
 guilty, is the very fame which determines 
 every man in the moil important tranfac- 
 tions of his life. 
 
 The proofs of a crime maybe divided 
 into two claffes, perfect and imperfect. I 
 call thofe perfect which exclude the pof- 
 iibility of innocence; imperfect, thofe which 
 do not exclude this porlibility. Of the nrft, 
 one only is fufficient for condemnation ; of 
 the fecond, as many are required as form a 
 perfect proof ; that is to fay, that though 
 each of thefe, feparately taken, does not 
 exclude the poffibility of innocence, it is 
 neverthelefs excluded by their union. It 
 mould be alio obferved, that the imper- 
 fect proofs, of which the accufed, if inno- 
 cent,
 
 CRIMES AND PUNISHMENTS. $i 
 
 cent, might clear himfelf, and does not* 
 become perfect. 
 
 But it is much eafier to feel this moral 
 certainty of proofs, than to define it ex- 
 actly. For this reafon, I think it an excel- 
 lent law which eflablifhes affirmants to the 
 principal judge, and thofe chofen by lot; 
 for that ignorance, which judges by its 
 feelings, is lefs fubjedt to error, than the 
 knowledge of the laws, which judges by 
 opinion. Where the laws arc clear and 
 precife, the office of the judge is merely to 
 afcertain the fact. If, in examining the 
 proofs of a crime, acutenefs and dexterity 
 be required ; if clearnefs and precifion be 
 neceffary in fumming up the refult; to 
 judge of the refult itfelf, nothing is want- 
 ing but plain and ordinary good fQn{e } 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 ftudies. Happy the na- 
 tion, where the knowledge of the law is 
 not a fcience ! 
 
 I 2 Vr
 
 §1 AN ESSAY GN 
 
 If is aft admirable law which ordairrs r 
 that every man mall be tried by his peers ; 
 for when life, liberty and fortune are in 
 queftion, the fentiments, which a diffe- 
 rence of rank and fortune infpire, fhouid 
 be filent ; that fuperiority with which the 
 fortunate look upon the unfortunate, and 
 that envy with which the inferior regard 
 their fuperiors, mould have no influence. 
 But when the crime is an offence againft a 
 fellow fubj eel, one half of the judges mould 
 he peers to the accufed, and the other, 
 peers to the perfon offended. So that all 
 private intereft, which, in fpiteof ourfelves, 
 modifies the appearance of objects-, even 
 in the eyes of the moil equitable, is coun- 
 teracted, and nothing remains to turn afide 
 the direction of truth and the laws. It is 
 alio juif, that the accufed fhould have the 
 liberty of excluding a certain number of his 
 judges. Where this liberty is enjoyed for 
 a long time, without any inilance to the 
 contrary , the criminal feems to condemn 
 himfeif. 
 
 All
 
 CRIMES AND PUNISHMENTS. 53 
 
 All trials mould be public, that opi- 
 nion, which is the heft, or perhaps, the 
 only cement of fociety, may curb the au- 
 thority of the powerful, and the paffions 
 of the judge ; and that the people may 
 fay, " We are protected by the laws ; we 
 " are not Haves :" a fentiment which in- 
 fpires courage, and which is the beft tri- 
 bute to a fovereign, who knows his real 
 intereft. I (hall not enter into particu- 
 lars. There may be fome perfons who 
 expect that I mould fay all that can be 
 faid upon this fubject ; to fuch, what *I 
 have already written muft be unintel- 
 ligible. 
 
 CHAP. XV. 
 
 Of Jeer et Accufatlons . 
 
 SECRET accufations are a manifeft 
 abufe, but confecrated by cuftom in 
 many nations, where, from the weaknefs 
 of the government, they are necenary. 
 This cuftom makes men falfe and treache- 
 rous. Whoever fufpecls another to be an 
 
 E 3 in ~
 
 54 AN ESSAY ON 
 
 informer, beholds in him -an enemy - y and 
 from thence, mankind are accuflomed to 
 difguife their real fentiments ; and from 
 the habit of concealing them from others, 
 they at laft even hide them from them- 
 felves. Unhappy are thofe, who have ar- 
 rive at this point ! Without any certain 
 and fixed principles to guide them, they 
 fluctuate in the vaft fea of opinion, and are 
 buried only in efcaping the monflers which 
 furround them ; to thofe, the prefent is 
 always embittered by the uncertainty of 
 the future ; deprived of the pleafures of 
 tranquillity and fecurity, fome fleeting mo- 
 ments of happinefs, fcattered thinly through 
 their wretched lives, confole them for the 
 mifery of exifHng. Shall we, amongft fuch 
 men, iind intrepid foldiers, to defend their 
 king and country ? Amongft fuch men, 
 (hall we find incorruptible magistrates, who, 
 with the fpirit of freedom and patriotic 
 eloquence, "will fupport and explain the 
 true intereft of their fevereign ; who, with 
 the tributes, offer up at the throne the love 
 •and bleffing of the people, and thus befcow 
 p.i the palaces of the great and the humble 
 
 cottage,
 
 CRIMES AND PUNISHMENTS. $$ 
 
 cottage, peace and fecuri ty, and to the in- 
 duftrious a profpect of bettering their lot, 
 that ufeful ferment and vital principle of 
 ftates ? 
 
 Who can defend himfelf from calumny, 
 armed with that impenetrable fhield of 
 tyranny, fecrecy ? What a miferable go- 
 vernment muft. that be, where the fovereign 
 fuipects an enemy in every fubjecl: ; and 
 to fecure the tranquillity of the public, is 
 obliged to facrirlce the repofe ef every in- 
 dividual •? 
 
 By what arguments is it pretended, that 
 fecret accufations may be juftified ! The 
 public fafety, fay they, and the fecurity 
 and maintenance of the eftablifhed form of 
 government. But what a ftrange confti- 
 tution is that, where the government, which 
 hath in its favour not only power, but opi- 
 nion, frill more efficacious, yet fears its 
 own fubjecTis ? The indemnity of the infor- 
 mer. Do not the laws defend him fuffi- 
 ciently ; and are there fubjects more power- 
 ful than the laws ? The necejjity of protecting 
 
 E 4 ' the
 
 56 ANESSAYON 
 
 the informer from infamy. Then fecret ca- 
 lumny is authorifed, and punimed only 
 when public. The nature of the crime. If 
 actions, indifferent in themfelves, or even, 
 ufeful to the public, were called crimes, 
 both the accufation and the trial could 
 never be too fecret. But can there be any 
 crime, committed againfl the public, which 
 ought not to be publicly punimed ? I re- 
 fpz& all governments ; and I fpeak not of 
 any one in particular. Such may fome- 
 times, be the nature of circumftances, that 
 when abufes are inherent in the eonftitu-s 
 tion, it may be imagined, that to rectify 
 them would be to deftroy the conftitution 
 itfelf, But were I to dictate new laws in 
 a remote corner of the univerfe, the good 
 of posterity, ever prefent to my mind, 
 would hold back my trembling hand, and 
 prevent me from authorizing fecret accu- 
 t". I ions. 
 
 P u E L I c accusations, fays Moutefquieu, 
 
 are more conformable to the nature of a 
 
 epublic, where zeal for the public good is. 
 
 pa] paflion of a citizen, than of a 
 
 .monarchy, 
 
 !
 
 CRIMES AND PUNISHMENTS. 57 
 
 monarchy, in which, as this fentiment is 
 very feeble, from the nature of the govern- 
 ment, the beft eftablifhmetit is that of com* 
 mijjioners, who, in the name of the public, 
 accufe the infractors of the laws. But in all 
 governments, as well in a republic as in a 
 monarchy, the puniihment, due to the 
 crime of which one accufes another, ought 
 to be inflicted on the informer. 
 
 CHAP. XVI, 
 
 Of Torture, 
 
 THE torture of a criminal, during the 
 courfe of his trial, is a cruelty con- 
 fecjated by cuftom in mod: nations. It is 
 ufed with an intent either to make him con- 
 fefs his crime, or explain fome contradic- 
 tions, into which he had been led during 
 his examination ; or difcover his accom- 
 plices j or for fome kind of metaphyfical 
 and incomprehenfible purgation of infamy ; 
 or, finally, in order to difcover other crimes, 
 of which he is not accufed, but of which 
 he may be guilty. 
 
 No
 
 5 
 
 S AN ESSAY ON 
 
 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 on which it was granted. What 
 right then, but that of power, can autho- 
 rize the punifhment of a citizen, fo long as 
 there remains any doubt of his guilt ? This 
 dilemma is frequent. Either he is guilty, 
 or not guilty. If guilty, he mould only 
 fufFer the punishment ordained by the laws, 
 and torture becomes ufelefs, as his confef- 
 fion is unneceffary. If he be not guilty, 
 you torture the innocent ; for in the eye 
 of the law, every man is innocent, „whofe 
 crime has not been proved. Befides, it is 
 confounding all relations, to expect that a 
 man mould be both the accufer and accufed; 
 and that pain mould be the teft of truth, as 
 if truth redded in the mufcles and fibres of 
 a wretch in torture. By this method, the 
 robufb will efcape, and th.Q feeble be con- 
 demned. Theie are the inconveniences of 
 is pretended tell of truth, worthy only of 
 a cannibal; and which the Romans, in 
 refpectsj barbarous, and whole lavage 
 
 virtue
 
 CRIMES AND PUNISHMENTS. 59 
 
 virtue has been too much admired, referved 
 for the flaves alone. 
 
 What is the political intention of pu- 
 nifhments ? To terrify, and be an exam- 
 ple to others. Is this intention anfwered, 
 by thus privately torturing the guilty and 
 the innocent ? It is doubtlefs of import- 
 ance, that no crime mould remain un- 
 punifhed -, but it is ufelefs to make a pub- 
 lic 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 puniflied by a political fociety, 
 with an intention, that no hopes of impu- 
 nity mould induce others to commit the 
 fame. If it be true, that the number of 
 thofe, who from fear or virtue refpecl the 
 laws, is greater than of thofe by whom they 
 are violated, the rifle of torturing an inno- 
 cent perfon is greater, as there is a greater 
 probability, that, cateris paribus, an indi- 
 vidual hath obferved, than that he hath in- 
 fringed the laws. 
 
 Ther e
 
 6o ANESSAYON 
 
 There is another ridiculous motive for 
 torture, namely, to purge a man from in- 
 famy. Ought fuch an abufe to be tole- 
 rated in the eighteenth century ? Can pain, 
 which is a fenfatioh, have any connexion 
 with a moral fentiment, a matter of opi- 
 nion ? Perhaps the rack may be conndered 
 as the refiner's furnace. 
 
 It is not difficult to trace this fenfelefs 
 law to its origin ; for an abfurdity, adopt- 
 ed by a whole nation, muff, have fome af- 
 finity with other ideas, eftablifhed and re- 
 flected by the fame nation. This cuftora 
 feems to be the offspring of religion, by 
 which mankind, in all nations, and in all 
 ages, are fo generally influenced. We are 
 taught by our infallible church, that thofe 
 ffouns of 'fin, contracted through human 
 frailty, and which have not deferved the 
 eternal anger of the Almighty, are to be 
 [ urged away, in another life, by an in-* 
 comprehenfibie fire. Now infamy is a 
 I .::'!, dnd if the Dimifh merits and lire of 
 purgatory can take away all fpiritual ftains, 
 tvfiy ■ Id not the pain of torture take 
 
 away '
 
 CRIMES AND PUNISHMENTS. 6l 
 
 away thoic of a civil nature ? I imagine, 
 that the confeflion of a criminal, which in 
 fome tribunals is required, as being eilen- 
 tial to his condemnation, has a limilar 
 origin, and has been taken from the myi- 
 terious tribunal of penitence, where the 
 confeflion of fins is a neceffary part of the 
 facrament. Thus have men abufed the un- 
 erring light of revelation - y and in the times 
 of tractable ignorance, having no other, 
 they naturally had recourfe to it on every 
 occafion, making the moft remote and ab- 
 furd applications. Moreover, infamy is a 
 fentiment regulated neither by the laws nor 
 by reafon, but entirely by opinion. But 
 torture renders the victim infamous, and 
 therefore cannot take infamy away. 
 
 Another intention of torture is, to 
 oblige the fappofed criminal to reconcile 
 the contradictions into which he may have 
 fallen, during his examination ; as if the 
 dread of punimment, the uncertainty of his 
 fate, the folemnity of the court, the ma- 
 jelly of the judge, and the ignorance of the 
 accufed, were not abundantly fufficient to 
 
 account
 
 62 AN ESSAY ON 
 
 account for contradictions, which are fc 
 common to men, even in a flate of tran- 
 quillity; and which muft neceffarily be mul- 
 tiplied by the perturbation of the mind of 
 a man, entirely engaged in the thoughts of 
 faving himfelf from imminent danger. 
 
 This infamous terr. of truth is a remain- 
 ing monument of that ancient and favage 
 
 legislation, in which trials by fire, by boil- 
 ing water, or the uncertainty of combats, 
 were called 'Judgments of God ; as if the 
 links of that eternal chain, whole begin- 
 ning is in the breaft of the firfl caufe of all 
 things, could ever be difunited by the infti- 
 tutions of men. The only difference be- 
 tween torture, and trials by fire and boiling 
 water is, that the event of the firil depends 
 on the will of the accuied ; and of the 
 fecond, on a faci entirely phyfical and ex- 
 ternal : but this difference is apparent only, 
 not real. A man on the rack, in the con- 
 vulfions of torture, has it as little in his 
 power to declare the truth, as in former 
 times, to prevent without fraud the effects- 
 
 of fire or boiling water. 
 
 Every
 
 CRIMES AND PUNISHMENTS. 6% 
 
 Every act of the will is invariably in 
 proportion to the force of the impreflion 
 on our fenfes. The impreffion of pain, 
 then, may increafe to fuch a degree, that 
 occupying the mind entirely, it will com- 
 pel the fufferer to ufe the lhortefr. method 
 of freeing himfelf from torment. His an- 
 fwer, therefore, will be in effect, as necef- 
 fary as that of fire or boiling water ; and 
 he will accufe himfelf of crimes of which 
 he is innocent. So that the very means 
 employed to difKnguim the innocent from 
 the guilty, will moil: effectually deilroy all 
 difference between them. 
 
 It would be fuperfluous to confirm thefe 
 reflections by examples of innocent perform, 
 who, from the agony of torture, have c. n- 
 feffed themfelves guilty : innumerable in- 
 stances may be found in all nations, and 
 in every age. How amazing that mankind 
 have always neglected to draw the natural 
 conclufion ! Lives there a man, who, if he 
 have carried his thoughts ever fo little be- 
 yond the neceffities of life, when he reflects 
 on fuch cruelty., is not tempted to fly from
 
 64 ANES8AYON 
 
 fociety, and return to his natural ftate of 
 independance ? 
 
 The refult of torture, then, is a matter 
 of calculation, and depends on the condi- 
 tion, which differs in every individual, 
 and is in proportion to his ftrength and 
 fenfibility j fo that to difcover truth by this 
 method is a problem, which may be better 
 folved by a mathematician than a judge, 
 and may be thus flated. The force of the 
 mufcles, and the fenfibility of the nerves of 
 an innocent perfon being given, it is re* 
 quired ' to find the degree of pain necefary 
 to 7nake him confefs himfelf guilty of a given 
 trime. 
 
 The examination of the accufed is in- 
 tended to find out the truth ; but if this be 
 difcovered, with fo much difficulty, in the 
 air, gefture, and countenance of a man at 
 eafe, how can it appear in a countenance 
 diftorted by the convuliions of torture. 
 Every violent action deftroys thofe fmall 
 alterations in the features, which fometimes 
 diiclofe the fentiments of the heart. 
 
 These
 
 CRIMES AND PUNISHMENTS* 65 
 
 These truths were known to the Ro- 
 man legiflators, amongft whom, as I have 
 already obferved, flaves only, who were 
 not confidered as citizens, were tortured. 
 They are known to the Englifh, a nation 
 in which the progrefs of fcience, fupe- 
 riority 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 abolifhed. 
 They are known to one of the wifeft 
 monarchs in Europe, who, having feated 
 philofophy on the throne, by his benefi- 
 cent legiflation, has made his fubjec"ts 
 free, though dependant on the laws ; the 
 only freedom that reafonable men can de- 
 iire in the prefent Hate of things. In mort, 
 torture has not been thought necefTary in 
 the laws of armies, compofed chiefly of 
 the dregs of mankind, where its ufe mould 
 feem moft necefTary. Strange phenomenon ! 
 
 that a fet of men, hardened by daughter, 
 and familiar with blood, mould tec!) hu- 
 manity to the ions of peace. 
 
 F I.
 
 66 AN ESSAY ON 
 
 It appears alfo ? that thefe truths were 
 known, though imperfectly, even to thofe 
 by whom torture has been moft frequently 
 practifed ; for a confeffion made during 
 torture is null, if it be net afterwards con- 
 firmed by an oath ; which if the criminal 
 refufes, he is tortured again. Some crvU 
 lians, and fome nations, permit this infa- 
 mous petitio principii to be only three times 
 repeated, and others leave it to the difcre- 
 tion of the judge; therefore of two men 
 equally innocent, or equally guilty, the 
 moil robuft and refolute will be acquitted, 
 and the weaken: and moft pufillanimous 
 will be condemned, in confequence of 
 the following excellent method of reafon- 
 ing, I, the judge, muft find fome one guilty, 
 Wholly who art a Jirong fellow, haft been 
 able to refift the force of torment ; therefore 
 I acquit thee. Thou, being weaker, haft 
 yielded to it ; I therefore condemn thee. I 
 am fenftble that the confeffion, which was 
 , extorted from thee, has no weight ; but if 
 thou deft not co? firm by oath what thou haft 
 flready coup fed, I will have thee tormented 
 (igan. 
 
 A VERY
 
 CRIMES AND PUNISHMENTS. 6/ 
 
 A very ftra'nge, but neceffary, confe- 
 quence of the ufe of torture, is, that the 
 cafe of the innocent is worfe than that of 
 the guilty. With regard to the firft, either 
 he confeffes the crime, which he has not 
 committed, and is condemned ; or he is 
 acquitted, and has furTered a punifhment 
 he did not deferve. On the contrary, the 
 perfon, who is really guilty, has the mofl 
 favourable fide of the queftion ; for if he 
 fupports the torture with firmnefs and re- 
 solution, he is acquitted, and has gained, 
 having exchanged a greater puniihment 
 for a lefs. 
 
 The law, by which torture is autho- 
 rized, fays, Men, be infenjible to pain. Na- 
 ture has indeed given you an irrefijlible felf- 
 love, and an unalienable right offelf-preferva- 
 tion ; but I create in you a contrary fent'nnent, 
 an heroical hatred of yourf elves. I co?nmand 
 you to accufe your/elves, and to declare the 
 truth, midjl the tearing of your flefo, and the 
 dijlocation of your bones. 
 
 F 2 Tor-
 
 68 AN ESSAY ON 
 
 Torture is ufed to difcover, whether 
 the criminal be guilty of other crimes be- 
 fides thofe of which he is accufed ; which 
 is equivalent to the following reafoning. 
 'Thou art guilty of one crime, therefore it is 
 pofjible that thou mayjl have committed a thou- 
 fand others ; but the affair being doubtful, I 
 mujl try it by my criterion of truth. c The 
 laws order thee to be tormented, becaufe thou 
 art guilty, becaufe thou mayjl be guilty, and 
 becaufe I chufe thou floouldjl be guilty \ 
 
 Torture is ufed to make the criminal 
 difcover his accomplices -, but if it has 
 betn demonstrated 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 ac- 
 cufe others? Befides, is itjuft to torment 
 one man for the crime of another ? May 
 not the accomplices be found out by the 
 examination of the witnefTes, or of the 
 criminal ; from the evidence, or from the 
 nature of the crime itfelf ; in fhort, by all 
 the means that have been ufed to prove 
 
 the
 
 CRIMES AND PUNISHMENTS. 69 
 
 the guilt of the prifoner ? The accom- 
 plices commonly fly, when their comrade 
 is taken. The uncertainty of their fate 
 condemns them to perpetual exile, and 
 frees fociety from the danger of further 
 injury ; whilft the punifhment of the cri- 
 minal, by deterring others, anfwers the 
 purpofe for which it was ordained. 
 
 CHAP. XVIL 
 
 Of pecuniary Punifiments. 
 
 THERE was a time when all punimr? 
 ments were pecuniary. The crimes 
 of the fubjects were the inheritance of the 
 prince. An injury done to fociety was a 
 favour to the crown ; and the fovereign 
 and magistrates, thofe guardians of the 
 public fecurity, were interested in the vio- 
 lation of the laws. Crimes were tried at 
 that time, in a court of exchequer, and 
 the caufe became a civil fuit between the 
 perfon accufed and the crown. The ma- 
 gistrate then had other powers than were 
 
 F 3 neceflary
 
 JO AN ESSAY ON 
 
 necefTary for the public welfare, and the 
 criminal fuffered other punifhments than 
 the neceflity of example required. The 
 judge was rather a collector for the crown, 
 an agent for the treafury, than a protector 
 and minifter of the laws. But, according 
 to this fyftem, for a man to confefs him- 
 felf guilty, was to acknowledge himfelf a 
 debtor to the crown ; which was, and is 
 at prefent (the effects continuing after the 
 caufes have ceafed) the intent of all cri- 
 minal caufes. Thus, the criminal who 
 refufes to confefs his crime, though con- 
 victed by the moft undoubted proofs, will 
 fuffer a lefs punimment than if he had con- 
 feffed -, 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 
 confeffion being once obtained, the judge 
 becomes matter of his body, and torments 
 him with a fludied formality, in order to 
 fqueeze out of him all the profit poflible. 
 Confeffion then is allowed to be a con- 
 vincing proof, eipecially when obtained by 
 the force of torture ; at the fame time that 
 
 an 

 
 CRIMES AND PUNISHMENTS; Jl 
 
 art extrajudicial confeffion, when a mart is 
 at eafe and under no apprehenlion, is not 
 fufficient for his condemnation. 
 
 All enquiries, which may fefve to clear 
 up the fact, but which may weaken the 
 pretentions of the crown, are excluded. 
 It was not from companion to the criminal, 
 or from conli derations of humanity, that 
 torments were fometimes fpared, but out 
 of fear of lofing thole rights, which at pre- 
 fent appear chimerical and inconceivable. 
 The judge becomes an enemy to the ac- 
 cufed, 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 fact, 
 but the nature of the crime; he lays fnares 
 to make him convict himfelf ; he fears, 
 left he mould not fucceed in finding him 
 guilty, and left that infallability, which 
 every man arrogates to himfelf, fhould be 
 called in queftion. It is in the power of 
 the magiftrate to determine, what evidence 
 is fufficient to fend a man to prifon $ that 
 he may be proved innocent, he rnuit. firii 
 
 F a. b*
 
 yZ AN ESSAY ON 
 
 be fuppofed guilty. This is what is called 
 an offenfrue profecution ; and fuch are all 
 criminal proceedings, in the eighteenth 
 century, in all parts of our polimed Europe. 
 The true profecution, for information ; that 
 is, an impartial inquiry into the fact, that 
 which reafon prefcribes, which military 
 laws adopt, and which Afiatic defpotifm 
 allow in fuits of one fubjed; againft an- 
 other, is very little practifed in any courts 
 of juftice. What a labyrinth of abfurdities! 
 Abfurdities, which will appear incredible to 
 happier pofterity. The philofopher only 
 will be able to read, in the nature of man, 
 the poffibility of there ever having been 
 fuch a fyftem. 
 
 CHAP. XVIII. 
 
 Of Oaths. 
 
 THERE is a palpable contradiction 
 between the laws and the natural 
 fentiments of mankind, in the cafe of oaths, 
 which are adminiftred to a criminal to make 
 Jiim fpeak the truth, when the contrary 18 
 
 his
 
 CRIMES AND PUNISHMENTS. 73 
 
 his greatefr. intereft. As if a man could 
 think himfelf obliged to contribute to his 
 own deftruction ; and as if, when intereft 
 fpeaks, religion was not generally filent ; 
 religion, which in all ages hath, of all 
 other things, been moft commonly abufed; 
 and indeed, upon what motive mould it be 
 refpecled by the wicked, when it has been 
 thus violated by thofe who were efteemed 
 the wifeft of men ? The motives which 
 religion oppofes to the fear of impending 
 evil, and the love of life, are too weak, as 
 they are too diftant, to make any impref- 
 fion on the fenfes. The affairs of the other 
 world are regulated by laws intirely diffe- 
 rent from thofe by which human affairs are 
 directed ; why then fhould you endeavour 
 to compromiie matters between them ? 
 Why mould a man be reduced to the ter- 
 rible alternative, either of offending God, 
 or of contributing to his own immediate 
 deflruction ? The laws which require an 
 oath in fuch a cafe, leave him only the 
 choice of becoming a bad chriftian, or a 
 martyr. For this reafon, oaths become, by 
 degrees, a mere formality, and all fenti- 
 
 ments
 
 74 AN ESSAY Ott 
 
 ments of religion, perhaps the only motive 
 of honefty in the greater! part of mankind, 
 are deftroyed. Experience proves their in- 
 utility ; I appeal to every judge, whether 
 he has ever known that an oath alone has 
 brought truth from the lips of a criminal ; 
 and reafon tells us it mint be fo ; for all 
 laws are ufelefs, and in confequence, de- 
 structive, which contradict the natural feel- 
 ings of mankind. Such laws are like a 
 dike oppofed directly to the courfeof a tor- 
 rent j it is either immediately overwhelmed * 
 or, by a whirlpool formed by itlelf, it is 
 gradually undermined and deftroyed. 
 
 CHAP. XIX. 
 
 Of the Advantage of immediate Punifhment. 
 
 THE more immediately after the com- 
 miffion of a crime, a punifhment is. 
 inflicted, the morejufr. and ufeful it will 
 be. It will be more juft* becaufe it fpares 
 the criminal the cruel and fuperfluous tor- 
 ment of uncertainty, which increafes in 
 
 proportion
 
 CRIMES AND PUNISHMENTS. 75 
 
 proportion to the ftrength of his imagina- 
 tion and the fenfe of his weaknefs ; and 
 becaufe the privation of liberty, being a 
 puniihment, ought to be inflicted before 
 condemnation, but for as fliort a time as 
 poffible. Imprifonment, I fay, being only 
 the means of fecuring the perfon of the 
 accufed, until he be tried, condemned, or 
 acquitted, ought not only to be of as fliort 
 duration, but attended with as little feverity 
 as pofiible. The time mould be deter- 
 mined by the neceffary preparation for the 
 trial, and the right of priority in the oldefr 
 prifoners. The confinement ought not to 
 be clofer than is requilite to prevent his 
 flight, or his concealing the proofs o£ the 
 crime ; and the trial mould be conducted 
 with all pofiible expedition. Can there be 
 a more cruel contraft than that between 
 the indolence of a judge, and the painful 
 anxiety of the accufed ; the comforts and 
 pleafures of an infeniible magiftrate, and 
 the filth and mifery of the prifoner ? In 
 general, as I have before obferved, The de- 
 gree of the punijhment, and the confluences 
 of a crime, ought to he jo contrived, as t o
 
 j6 AN ESSAY ON 
 
 have the great eft pojjible effedt on others, 
 with the leaft pojjible pain to the delinquent. 
 If there be any fociety in which this is not 
 a fundamental principle, it is an unlawful 
 fociety; for mankind, by their union, ori- 
 ginally intended to fubject themfelves to the 
 lean: evils poflible. 
 
 An immediate punifhment is more ufe- 
 ful ; becaufe the fmaller the interval of time 
 between the punifhment and the crime, the 
 itronger and more lafting will be the affo- 
 ciation of the two ideas of Crime and 
 Punifhment', fo that they may be confi- 
 dered, one as the caufe, and the other as 
 the unavoidable and necefTary effect. It is 
 demonftrated, that the affociation of ideas 
 is the cement which unites the fabric of the 
 'human intellect ; without which, pleafure 
 and pain would be fimple and ineffectual 
 fenlations. The vulgar, that is, all men, 
 who have no general ideas, or univerfal 
 principles, act in confequence of the mofr. 
 immediate and familiar aflbciations ; but 
 the more remote and complex only prefent 
 tljcmfelves to the minds of thofe who are 
 
 paffionately
 
 CRIMES AND PUNISHMENTS. JJ 
 
 paffionately attached to a fingle object ; or 
 to thofe of greater underftpnding, who 
 have acquired an habit of rapidly com- 
 paring together a number of objects, and 
 of forming a conclusion ; and the refult, 
 that is, the action in confequence, by 
 thefe means, becomes lefs dangerous and 
 uncertain. 
 
 It is, then, of the greateft importance, 
 that the punifhment fhould fucceed the 
 crime as immediately as poflible, if we 
 intend, that in the rude minds of the mul- 
 titude, the feducing picture of the advan- 
 tage arifing from the crime, mould inftantly 
 awake the attendant idea of punifhment. 
 Delaying the punifhment ferves only to 
 feparate thefe two ideas ; and thus affects 
 the minds of the fpectators rather as being 
 a terrible fight, than the neceflary confe- 
 quence of a crime j the horror of which 
 mould contribute to heighten the idea of 
 the punifhment. 
 
 There is another excellent method oi 
 ftrengthening this important connexion 
 
 between
 
 7S AN ESSAY ON 
 
 between the ideas of crime and punish- 
 ment ; that is, to make the punifhment 
 as analogous as poffible to the nature of 
 the crime ; in order that the punifhment 
 may lead the mind to confider the crime 
 in a different point of view, from that, in 
 which it was placed by the flattering idea 
 of promifed advantages. 
 
 Crimes of lefs importance are com- 
 monly punifhed, either in the obfcurity 
 of a prifon, or the criminal is tranfported, 
 to give, by his flavery, an example to fo- 
 cieties. which he never offended ; an exam- 
 ple abfolutely ufelefs, becaufe diftant from 
 the place where the crime was committed. 
 Men do not, in general, commit great 
 crimes deliberately, but rather in a fudden 
 gufr. of pafiion ; and they commonly look 
 en the punifhment due to a great crime as 
 remote and improbable. The public pu- 
 niihment, therefore, of fmall crimes, will 
 make a greater impreflion, and, by deter- 
 i-ng men from the fmaller, will effectually 
 prevent the greater. 
 
 CHAP,
 
 CRIMES AND PUNISHMENTS. 79 
 
 CHAP. XX. 
 
 Of Aft s ofViohice. 
 
 SOME crimes relate to per/on, others to 
 property. The firn: ought to be punifh- 
 ed corporally. The great and rich mould 
 by no means have it in their power to fet a 
 price on the fecurity of the weak and indi- 
 gent ; for then, riches, which under the 
 protection of the laws, are the reward of 
 induftry, would become the aliment of ty-* 
 ranny. Liberty is at an end, whenever the 
 Jaws permit, that, in certain cafes, a man 
 may ceafe to be a per/on, and become a thing. 
 Then will the powerful employ their ad- 
 drefs, to felect from the various combina- 
 tions of civil fociety, all that is in their own 
 favour. This is that magic art which trans- 
 forms fubjecls into beafts of burthen, and 
 which, in the hands of the ftrong, is the 
 chain that binds the weak and incautious. 
 Thus it is, that in fome governments, where 
 there is all the appearance of liberty, tyranny 
 lies concealed, and insinuates itfelf into fome 
 
 neglected
 
 So ANESSAYON 
 
 neglecled corner of the conititution, where 
 it gathers flrength infenfibly. Mankind 
 generally oppofe, with refolution, the af- 
 f aults of barefaced and open tyranny ; but 
 difregard the little infeclthat gnaws through 
 the dike, and opens a fure, though fecret 
 paflage to inundation.' 
 
 CHAP. XXI. 
 
 Of the Piinijlrment of the Nobles. 
 
 *|iT HAT puniihments fhall be ordained 
 V \ for the nobles, whofe privileges 
 make fo great a part of the laws of nations ? 
 I do not mean to enquire whether the 
 hereditary diftinction between nobles and 
 commoners be ufcful in any government, 
 or necerlary in a monarchy $ or whether it 
 be true, that they form an intermediate 
 power, of me in moderating the exceiles 
 of both extremes j or whether they be not 
 rather ilaves to their own body, and to 
 others, confining within a very iinall circle 
 the natural effects and hopes of induftry, 
 like thofe little fruitful fpots, Scattered here 
 
 and
 
 CRIMES AND PUNISHMENTS. 8l 
 
 &nd there in the fandy defarts of Arabia ; 
 or whether it be true, that a fubordination 
 of rank and condition is inevitable, or uie- 
 ful in fociety ; and if fo, whether this 
 fubordination fhould not rather fublift be- 
 tween individuals, than particular bodies ; 
 whether it fhould not rather circulate 
 through the whole body politic, than be 
 confined to one part ; and rather than be 
 perpetual, fhould it not be inceffantly pro- 
 duced and deftroyed. Be thefe as they may, 
 I aflert that the punifhment of a nobleman 
 fhould in no wife differ from that of the 
 lowefk member of fociety. 
 
 Every lawful diftindtion, either in ho- 
 nours or riches, fuppofes previous equality, 
 founded on the laws, on which all the 
 members of fociety are confidered as being 
 equally dependant. We mould fuppofe 
 that men, in renouncing their natural def- 
 potifm, faid, the wifeji and mofi indiijlrious 
 among us fljould obtain the greateji honours > 
 and his dignity flail defcend to his pojlcrity. 
 The fortunate and happy , may hope far 
 greater honours, but let him not therefore be 
 
 G )efs
 
 #2 AN ESSAY ON 
 
 lefs afraid) than others, of violating thofe 
 conditions on which he is exalted. It is true 
 indeed that no fneh decrees were ever made 
 in a general diet of mankind, but they 
 exift in the invariable relations of things > 
 nor do they deftroy the advantages, which 
 are ilippofed to be produced by the clafs of 
 nobles, but prevent the inconveniences; and 
 they make the laws refpectable by deftroy- 
 ing all hopes of impunity. 
 
 It may be objected*, that the fame 
 puhifliment inflicted on a nobleman and 
 a plebeian, becomes really different from 
 the difference of their education, and 
 from the infamy it reflects on an illuftri- 
 ous family; but I anfwer, that punifhments 
 are to be eftirrtated, not by the fenfibility 
 of the criminal, but by the injury done to 
 fociety ; 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 fenfibility, which differs 
 in every individual. The infamy of an 
 innocent family may be eafily obliterated 
 
 by
 
 CRIMES AND PUNISHMENTS. 83 
 
 by Tome public demcnftration of favour 
 from the fovereign ; and forms have al- 
 ways more influence than reafon on the 
 gazing multitude. 
 
 CHAP. XXII. 
 
 Of Robbery. 
 
 THE punifhment of robbery, not ac- 
 companied with violence, fhould be 
 pecuniary. He who endeavours to enrich 
 himfelf with the property of another, mould 
 be deprived of part of his own. But this 
 crime, alas ! is commonly the effect, of 
 mifery and defpair ; the crime of that un- 
 happy part of mankind, to whom the right 
 of exclulive property (a terrible, and per- 
 haps unneceffary right) has left but a bare 
 exiftence. Befides,as pecuniary punimments 
 may increafe the number of robbers, by 
 mcreafing the number of poor, and may 
 deprive an innocent family of fubfiftence, 
 the mod proper punifhment will be that 
 kind of ilavery, which alone can be called 
 iuit; that is., which makes the fociety, for a 
 
 G 2 time.
 
 8 4 AN ESSAY ON 
 
 time, abfolute matter of the perfon, and 
 labour of the criminal, in order to oblige 
 him to repair, by this dependance, the 
 unjuft defpotifm he ufurped over the pro- 
 perty of another, and his violation of the 
 focial compacV 
 
 When robbery is attended with violence, 
 corporal punifhment mould be added to 
 slavery: Many writers have fhewn the 
 evident difqrder which muft arife from not 
 diftinguiming the punifhment due to rob- 
 bery with violence, and that due to theft 
 or robbery committed with dexterity, ab- 
 furdly making a fum of money equivalent 
 to a man's life, But it can never be fuper- 
 f]uous to repeat again and again, thofe truths 
 of which mankind have not profited ; for 
 political machines preferve their motion 
 much longer than others, and receive a new 
 impqlfe with more difficulty. Thefe crimes 
 a;*e in their nature abfolutely different, and 
 t,his axiom is as certain in politics, as in ma- 
 thematics, that between qualities of diffe- 
 rent natures, there can be no flmilitude. 
 
 CHAP.
 
 CRIMES AND PUNISHMENT! 8$ 
 
 CHAP. XXIII. 
 
 Of Infamy , con/idered as a Punijlment, 
 
 THOSE inj uries, which affecl the 
 honour, that is, that juft portion of 
 efteem, which every citizen has a right 
 to expect from others, mould be punimed 
 with infamy. Infamy is a mark of the 
 public difapprobation, which deprives the 
 object of all confideration in the eyes of 
 his fellow citizens, of the confidence of 
 his country, and of that fraternity which 
 exifls between members of the/ame focie- 
 ty. This is not always in the power of the 
 laws. It is neceiTary that the infamy in- 
 flicted by the laws mould be the fame with 
 that which refults from the relations of 
 things, from univerfal morality, or from 
 that particular fyftem* adopted by the na- 
 tion, and the laws* which governs the opi- 
 nion of the vulgar. If, on the contrary, 
 one be different from the other, either the 
 laws will no longer be refpecled, or the 
 received notions of morality and probity
 
 $6 AN ESSAY ON 
 
 will vanifh in fpight of the declamations 
 of moralifts, which are always too weak to 
 refill the force of example. If we declare 
 thofe actions infamous, which are in them- 
 felves indifferent, we leffen the infamy of 
 thofe which are really infamous. 
 
 The punifhment of infamy mould not 
 be too frequent, for the power of opinion 
 grows weaker by repetition ; nor mould it 
 be inflicted on a number of perfons at the 
 fame time, for the infamy of many refolves 
 itielf into the infamy of none. 
 
 Painfvl and corporal punifhments 
 mould never be applied to fanaticifm ; for 
 being founded on pride, it glories in per- 
 fection. Infamy and ridicule only fhould 
 be employed againfr, fanatics : if the nrfl, 
 their pride will be over- balanced by the 
 pride of the people; and we may judge 
 of the power of the fecond, if we confi- 
 der that even truth is obliged to fummon 
 all her force, when attacked by error 
 armed with ridicule. Thus by oppofing 
 ne namon to another, and opinion to 
 
 opinion.
 
 CRIMES AND PUNISHMENTS. S7 
 
 opinion, a wife legiflator puts an end to 
 the admiration of the populace, occafioned 
 by a falfe principle, the original abfurdity 
 of which is veiled by fome well -deduced 
 confequences. 
 
 This is the method to avoid confound- 
 ing the immutable relations of things, or 
 opposing nature, whofe actions not being 
 limited by time, but operating incerTantly, 
 overturn and deftroy all thofe vain regula- 
 tions, which contradict her laws. It is not 
 only in the fine arts, that the imitation of 
 nature is the fundamental principle - y it is 
 the fame in found policy, which is no other 
 than the art of uniting, and directing to 
 the fame end, the natural and immutable 
 fentiments of mankind. 
 
 £ H A P, XXIV. 
 
 Of Idlenefs. 
 
 A Wise government will not fuffer, in 
 the midil of labour and induftry, 
 that kind of political idlenefs, which is 
 
 G 4. con-
 
 88 AN ESSAY ON 
 
 confounded, by rigid declaimers, with the 
 ieifure attending riches acquired by in- 
 duftry, which is of ufe to an increafing fo- 
 ciety, 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 continually 
 accumulate, but never fpend - y who are re- 
 verenced by the vulgar with ftupid admi- 
 ration, and regarded by the wife with dif- 
 dain -, who, being victims to a monaftic 
 life, and deprived of all incitement to that 
 aclivity which is necelfary to preferve, or 
 increaie its comforts, devote all their vi- 
 gour to parllons of the ftrongeft kind, the 
 paffions of opinion. I call not him idle, 
 who enjoys the fruits of the virtues, or 
 vices, of his anceflors, and in exchange for 
 his pleafures, fapports the induftrious poor. 
 It is not then the narrow virtue of auflere 
 tnoralifls, but the laws, that mould deter- 
 mine, what fpecies of idlcnefs deferves pu- 
 niihment. 
 
 CHAP.
 
 CRIMES AND PUNISHMENTS. 
 
 CHAP. XXV. 
 
 Of Banifhment, and Conffcation. 
 
 TE who difturbs the public tranquillity, 
 JlJL who does not obey the laws, who 
 violates the conditions on which men 
 mutually fupport and defend each other, 
 ought to be excluded from fociety, that is, 
 baniihed. 
 
 It feems, as if banifhment mould be 
 the puniihment of thofe, who being accufed 
 of an atrocious crime, are probably, but 
 not certainly, guilty. For this pur- 
 pofe would be required a law, the leair 
 arbitrary, and the moil precife pofiible ; 
 which mould condemn to banifhment, 
 thofe who have reduced the community 
 to the fatal alternative, either of fearing 
 or punifhing them unjuftly; ftill, however, 
 leaving them the facred right of proving 
 their innocence. The reafons ought to 
 be flronger for banishing a citizen, than 
 
 a ftrafiger,
 
 £0 AN E S S A Y ON 
 
 a ftranger, and for the firft. accufation, than 
 for one who hath been often accufed. 
 
 Should the perfon, who is excluded 
 for ever from fociety, be deprived of his 
 property ? This queftion may be confi- 
 dered in different lights. The confifcation 
 of effects, added to banifhment, is a 
 greater punifhment, than banifhment alone ; 
 there ought then to be fome cafes, in 
 which, according to the crime, either the 
 whole fortune mould be confifcated, or 
 part only, or none at all. The whole 
 Should be forfeited, when the law, which 
 ordains banifhment, declares at the fame 
 time, that all connexions, or relations, 
 between the fociety and the criminal, are 
 annihilated. In this cafe, the citizen dies; 
 the man only remains, and with refpect 
 to a political body, the death of the 
 citizen mould have the fame confequences 
 with the death of the man. It feems to 
 Follow then, that in this cafe, the effects 
 of the criminal mould devolve to his 
 lawful heirs. But it is not on account 
 of refinement that I disapprove of 
 
 confiscations,
 
 CRIMES AND PUNISHMENTS. 91 
 
 confifcations. If fome have infifted, that 
 they were a reftraint to vengeance, and 
 the violence of particulars, they have not 
 reflected, that though punifhments be 
 productive of good, they are not, on that 
 account, more juft; to be juft, they 
 muft be necefTary. Even an ufeful in- 
 juflice can never be allowed by a legi- 
 ' flator, who means to guard againft watch- 
 ful tyranny; which, under the flatter- 
 ing pretext of momentary advantages, 
 would eftabliih permanent principles of 
 deftruction, and to procure the eafe of a 
 few in a high ftation, would draw tears 
 from thoufands of the poor. 
 
 The law which ordains confifcations, 
 fets a price on the head of the fubject, 
 with the guilty puniihes the innocent, 
 and by reducing them to indigence and 
 defpair, tempts them to become criminal. 
 Can there be a more melancholy fpectacle, 
 than a whole familv, overwhelmed with 
 infamy and mifery, from the crime of 
 their chief? a crime, which if it had been 
 po0ible, they were retrained from pre- 
 i '•' venting,
 
 t/2 A N E S S A Y N 
 
 venting, by that fubmiffion which the law;* 
 themfelves have ordained. 
 
 CHAP. XXVI. 
 
 Of the Spirit of Family in States. 
 
 IT is remarkable, that many fatal acts 
 of injuftice have been authorifed and 
 approved, even by the wifelt. and moft 
 experienced men, in the freeft republics. 
 This has been owing to their having 
 coriiidered the flate, rather as a fociety 
 of families, than of men. Let us fuppofe 
 a nation compofed of an hundred thoufand 
 men, divided into twenty thoufand families 
 of live perfons each, including the head 
 or mailer of the family, its representative. 
 If it be an afTociation of families, there' 
 will be twenty thoufand ?nen, and eighty 
 thoufand flaves ; if of men, there will 
 be an hundred thoufand citizens, and not 
 one flave. In the firfr. cafe, we behold 
 a republic, and twenty thoufand little 
 monarchies, of which the heads are the 
 
 fovereigns j
 
 CRIMES AND PUNISHMENTS. 93 
 
 Sovereigns ; in the fecond, the fpirit of 
 liberty will not only breathe in every public 
 place of the city, and in the afTemblics of the 
 nation, but in private houfes, where men 
 find the greateft part of their happinefs or 
 mifery. As laws and cuftoms are always 
 the effect: cf the habitual fentiments of the 
 members of a republic, if the fociety be an 
 affociation of the heads of families, the fpi- 
 rit of monarchy will gradually make its way 
 into the republic itfelf, as its effects will only 
 be retrained by the oppofite interefts of 
 each, and not by an univerfal fpirit of li- 
 berty and equality. The private fpirit of 
 family is a fpirit of minutenefs, and con- 
 fined to little concerns. Public fpirit, on 
 the contrary, is influenced by general prin- 
 ciples, and from facts deduces general rules 
 of utility 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 his death for an exiftence de- 
 pendant on the laws alone. Accuftomed 
 \o kneel and tremble in their tender years, 
 
 when
 
 ^4 AN ESSAY ON 
 
 when their natural fentiments wefe lefs 
 retrained by that caution, obtained by 
 experience, whieh is called moderation, 
 how mould they refill thofe obftacles, 
 which vice always oppofes to virtue, in the 
 languor and decline of age, when the 
 defpair of reaping the fruits is alone 
 fufficicnt to damp the vigour of their re- 
 folutions ? 
 
 In a republic, where every man is a 
 citizen, family fubordination is not the 
 effect of compulfion, but of contrail: ; and 
 the fons difengaged from the natural 
 dependance, which the weaknefs of infancy 
 and the neceffity of education required, 
 become free members of fociety, but 
 remain fubjecl 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 mojft numerous, and 
 moll ufeful part of the nation, are at the 
 difcretion of their fathers : in a republic 
 of men, they are attached to their parents 
 
 by
 
 CRIMES AND PUNISHMENTS. 95 
 
 by no other obligation, than that facred 
 and inviolable one of mutual ailiftanee, 
 and of gratitude for the benefits they 
 have received -> a fentiment, deltroyed not 
 fo much by the wickednefs of the human 
 heart, as by a miftaken fubjeclion, pre- 
 fcribed by the laws. 
 
 These contradictions between the laws 
 of families, and the fundamental laws of 
 a ftate, are the fource of many others 
 between public and private morality, which 
 produce a perpetual conflict, in the mind. 
 Domeflic morality infpires fubmiillon, and 
 fear : the other, courage and liberty. That 
 inftructs a man to confine his beneficence to 
 a fmall number of perlbns, net of his own 
 choice -, this, to extend it to all mankind ; 
 that commands a continual facrifice of 
 himfelf to a vain idol, called the good of the 
 family, which is often no real good to any 
 one of thofe who compofe it ; this teaches 
 him to conhder his own advantage without 
 offending the laws, or excites him to facrifice 
 himfelf for the good of his country, by 
 rewarding him beforehand with the fana- 
 tic! iin
 
 96 AN ESSAY ON 
 
 ?icifm it infpires. Such contradictions are 
 the reafon, that men neglectthe purfuit of 
 virtue, which they can hardly diftinguiiTi 
 midft the obfcurity and confufion of natural 
 and moral objects. How frequently are 
 men, upon a retrofpection of their actions, 
 aflonifhed to find themfelves difhoneft ? 
 
 In proportion to the increafe of fociety, 
 each member becomes a fmaller part of 
 the whole ; and the republican fpirit dimi- 
 nifhes in the fame proportion, if neglected 
 by the laws. Political focieties, like the 
 human body, have their limits circum- 
 fcribed, which they cannot exceed without 
 difturbing their ceconomy. It feems as if 
 thegreatnefs of aftate ought to be inverfely 
 as the fenfibility and activity of the indivi- 
 duals ; if on the contrary, population and 
 activity increafe in the fame proportion, 
 the laws will with difficulty prevent the 
 crimes ariiing from the good they have 
 produced. An overgrown republic can 
 only be faved from defpotifm, by fub- 
 dividing it into a number of confederate 
 republics. But how is this practicable? By a 
 
 defpotic
 
 Crimes and punishments. 97 
 
 defpotic dictator, who, with the courage of 
 SylLiy has as much genius for building up, as 
 that Roman had for pulling down. If 
 he be ah ambitious man, His reward will, 
 be immortal glory ; if a philofopher, the 
 bleffings of his fellow-citizens will fuffici- 
 ently confole him for the lofs of authority* 
 though he mould not be infenfible to their 
 ingratitude. 
 
 In proportion as the fentiments, which 
 unite us to the ftate, grow weaker, thofe 
 which attach us to the objects which more 
 immediately furround us, grow ftronger ; 
 therefore, in the moil defpotic government, 
 friendships are more durable, and domeftic 
 virtues (which are always of the loweft 
 clafs) are the melt common, or the only 
 Virtues exifting, Hence it appears how 
 confined have been the views of the greateft 
 timber of leeiilators. 
 
 H CH A I\
 
 98 A N E S S A Y O N 
 
 CHAP. XXVII. 
 
 Of the Mildnefs of Punijhments. 
 
 1 | ^HE courfe of my ideas has carried me 
 Jt away from my fubjec~t, to the eluci- 
 dation of which I now return. Crimes are 
 more effectually prevented by the certainty, 
 than the fever ity of punifhment. Hence 
 in a magiftrate, the neceffity of vigilance, 
 and in a judge, of implacability, which, 
 that it may become an ufeful virtue, 
 mould be joined to a mild legislation. 
 The certainty of a fmall punifhment will 
 make a ftronger impreffion, than the fear 
 of one more fevere, if attended with the 
 hopes of elcaping ; for it is the nature of 
 mankind to be terrified at the approach 
 of the fmailefl inevitable evil, whilil hope, 
 the belt gift of heaven, hath the power 
 of difpelling the apprehenfion of a greater ; 
 efpecially if fupported by examples of im- 
 punity, which weaknefs or avarice too fre- 
 quently afford. 
 
 If
 
 CRIMES AND PUNISHMENTS. 99 
 
 If punifhments be very fevere, men 
 are naturally led to the perpetration of other 
 crimes, to avoid the punifhment due to 
 the firft. The countries and times moil 
 notorious for feverity of punifhments, were 
 always thofe in which the moft bloody 
 and inhuman actions and the moft atrocious 
 crimes were committed; for the hand of 
 the legiflator and the affaffin were directed 
 by the fame fpirit of ferocity ; which, on 
 the throne, dictated laws of iron to Haves 
 and favages, and, in private, inftigated 
 the fubject to facrifice one tyrant to make 
 room for another, 
 
 In proportion as punifhments become 
 more cruel, the minds of men, as a fluid 
 rifes to the fame height with that which 
 furrounds it, grow hardened and infenfible; 
 and the force of the paflions ftill conti- 
 nuing, in the fpace of an hundred years, 
 the wheel terrifies no more than formerly 
 the prifon. That a punifhment may pro- 
 duce the effect required, it is fufficient that 
 the foil it occafions fhould exceed the 
 good expected from the crime; including 
 
 H 2 in
 
 J CO AN £ S S A Y O N 
 
 in the calculation the certainty of the 
 puniihment, and the privation of the 
 expe&ed advantage. All feverity beyond 
 this is fuperfluous, and therefore tyran- 
 nical. 
 
 * 
 
 Men regulate thef* conduct by the 
 repeated imprerlion of evils they know, 
 3nd not by thole with which they are 
 unacquainted. Let us, for example, fup- 
 oofe two nations, in one of which the 
 greatefl punilhment is perpetual Jlavery> 
 and in the other the wheel. I fay, that 
 both will infpire the fame degree of terror ; 
 and that there can be no reafons for 
 increaling the punifhments of the nrft ; 
 which are not equally valid for augmenting 
 thofe of the fecond to more lading and 
 more ingenious modes of tormenting; 
 and fo on to the mod exquiiite refinements 
 of a fcience too well known to tyrants. 
 
 There are yet two other confequences 
 of cruel punifhments, which counter-acl 
 the purpofe of their institution, which 
 was, to prevent crimes. The Jirjl arifes 
 
 from
 
 CRIMES AND PUNISHMENTS. JOI 
 
 from the impombility of eftablifhing art 
 exaft proportion between the crime and 
 pu.nihment, for though ingenious cruelty 
 hath greatly multiplied the variety of 
 torments, yet the human frame can fuffer 
 only to a certain degree, beyond which it 
 is impomble 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 good. 
 ExcefTive barbarity can never be more 
 than temporary; it being impoiTible that 
 jt mould be fupported by a permanent 
 fyftem of legiflation ; for if the laws be 
 too cruel they mult be altered, or anarchy 
 and impunity will fucceed, 
 
 j~ . 
 
 Is ij( pomble, without fhuddering with 
 
 horror, to read in hiftory of the barbarous 
 and ufelefs torments that were coolly in- 
 vented and executed by men who were 
 called fages ? Who does not tremble at 
 the thoughts of thoufands of wretches, 
 whom their mifery, either caufed or 
 tolerated by the laws, which favoured the 
 few and outraged the many, had forced 
 
 H 3 In
 
 10Z AN E S S A Y ON 
 
 in defpair to return to a Hate of nature ; 
 or accufed of imporlible crimes, the fabric 
 of ignorance and iuperftition ; or guilty 
 only of having been faithful to their own 
 principles ; who, I fay, can, without 
 horror, think of their being torn to pieces 
 with flow and ftudied barbarity, by men 
 endowed with the lame paflions and the 
 fame feelings ? A delightful fpectacle to a 
 fanatic multitude ! 
 
 C H A P. XXVIII, 
 
 Of the Punifimeut of Death* 
 
 ' | ^HE ufelefs profuiion of puniihments > 
 A which has never made men better, 
 induces me to enquire, whether the punifh- 
 ment of death be really juil or ufeful in a 
 well governed Hate ? What right, I afk, 
 have men to cut the throats of their fqllow- 
 creatures ? Certainly not that on which 
 the. Sovereignty and laws are founded. 
 The laws, as I have fiid before, are only 
 fhe fum of the imalleit portions of the 
 
 private
 
 CRIMES AND PUNISHMENTS. IO3 
 
 private liberty of each individual, and 
 reprefent the general will, which is the 
 aggregate of that of each individual. Did 
 . any one ever give to others the right of 
 taking away his life r Is it pofiible, that 
 in the fmallefl portions of the liberty of 
 each, facrificed to the good of the public, 
 can be contained the greateft of all good, 
 life ? If it were fo, how mall it be recon- 
 ciled to the maxim which tells us, that a 
 man has no right to kill himfelf ? Which 
 he certainly muft have, if he could give it 
 away to another. 
 
 But the puniihment of death is not au- 
 thorifed by any right ; for I have demon- 
 ftrated that no fuch ri^ht exilrs. It is 
 therefore a war of a whole nation a^ainll: 
 a citizen, whofe destruction they coniider 
 as necefTary, or ufeful to the general good. 
 But if I can further demonstrate, that if 
 is neither necefTary nor ufeful, I (hall have 
 gained the caufe of humanity. 
 
 The death of a citizen cannot be ne- 
 eflfary, but in one cafe. When, thoiij 
 
 1 1 4 depri 1
 
 1 04 AN ESSAY ON 
 
 deprived of his liberty, he has fuch power 
 and connexions as may endanger the 
 fecurity of the nation ; when his exiftence 
 may produce a dangerous revolution in the 
 eftablifhed form of government. But even 
 in this cafe, it can' only be neceffary when 
 a nation is on the verge of recovering or 
 lofing its liberty ; or in times of abfolute 
 anarchy, when the diforders themfelves 
 hold the place of laws. But in a reign of 
 tranquillity ; in a form of government ap- 
 proved by the united wiflies of the nation ; 
 in a ftate well fortified from enemies 
 without, and fupported by ftxength within, 
 and opinion, perhaps more efficacious ; 
 where all power is lodged in the hands of 
 a true fovcreign ; where riches can pur- 
 chafe plcafures and not authority, there 
 can be no neceiiity for taking away the life 
 of a fubjecl. 
 
 If the experience of all ages be not fuf- 
 flcient to prove, that the puniihment of 
 death has never prevented determined men 
 from injuring fociety ; if the example of 
 the Romans j if twenty years reign of 
 
 EHzalpel
 
 CRIMES AND PUNISHMENTS. I05 
 
 Elizabeth, emprefs of Ruffia, in which 
 /he gave the fathers of their country an 
 example more illuftrious than many con- 
 quefls bought with blood j if, I fay, all 
 this be not furiicient to perfuade mankind, 
 who always fufpect the voice of reafon, 
 and who chufe rather to be led by authority, 
 let us confult human nature in proof cf my 
 affertion. 
 
 It is not the intenfenefs of the pain 
 that has the greateft effect, on the mind, 
 but its continuance ; for our feniibility is 
 more eafily and more powerfully affected 
 by weak but repeated imprefiions, than by 
 a violent, but momentary, impulfe. The 
 power of habit is univerfal over every fen- 
 iible being. As it is by that we learn to 
 fpeak, to walk, and to fatisfy our neceffi- 
 ties, fo the ideas of morality are ftamped 
 on our minds by repeated impreffions. 
 The death of a criminal is a terrible but 
 momentary fpectacle, and therefore a lefs 
 efficacious method of deterring others, 
 than the continued example of a man de- 
 prived of his liberty, condemned, as a 
 
 beaft
 
 106 AN ESSAY ON 
 
 Deaf! of burthen, to repair, by his labour, 
 the injury he has done to fociety. If I 
 commit fuch a crime y fays the Ipectator to 
 himfeif, / (Jjall be reduced to that miferable 
 condition for the reft of my life. A much 
 inore powerful preventive than the fear of 
 death, which men always behold in diftant 
 obfcurity. 
 
 The terrors of death make fo flight 
 an imprerlion, that it has not force enough 
 to withftand the forgetfulnefs natural to 
 mankind, even in the moft. enential things; 
 efpecially when affifted by the pafhons. 
 Violent impreffions furprize us, but their 
 effect is momentary; they are fit to pro- 
 duce thofe revolutions which inflantly 
 transform a common man into a Lacede- 
 monian or a Periian ; but in a free and quiet 
 
 >vernment they ought to be rather frequent 
 than ftrong. 
 
 • The execution of a criminal is, to the 
 multitude, a fpeclacle, which in fome 
 excites compafiion mixed with indig- 
 nation. Thefe fentiments occupy tl 
 
 mind
 
 CRIMES AND PUNISHMENTS. I OJ 
 
 mind much more than that falutary terror 
 which the laws endeavour to infpire; but 
 in the contemplation of continued fufFer- 
 ing, terror is the only, or a leaft pre- 
 dominant fenfation. The feverity of a 
 puniihment mould be juft fufficient to 
 excite companion in the fpeclators, as it 
 is intended more for them than for the 
 criminal. 
 
 A punishment, to be juft, mould 
 have only that degree of feverity which is 
 fufficient to deter others. Now there is 
 no man, who upon the leaft reflection, 
 would put in competition the total and 
 perpetual lofs of his liberty, with the 
 greateff. advantages he could poffibly ob- 
 tain in confequence of a crime. Perpe- 
 tual ilavery, then, has in it all that is 
 necefTary to deter the moft hardened and 
 determined, as much as the puniihment 
 of death. I fay it has more. There are 
 many who can look upon death with in- 
 trepidity and firmnefs ; fome through 
 fanaticifm, and others through vanity, 
 which attends us even to the grave ; others 
 
 from
 
 I08 AN ESSAY ON 
 
 from a defperate refolution, 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 
 beginning than the end of their mifery. 
 The mind, by collecting itfelf and uniting 
 all its force, can, for a moment, repel 
 affailing grief; but its moft vigorous 
 efforts are infufficient to refill perpetual 
 wretchednefs. 
 
 In all nations, where death is ufed as 
 a punifhment, every example fuppofes a 
 new crime committed. Whereas in per- 
 petual flavery, every criminal affords a 
 frequent and lading example ; and if it be 
 neceffary that men mould often be wit- 
 nefies of the power of the laws, criminals 
 mould often be put to death; but this 
 fuppofes a frequency of crimes ; and from 
 hence this punifhment will ceafe to have 
 its efFedt, fo that it muft be ufeful and ufe- 
 leis at the fame time. 
 
 I SIIALJ,
 
 CRIMES AND PUNISHMENTS. 1 09 
 
 I shall be told, that perpetual flavery 
 is as painful a punifhment as death, and 
 therefore as cruel. I anfwer, that if all 
 the miferable moments in the life of a 
 flave were collected into one point, it 
 would be a more cruel punimment than 
 any other ; but thefe are fcattered through 
 his whole life, whilft the pain of death 
 exerts all its force in a moment. There 
 is alfo another advantage in the punifh- 
 ment of flavery, which is, that it is more 
 terrible to the fpeclator than to the fuf- 
 ferer himfelf; for the fpectator confiders 
 the fum of all his wretched moments, 
 whilfl the fufFerer, by the mifery of the 
 prefent, is prevented from thinking of the 
 future. All evils are increafed by the 
 imagination, and the fufferer finds re- 
 fources and confolations, of which the 
 fpectators are ignorant ; who judge by 
 their own fenfibility of what paffes in a 
 mind, by habit grown callous to misfor- 
 tune. 
 
 Let us, for a moment, attend to the 
 reafoning of a robber or afiaflin, who is 
 
 deterred.
 
 110 A N E S S A Y O N 
 
 deterred from violating the laws by the 
 gibbet or the wheel. I am fenfible, that 
 to develop the fentiments of one'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, they neverthelefs influence his 
 conducl. He reafons thus. " What are 
 " thefe laws, that I am bound to refpect, 
 " which make fo great a difference be- 
 <c tween me and the rich man ? He re- 
 " fufes me the farthing I afk of him, and 
 " excufes himfelf, by bidding me have 
 " recourfe to labour with which he is 
 (C unacquainted. Who made thefe laws ? 
 " The rich and the great, who never 
 " deigned to vifit the miferable hut of 
 the poor ; who have never feen him 
 dividing a piece of mouldly bread, amidit 
 " the cries of his famifhed children and 
 " the tears of his wife. Let us break thofe 
 " ties, fatal to the greateR- part of man- 
 " kind, and only ufeful to a few indolent 
 " tyrants. Let us attack injuftice at its 
 " fource. I will return to my natural 
 " ftate of independance, I fliall live free 
 
 " and 
 
 tc
 
 CRIMES AND PUNISHMENTS. Ill 
 
 " and happy on the fruits of my courage 
 M and induftry. A day of pain and re- 
 " pentance may come, but it will be 
 *' fhort ; and for an hour of grief I mall 
 " enjoy years of pleafure and liberty. 
 " King of a fmall number, as determined 
 ** as myfelf, I will correct the miflakes 
 * f of fortune; and I mall fee thofe tyrants 
 " grow pale and tremble at the light of 
 " him, whom, with infulting pride, they 
 " would not fuffer to rank with their dogs 
 '* and horfes." 
 
 Religion then prefents itfelf to the 
 mind of this lawlefs villain, and promifinp- 
 him almoft a certainty of eternal happinefs 
 upon the eaiy terms of repentance, contri- 
 butes much to leflen the horror of the lafl 
 fcene of the tragedy. 
 
 But he who foreiees, that he mufl pafs 
 a great number of years, even his whole 
 life, in pain and flavery; a flavc to thole 
 laws by which he was protected ; in fight 
 of his fellow citizens, with whom he live 
 in freedom- and fociety; makes an ufefuj 
 
 companion
 
 112 AN ESS A VON 
 
 comparifon between thofe evils, the uncer- 
 tainty of his fuccefs, and the fhortnefs of 
 the time in which he ihall enjoy the fruits 
 of his tranfgrefiion. The example of 
 thofe wretches continually before his eyes, 
 makes a much greater impreffion on him 
 than a punimment, which, inftead of cor- 
 recting, makes him more obdurate. 
 
 The punifnnient of death is pernicious 
 to fociety, from the example of barbarity 
 it affords. If the paffions, or the neceffity 
 of war, have taught men to lhed the blood 
 of their fellow creatures, the laws, which 
 are intended to moderate the ferocity of 
 mankind, mould not increafe it by ex- 
 amples of barbarity, the more horrible, as 
 this punimment is ufually attended with 
 formal pageantry. Is it not ablurd, that 
 the laws, which deteit and puniih homi- 
 cide, mould, in order to prevent murder, 
 publicly commit murder themfelves ? What 
 are the true and moil ufeful laws ? Thofe 
 compacts and conditions which all would 
 propofe and obferve, in thofe moments 
 when private intereft is filent, or com- 
 bined
 
 CRIMES AND PUNISHMENTS. II3 
 
 bined with that of the public. What are 
 the natural fentiments of every perfon 
 concerning the punifhment of death ? We 
 may read them in the contempt and indig- 
 nation with which every one looks on the 
 executioner, who is neverthelefs an inno- 
 cent executor of the public will ; a good 
 citizen, who contributes to the advantage 
 of fociety; the inftrument of the general 
 fecurity within, as good foldiers are with- 
 out. What then is the origin of this con- 
 tradiction ? Why is this fentiment of man- 
 kind indelible, to the fcandal of reafon ? 
 It is, that in a fecret corner of the mind, in 
 which the original impremons of nature 
 are frill preferved, men difcover a fenti- 
 ment which tells them, that their lives are 
 not lawfully in the power of any one, but 
 of that neceflity only, which with its iron 
 fcepter rules the univerfe. 
 
 What muft men think, when thev fee 
 wife maturates and grave tninifters of 
 juftice, with indifference and tranquillity, 
 dragging a criminal to death, and whilll 
 a wretch trembles with agony, expecting 
 
 I the
 
 114 AN ESSAY ON 
 
 the fatal ftroke, the judge, who has con" 
 demned him, with the coldeft infenfibility, 
 and perhaps with no fmall gratification 
 from the exertion of his authority, quits 
 his tribunal to enjoy the comforts and 
 pleafures of life ? They will fay, " Ah ! 
 " thofe cruel formalities of juftice are 
 " a cloak to tyranny, they are a fecret 
 " language, a folemn veil, intended to 
 " conceal the fword by which we are facri- 
 " ficed to the infatiable idol of defpotifm. 
 " Murder, which they would reprefent 
 "to us as an horrible crime, we fee 
 " praclifed by them without repugnance, 
 '.' or remorfe. Let us follow their ex- 
 " ample. A violent death appeared ter- 
 " rible in their defcriptions, but we fee 
 " that it is the affair of a moment. It 
 " will be jftlll lefs terrible to him, who 
 " not expecting it, efcapes almoft. all the 
 '« pain." Such is the fatal, though ab- 
 furd reafoning of men who are dilpofed 
 to commit crimes -, on whom, the abufe 
 of religion has more influence than reli- 
 gion itfelf. 
 
 If
 
 CRIMES AND PUNISHMENTS. 1 1 J 
 
 If it be obje&ed, that almofr. all na- 
 tions in all ages have punifhed certain 
 crimes with death, I anfwer, that the 
 force of thefe examples vanimes, when 
 oppofed to truth, againft which prefcrip- 
 tion 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 found. 
 
 But human facrifices have alfo been 
 common in almoft. all nations. That 
 fome focieties only, either few in number, 
 or for a very fhort time, abftained from 
 the punifhment of death, is rather favour- 
 able to my argument, for fuch is the fate 
 of great truths, that their duration is only 
 as a flam of lightning in the long and dark 
 night of error. The happy time is not 
 yet arrived, when truth, as falfhood has 
 been hitherto, (hall be the portion of the 
 greateft number. 
 
 I am fenfible that the voice of one 
 philoibpher is too weak to be heard amidft 
 the clamours of a multitude, blindly in- 
 
 I 2 fluenced
 
 Il6 AN ESSAY ON 
 
 fluenced by cuftom -, but there 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 thefe 
 truths mould haply force their way to 
 the thrones of princes, be it known to 
 them, that they come attended with the 
 fecret wifhes of all mankind; and tell 
 the fovereign who deigns them a gracious 
 reception, that his fame mall outfhine 
 the glory of conquerors, and that equitable 
 pofterity will exalt his peaceful trophies 
 above thofe of a Titus, an Antoninus, or a 
 Trajan. 
 
 How happy were mankind, if laws 
 were now to be firft formed ; now that we 
 fee on the thrones of Europe, benevolent 
 monarchs, friends to the virtues of peace, 
 to the arts and fciences, fathers of their 
 people, though crowned yet citizens -, the 
 increafe of whofe authority augments the 
 happinefs of their fubjects, by deftroying 
 that intermediate defpotifm, which inter- 
 cepts the prayers of the people, to the 
 throne. If thefe humane princes have 
 
 fuffered
 
 CRIMES AND PUNISHMENTS. TIJ 
 
 fuffered the old laws to fubfift, it is doubt- 
 lefs becaufe they are deterred by the num- 
 berleis obstacles, which oppofe the fub- 
 verlion of errors eflablifhed by the fanction 
 of many ages ; and therefore every wife citi- 
 zen will wifh for the increafe of their 
 authority. 
 
 CHAP. XXIX, 
 
 Of Imprifonment. 
 
 THAT a magistrate, the executor of the 
 laws, mould have a power to impri- 
 fon a citizen, to deprive the man he hates 
 of his liberty upon frivolous pretences, 
 and to leave his friend unpunished, not- 
 withstanding the SlrongeSl proofs of his 
 guilt, is an error, as common, as it is con- 
 trary to the end of fociety, which is perfo- 
 nal fecurity. 
 
 Imprisonment is a punishment, which 
 differs from all others in this particular, 
 
 I 3 that
 
 Il8 AN ESSAY-ON 
 
 that it necefTarily precedes conviction ; 
 but this difference does not dertroy a 
 circumftance, which is effential and com- 
 mon to it with all other punifliments, 
 viz. that it mould never be inflicted, but 
 when ordained by the law. The law 
 mould therefore determine the crime, the 
 prefumption, and the evidence fufficient 
 to fubject the accufed to imprifonment 
 and examination. Public report, his 
 flight, his extrajudicial confeflion, that 
 of an accomplice, menaces, and his con- 
 ftant enmity with the perfon injured, 
 the circumflances of the crime, and 
 fuch other evidence, may be fufHcient to 
 juftify the imprifonment of a citizen. But 
 the nature of this evidence mould be de- 
 termined by the laws, and not by the 
 magiflrates, whofe decrees are always 
 contrary to political liberty, when they 
 are not particular applications of a ge- 
 neral maxim of the public code. When 
 punifliments become lefs fevere, and pri- 
 fons lefs horrible; when companion and 
 humanity mall penetrate the iron gates 
 of dungeons, and direct the obdurate and 
 
 inex-
 
 CRIMES AND PUNISHMENTS. 119 
 
 inexorable minifters of juflice, the laws 
 may then be fatisfied with weaker evidence 
 for imprilbnment. 
 
 A person accufed, imprifoned, tried, 
 and acquitted, ought not to be branded 
 with any degree of infamy. Among the 
 Romans, we fee that many, accufed of 
 very great crimes and afterwards de- 
 clared innocent, were refpected by the 
 people, and honoured with employments 
 in the flate. But why is the fate of an 
 innocent perfon fo different in this age ? 
 It is, becaufe the prefent fyftem of 
 penal laws prefents to our minds an 
 idea of power rather than of juftice. It 
 is, becaufe the accufed and convicted are 
 thrown indifcriminately into the fame 
 prifon; becaufe imprifonment is rather 
 a punifhment, than a means of fecuring 
 the perfon of the accufed ; and becaufe 
 the interior power, which defends the 
 laws, and the exterior, which defends the 
 throne and kingdom, are feparate, when 
 they mould be united. If the firfr. were 
 (under the common authority of the laws) 
 
 I 4 com-
 
 120 AN ESSAY ON 
 
 combined with the right of judging, but 
 not however immediately dependant on 
 the magistrate, 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 mi- 
 litary imprifonment, which, in the com- 
 mon opinion, is not fo difgraceful as the 
 civil. But the barbarity and ferocity of 
 our anceilors, the hunters of the North, 
 ftill fublift among the people, in our 
 cuftoms and our laws, which are always 
 feveral ages behind the actual refinements 
 of a nation. 
 
 CHAP. XXX. 
 
 Of Prof edition and Prefcription. 
 
 9 mS HE proofs of the crime being obtain- 
 JL ed, and the certainty of it determi- 
 ned, it is neceffary to allow the criminal 
 time and means for his j unification -, but a 
 time fo mort, as not to diminifh that 
 promptitude of punimment, which, as we 
 
 have
 
 CRIMES AND PUNISHMENTS. 121 
 
 have fhewn, is one of the moft powerful 
 means of preventing crimes. A miftaken 
 humanity may object to the fhortnefs of 
 the time, but the force of the objection 
 will vanifh, if we confider that the danger 
 of the innocent increafes with the defects 
 of the legiflation. 
 
 The time for enquiry and for j unifi- 
 cation mould be fixed by the laws, and 
 not by the judge, who, in that cafe, 
 would become legiilator. With regard 
 to atrocious crimes, which are long re- 
 membered, when they are once proved, 
 if the criminal have fled, no time mould 
 be allowed ; but in lefs confiderable and 
 more obfcure crimes, a time mould be 
 fixed, after which the delinquent mould be 
 no longer uncertain of his fate. For in the 
 latter cafe, the length of time, in which 
 the crime is almoft forgotten, prevents the 
 example of impunity, and allows the cri- 
 minal to amend, and become a better mem- 
 ber of fociety. 
 
 General
 
 122 AN E S S A Y ON 
 
 General principles will here be fuf- 
 ficient, it being impoflible to fix precifely 
 the limits of time for any given legifla- 
 tion, or for any {ocicty in any particular 
 circurnftance. I mall only add, that in 
 a nation willing to prove the utility of 
 moderate puniihment, laws, which, ac- 
 cording to the nature of the crime, in- 
 creafe or diminiih the time of enquiry 
 and juftification, confidering the impri- 
 fonment or the voluntary exile of the 
 criminal as a part of the puniihment, will 
 form an eafy divilion of a fmall number 
 of mild punifhments for a great number of 
 crimes. 
 
 But, it muft be obferved, the time 
 for inquiry and juftification mould not in- 
 creafe in direct proportion to the atroci- 
 oufnefs of crimes ; for the probability of 
 fuch crimes having been committed, is in- 
 verfely as their atrocioufnefs. Therefore 
 the time for inquiry, ought in fome cafes 
 to be diminifhed, and that for juftification 
 ibcreaibd, & vice ver/a. This may appear 
 
 to
 
 CRIMES AND PUNISHMENTS. 123 
 
 to contradict what I have laid above, name- 
 ly, that equal punifhments may be decreed 
 for unequal crimes, by considering the 
 time allowed the criminal, or the prifon as 
 a punifhment. 
 
 In order to explain this idea, I mall 
 divide crimes into two claries. The rrrfr. 
 comprehends homicide, and all greater 
 crimes ; the fecond, crimes of an inferior 
 degree. This difUndtion is founded in 
 human nature. The prefervation of life 
 is a natural right ; the prefervation of 
 property is a right of fociety. The mo- 
 tives that induce men to make off the 
 natural fentiment of companion, which 
 muft be deftroyed before great crimes can 
 be committed, are much lefs in number 
 than thofe, by which, from the natural 
 defire of being happy, they are instigated 
 to violate a right, which is not founded 
 in the heart of man, but is the work of 
 fociety. The different degrees of proba- 
 bility in thefe two claries, requires that 
 they mould be regulated on different 
 principles. In the greater!: crimes, as they 
 
 are
 
 124 AN ESSAY ON 
 
 are lefs frequent, and the probability of 
 the innocence of the accufed being greater, 
 the time allowed him for his juftiflcation 
 mould be greater, and the time of enquiry 
 lefs. For by haflening the definitive fen- 
 tence, 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 mould be greater, and 
 that of j unification lefs, as impunity is not 
 fo dangerous. 
 
 But this divifion of crimes into two 
 claffes mould not be admitted, if the 
 confequences of impunity were in pro- 
 portion to the probability of the crime. It 
 mould be confidered, that a perfon accufed, 
 whole guilt or innocence is not determined 
 for want of proofs, may be again impri- 
 foned for the fame crime, and be fubject to 
 a new trial, if freih evidence arifes, within 
 the time fixed. 
 
 This
 
 CRIMES AND PUNISHMENTS. 125 
 
 This is in my opinion the bell method 
 of providing, at the lame time, for the 
 fecurity and liberty of the fubject, without 
 favouring one at the expence of the other ; 
 which may eafily happen, fince both thefe 
 bleffings, the inalienable and equal patri- 
 mony of every citizen, are liable to be 
 invaded, the one by open or difguifed def- 
 potifm, and the other by tumultuous and 
 popular anarchy. 
 
 CHAP. XXXI. 
 
 Of Crimes of difficult Proof 
 
 WITH the foregoing principles in 
 view, it will appear allonilhing, 
 that reaibn hardly ever prefided at the for- 
 mation of the laws of nations 3 that the 
 weaker! and moll equivocal evidence, and 
 even conjectures, have been thought fuffi- 
 cient proof for crimes the moft atrocious, 
 (and therefore moll improbable) the moll 
 obfcure and chimerical ; as if it were the 
 interefl of the laws and the judge not to 
 
 inquire
 
 2 26 AN ESSAY Off 
 
 inquire into the truth, but to prove the 
 crime -, as if there were not a greater rifk of 
 condemning an innocent perfon, when the 
 probability of his guilt is lefs. 
 
 The generality of men want that vi- 
 gour of mind, and refolution, which are as" 
 neceiTary for great crimes, as for great vir- 
 tues ; and which at the fame time produce 
 both the one and the other in thofe nati- 
 ons, which are fupported by the activity 
 of their government, and a paffion for the 
 public good. For in thofe which fubfifl 
 by their greatnefs or power, or by the 
 goodnefs of their laws, the paflions being 
 in a weaker degree, feem calculated rather 
 to maintain than to improve the form of 
 government. This naturally leads us to an 
 important conclulion, viz. that great crimes 
 do not always produce the deftruction of a 
 nation. 
 
 There are fome crimes, which, though 
 frequent in fociety, are of difficult proof, 
 a circumftance admitted, as equal to the 
 probability of the innocence of the accufed. 
 
 But
 
 CRIMES AND PUNISHMENTS. 
 
 I27 
 
 But as the frequency of thefe crimes is not 
 owing to their impunity, fo much as to 
 other caufes, the danger of their pafling 
 unpunished is of lefs importance, and there- 
 fore the time of examination, and prefcrip- 
 tion, may be equally diminifhed. Thefe 
 principles are different from thofe com- 
 monly received ; for it is in crimes, which 
 are proved with the greater! difficulty, fuch 
 as adultery, and fodomy, that prefumpti- 
 ons, half proofs, &c. are admitted ; as if 
 a man could be half innocent, and half 
 guilty ; that is, half punifhable and half ab- 
 folvable. It is in thefe cafes that torture 
 mould exercife its cruel power on the perfon 
 of the accufed, the witnefles, and even his 
 whole family, as, with unfeeling indiffer- 
 ence, fome Civilians have taught who pre- 
 tend to dictate laws to nations. 
 
 Adultery is a crime, which, politi- 
 cally confidered, owes its exigence to two 
 caufes, viz. pernicious laws, and the 
 powerful attraction between the fexes. 
 This attraction is fimilar in many circum- 
 
 flances to gravity, the fpring of motion in 
 
 the
 
 128 AN ESSAY ON 
 
 the univerfe. Like this, it is diminished 
 by diftance; one regulates the motions 
 of the body, the other of the foul. But 
 they differ in one refpect; the force of 
 gravity decreafes in proportion to the 
 obstacles that oppofe it; the other gathers 
 ftrength and vigour as the obftacles in- 
 creafe. 
 
 If I were {peaking 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 conftant and 
 univerfal in 'human nature; a neceffity 
 anterior to the formation of fociety, and 
 indeed the founder of fociety itfelf; 
 whereas all other crimes tend to the de- 
 ftruclion of fociety, and arife from mo- 
 mentary paffions, and not from a natural 
 neceffity. It is the opinion of thofe, who 
 have ftudied hiftory and mankind, that 
 this neceffity is conftantly in the fame de- 
 gree in the fame climate. If this be true, 
 
 ufelefs,
 
 CRIMES AND PUNISHMENTS. 
 
 129 
 
 ufelefs, or rather pernicious muit all laws 
 and cuftoms be, which tend to diminifh the 
 fum total of the effects of this paffion. 
 Such laws would only burden one part of 
 fociety with the additional neceffities of 
 the other ; but, on the contrary, wife are 
 the laws, which, following the natural 
 courfe of the river, divide the ftream into a 
 number of equal branches, preventing thus 
 both flerility and inundation. 
 
 Conjugal fidelity is always greater in 
 proportion as marriages are more nume- 
 rous, and lefs difficult. But when the 
 intereft or pride of families, or paternal 
 authority, not the inclination of the par- 
 ties, unite the fexes, gallantry foon breaks 
 the flender ties, in ipite of common mo- 
 ralifts, who exclaim againft the effect, 
 whilfr. they pardon the caufe. But thefe 
 reflections are ufelefs to thofe, who, living 
 in the true religion, act from fublimer 
 motives, which correct the eternal laws of 
 nature. 
 
 K The
 
 I3O AN ESSAY ON 
 
 The act of adultery is a crime fo inftan- 
 taneous, fo myfterious, and fo concealed 
 by the veil which the laws themfelves have 
 woven ; a veil neceffary indeed, but fo tran- 
 fparent, as to heighten rather than conceal 
 the charms of the object; the opportunities 
 are fo frequent, and the danger of difcovery 
 fo eafily avoided, that it were much eafier 
 for the laws to prevent this crime, than to 
 punifh it when committed. 
 
 • To every crime, which, from its nature 
 muft frequently remain unpunished, the 
 punifhment is an incentive. Such is the 
 nature of the human mind, that difficulties, 
 if not infurmountable, nor too great for 
 our natural indolence, embellifh the ob- 
 ject, and fpur us on to the purfuit. They 
 are fo many barriers that confine the imagi- 
 nation to the object, and oblige us to con- 
 fider it in every point of view. In this 
 agitation, the mind naturally inclines and 
 fixes iiklf to the moil agreeable part, ftudi- 
 ouily avoiding every idea that might create 
 diigufl. 
 
 The
 
 CRIMES AND PUNISHMENTS. I3I 
 
 The crime of fodomy, fo feverely pu- 
 niflied by the laws, and for the proof of 
 which are employed tortures, which often 
 triumph over innocence itfelf, has its 
 fource much lefs in the pallions of man 
 in a free and independant ftate, than in 
 fociety and a Have. It is much lefs the 
 effecT: of a fatiety in pleafures, than of that 
 education, which, in order to make men 
 ufeful to others, begins by making them 
 ufelefs to themfelves. In thofe public fe- 
 minaries, 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 ufelefs to 
 mankind, but which accelerates the ap- 
 proach of old age. 
 
 The murder of baftard-children is, in 
 like manner, the efFeft of a cruel dilemma, 
 in which a woman finds herfelf who has 
 been feduced through weaknefs, or over- 
 come by force. The alternative is, either 
 her own infamy, or the death of a being, 
 who is incapable of feeling the lofs of 
 life. How can (he avoid preferring the 
 
 K 2 laft
 
 I32 AN ESSAY ON 
 
 laft to the inevitable mifery of herfelf and 
 her unhappy infant ? The beft method of 
 preventing this crime, would be effectually 
 to protect the weak woman from that ty- 
 ranny, which exaggerates all vices that 
 cannot be concealed under the cloak of 
 virtue. S 
 
 I do not pretend to leffen that juft ab- 
 horrence which thefe crimes deferve, but 
 to difcover the fources from whence they 
 fpring ; and I think I may draw the follow- 
 ing conclulion : That the punifiment of a 
 crime cannot be jujl> (that is necejfary) if the 
 laws have not endeavoured to prevent that 
 crime by the beft means which times and cir- 
 cumjlances would allow. 
 
 CHAP. XXXII. 
 
 Of Suicide. 
 
 SUICIDE is a crime which feems not 
 to admit of punifhment, properly 
 ipeaking ; for it cannot be inflicted but on 
 
 the
 
 CRIMES AND PUNISHMENTS. 133 
 
 the innocent, or upon an infenfible dead 
 body. In the firft cafe, it is unjuft and 
 tyrannical, for political liberty fuppofes all 
 puni foments entirely perfonal -, m the fe- 
 cond, it has the fame effect, by way of ex- 
 ample, as the fcourging a ftatue. Man- 
 kind love life too well; the objects that 
 furround them ; the feducing phantom of 
 pkufure and hope, that fweeteft error of 
 mortals, which makes men fwallow fuch 
 large draughts of evil, mingled with a very 
 few drops of good, allure them too ftrongly, 
 to apprehend that this crime will ever be 
 common from its unavoidable impunity. 
 The laws are obeyed through fear of punifh- 
 mcnt, but death dehxoys all fenfibility. 
 What motive then can reflrain the defperate 
 hand of fuicide r 
 
 He who kills himfelf does a Iefs injury 
 to fociety, than he who quits his country 
 for ever , for the other leaves his property 
 behind him, but this carries with him at 
 lead a part of his fubftance. Befides, as 
 the ftrength of a fociety confifts in the 
 number of citizens, he who quits one na- 
 
 K 3 tion
 
 134 AN ESSAY ON 
 
 tion to refide in another, becomes a double 
 lofs. This then is the queftion : whether 
 it be advantageous to fociety, that its mem- 
 bers mould enjoy the unlimited privilege of 
 migration ? 
 
 Every law that is not armed with 
 force, or which, from circumftances, muff, 
 be ineffectual, mould not be promulgated. 
 Opinion, which reigns over the minds of 
 men, obeys the flow and indirect impref- 
 fions of the legiflator, but refills them when 
 violently and directly applied; and ufelefs 
 laws communicate their infignificance to the 
 mofr. falutary, which are regarded more 
 as obftacles to be furmounted, than as fafe- 
 guards of the public good. But further, 
 our perceptions being limited, by inforcing 
 the obfervance of laws which are evidently 
 ufelefs, we deftroy the influence of the moll 
 falutary. 
 
 From this principle a wife difpenfer 
 of public happinefs may draw fome ufeful 
 confequences, the explanation of which 
 would carry me too far from my fubject, 
 
 which
 
 CRIMES AND PUNISHMENTS. I35 
 
 which is to prove the inutility of making 
 the nation a prifon. Such a law is vain, 
 becaufe unlefs inacceffible rocks, or im- 
 paflable feas, divide the country from all 
 others, how will it be porlible to fecure 
 every point of the circumference, or how 
 will you guard the guards themfelves ? 
 Befides, this crime once committed, can- 
 not be punifhed ; and to punifh it before- 
 hand, would be to punifh the intention 
 and not the action ; the will, which is 
 entirely out of the power of human laws. 
 To punifh the abfent by confifcating his 
 effects, befides the facility of collufion 
 which would inevitably be the cafe, and 
 which, without tyranny, could not be pre- 
 vented, would put a 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 increafe the 
 defire of removing, and would infallibly 
 prevent Grangers from fettling in the 
 country. 
 
 K4 What
 
 1^6 ANESSAYON 
 
 J 
 
 What muil we think of a government 
 which has no means, but fear, to keep its 
 fubjecls in their own country; to which, 
 by the firft imprefiions of their infancy, 
 they are fo ftrongly attached. The moil 
 certain method of keeping men at home, 
 is, to make them happy ; and it is the in- 
 tereft of every flate to turn the balance, 
 not only of commerce, but of felicity in 
 favour of its fubjects. The pleafures of 
 luxury are not the principal fources of this 
 happinefs ; though, by preventing the too 
 great accumulation of wealth in a few hands, 
 they become a necelfary remedy againft the 
 too great inequality of individuals, which 
 always increafes with the progrefs of 
 fociety. 
 
 When the popuioufnefs of a country 
 does not increafe in proportion to its ex- 
 tent, luxury favours defpotifm, for where 
 men are moil difperfed, there is leail in- 
 dustry ; and where there is leafl induftry, 
 the dependance of the poor upon the lux- 
 ury of the rich is greateft, and the union 
 of the cppreiied againft the opprefibrs is 
 
 leafl
 
 CRIMES AND PUNISHMENTS. 1 37 
 
 lead to be feared. In fuch circumftances, 
 rich and powerful men more eaiily com- 
 mand diftindlion, refpedt and fervice, by 
 
 which they are railed to a greater height 
 above the poor ; for men are more inde- 
 pendant the lefs they are observed, and are 
 leaft obferved when moft numerous. On 
 the contrary, when the number of people 
 is too great in proportion to the extent of 
 a country, luxury is a check to defpotifm ; 
 becaufe it is a fpur to induftry, and be- 
 cause the labour of the poor affords fo many 
 pleasures to the rich, that they difregard the 
 luxury of oftentation, which would remind 
 the people of their dependance. Hence 
 we fee, that in vaft and depopulated ftates, 
 the luxury of oftentation prevails over that 
 of convenience ; but in countries more po- 
 pulous, the luxury of convenience tends 
 conftantly to diminiih the luxury -of orien- 
 tation. 
 
 The plealures of luxury have this in- 
 convenience, that though they employ a 
 great number of hands, yet they are only 
 enjoyed by a few, whilft the reft, who do 
 
 not
 
 I38 AN ESSAY ON 
 
 not partake of them, feel the want more 
 fenfibly, on comparing their ftate with 
 that of others. Security and liberty, re- 
 strained by the laws, are the bafis of hap- 
 pinefs, and when attended by thefe, the 
 pleafures of luxury favour population, 
 without which they become the inftru- 
 ments of tyranny. As the moft noble and 
 generous animals fly to folitude and inac- 
 cerTible deferts, and abandon the fertile 
 plains to man, their greateft enemy -, fo 
 men re j eel pleafure itfelf, when offered by 
 the hand of tyranny. 
 
 But to return. If it be demonstrated, 
 that the laws which imprifon men in their 
 own country are vain and unjuft, it will 
 be equally true of thofe which punifh 
 fuicide, for that can only be punifhed after 
 death; which is in the power of God 
 alone; but it is no crime, with regard to 
 man, becaufe the punifhment falls on an 
 innocent family. If it be objected, that 
 the confederation of fuch a punifTiment 
 may prevent the crime ; I anfwer, that 
 he who can calmly renounce the pleafure 
 
 of
 
 CRIMES AND PUNISHMENTS. I39 
 
 of exiftence; who is fo weary of life, as 
 to brave the idea of eternal mifery, will 
 never be influenced by the more diftant, 
 and lefs powerful confiderations of family, 
 and children. 
 
 CHAP. XXXIII. 
 
 Of Smuggling. 
 
 SMUGGLING is a real offence againfl 
 the fovereign and the nation - y but the 
 punifhment mould not brand the offender 
 with infamy, becaufe this crime is not 
 infamous in the public opinion. By in- 
 flicting infamous punifhments, for crimes 
 that are not reputed lb, we deffroy that 
 idea where it may be ufeful. If the rime 
 punifhment be decreed for killing a phea- 
 fant as for killing a man, or for forgery, 
 all difference between thofe crimes will 
 mortly vanifh. It is thus that moral fen- 
 timents are deftroyed in the heart of man ; 
 fentiments, the work of many ages and 
 of much bloodfhed -, fentiments that are 
 
 fo
 
 140 AN ESSAY ON 
 
 fo flowly, and with fo much difficulty- 
 produced, and for the eflablifhrnent of 
 which inch fublime motives, and fuch 
 an apparatus of ceremonies were thought 
 neceffary. 
 
 This crime is owing to the laws them- 
 felves ; for the higher the duties, the 
 greater is the advantage, and consequently, 
 the temptation ; which temptation is in- 
 creafed by the facility of perpetration, 
 when the circumference that is guarded is 
 of great extent, and the merchandife pro- 
 hibited is fmall in bulk. The feizure and 
 lofs of the goods attempted to be Smuggled, 
 together with thofe that are found along 
 with them, is juftj but it would be better 
 to Iefien the duty, becaufe men rilque 
 only in proportion to the advantage ex- 
 pected. 
 
 This crime being a theft of what be- 
 longs to the prince, and confequentfy, to 
 the nation, why is it not attended with 
 infamy ? I anfwer, that crimes, which 
 men confider as productive of no bad con- 
 
 fequences
 
 CRIMES AND PUNISHMENTS. 141 
 
 fequences to themfelves, do not intereit 
 them fufficiently to excite their indigna- 
 tion. The generality of mankind, upon 
 whom remote confequences make no im- 
 premon, do not fee the evil that may re- 
 fill t from the practice of fmuggling, efpe- 
 cially if they reap from it any preient ad- 
 vantage. They only perceive the lofs fuf- 
 tained by the prince. They are not then 
 interefted in refuting their efteem to the 
 fmuggler, as to one who has committed 
 a theft or a forgery, or other crimes, by 
 which they themfelves may fuifer ; from 
 this evident principle, that a fenfible being 
 only interefts himfelf in thofe evils, witl> 
 which he is acquainted. 
 
 Shall this crime then, committed by 
 one who has nothing to lofe, go unpu- 
 nished ? No. There are certain fpecies of 
 fmuggling, which fo particularly affect the 
 revenue, a part of government fo eflenti^l, 
 and managed with fo much difficulty, that 
 they deferve imprifonment, or even ilavery ;. 
 but yet of fuch a nature as to be propor- 
 tioned
 
 I42 AN ESSAY ON 
 
 tioned to the crime. For example, it would 
 be highly unjufb that a fmuggler of tobacco 
 mould fuffer the fame punimment with a 
 robber, or affarTin ; but it would be molt 
 conformable to the nature of the offence, 
 that the produce of his labour mould be ap- 
 plied to the ufe of the crown, which he 
 intended to defraud. 
 
 CHAP. XXXIV. 
 
 Of Bankrupts. 
 
 THE neceffity of good faith in contracts, 
 and the fupport of commerce, oblige 
 the legiflature to fecure, for the creditors, 
 the perfons of bankrupts. It is, however, 
 necelfary to diftinguim between the fraudu- 
 lent and the honeft bankrupt. The frau- 
 dulent bankrupt mould be punifhed in the 
 fame manner with him who adulterates 
 the coin; for to faliify a piece of coin, 
 which is a pledge of the mutual obliga- 
 tions between citizens, is not a greater 
 
 crime
 
 CRIMES AND PUNISHMENTS. 143 
 
 crime than to violate the obligations them- 
 felves. But the bankrupt who, after a 
 ftricl: examination, has proved before pro- 
 per judges, that either the fraud, or loffes 
 of others, or misfortunes unavoidable by 
 human prudence, have ftript him of his 
 fubftance ; upon what barbarous pretence 
 is he thrown into prifon, and thus deprived 
 of the only remaining good, the melan- 
 choly enjoyment of mere liberty ? Why is 
 he ranked with criminals, and in defpair 
 compelled to repent of his honeity ? Con- 
 fcious of his innocence, he lived eafy and 
 happy under the protection of thofe laws, 
 which, it is true, he violated but not inten- 
 tionally. Laws, dictated by the avarice of 
 the rich, and accepted by the poor, feduced 
 by that univerfal and flattering hope which 
 makes men believe, that all unlucky acci- 
 dents are the lot of others, and the moil 
 fortunate only their mare. Mankind, 
 when influenced by the firft impreflions, 
 love cruel laws, although, being tub j eel: to 
 them themfelves, it is the intereit of every 
 
 J 
 
 perfon that they mould be as mild as pof- 
 rible ; but the fear of being injured is al- 
 ways
 
 144 AN ESSAY ON 
 
 ways more prevalent than the intention of 
 injuring others. 
 
 But to return to the honeft bankrupt. 
 Let his debt, if you will, not be coniidered 
 as cancelled, 'till the payment of the whole ; 
 let him be refufed the liberty of leaving the 
 country without leave of his creditors, or 
 of carrvinp; into another nation that in- 
 duftry, which, under a penalty, he ihould 
 be obliged to employ for their benefit ; 
 but what pretence can juilify the depriving 
 an innocent, though unfortunate man of 
 his liberty, without the leaf! utility to his 
 creditors ? 
 
 But fay they, the hardihips of confine- 
 ment will induce him to difcover his 
 fraudulent tranfactions ; an event, that 
 can hardly be fuppofed, after a rigorous 
 examination of his conduct and affairs. 
 But if they are not difcovered, he will 
 efcape unpunished. It is, I think, a 
 maxim of government, that the impor- 
 tance of the political inconveniences, ari- 
 fing from the impunity of a crime, are 
 
 direcrly
 
 CRIMES AND PUNISHMENTS. I45 
 
 directly as the injury to the publick, and 
 inverfely as the difficulty of proof. 
 
 It will be neceffary to diftinguifh fraud 
 attended with aggravating circumftances 
 from fimple fraud, and that from per- 
 fect innocence. For the firft, let there be 
 ordained the fame punimment as for for- 
 gery ; for the fecond, a lefs punifhment, 
 but with the lofs of liberty j and if per- 
 fectly honeft, let the bankrupt himfelf 
 chufe the method of re-eftablifhing him- 
 felf and of fatisfying his creditors ; or if 
 he mould appear not to have been ftrictly 
 honeft, let that be determined by his cre- 
 ditors. But thefe diftinctions mould be 
 fixed by the laws, which alone are impar- 
 tial, and not by the arbitrary and dange- 
 rous prudence of Judges.* 
 
 With 
 
 * It may be alledged, that the intereft cf commerce 
 and property fhould be fecured ; but commerce and. 
 property are not the end of the focial compact, but 
 the means of obtaining that end; and to expofe all the 
 members of fociety to cruel laws, to preferve them 
 from evils, neceflarily occafioned by the infinite combi- 
 nations which refult from the actual itate of political 
 
 L focieties,
 
 I46 . ANESSAYON 
 
 With what eafe might a fagacious le- 
 giflator prevent the greateft part of frau- 
 dulent bankruptcies, and remedy the mis- 
 fortunes that befall the honeft and induf- 
 trious! A public regifter of all contracts, 
 with the liberty of confulting it allowed 
 to every citizen -, a public fund formed by 
 a contribution of the opulent merchants 
 for the timely amftance of unfortunate in-, 
 duftry, were eftablifriments that could pro- 
 duce no real inconveniences, and many ad- 
 vantages. But unhappily, the moil fimple, 
 the ealieft, yet the wiieft laws, that wait 
 only for the nod of the legiflator, to dif- 
 fufe through nations, wealth, power, and 
 felicity; laws, which would be regarded 
 
 focieties, would be to make the end fubfervient to the 
 means, a paralogifm in all fciences, and particularly in 
 politicks. In the former editions of this work, I myfelf 
 fell into this error, when I faid that the honeft bank- 
 rupt mould be kept in cuftody, as a pledge for his debts, 
 or employed, as a flave, to work for his creditors. I am 
 afhamed of having adopted fo cruel an opinion. I have 
 been accufed of impiety ; I did not deferve it. I have 
 been accufed of fedition ; I deferved it as little. But I 
 infulted all the rights of humanity, and was never re- 
 proached. 
 
 by 

 
 CRIMES AND PUNISHMENTS. I47 
 
 by future generations with eternal grati- 
 tude, are either unknown, or rejected. A 
 reftlefs, and trifling fpirit, the timid pru- 
 dence of the prefent moment, a diftruft 
 and aversion to the moil ufeful novelties, 
 poffefs the minds of thofe who are im- 
 powered to regulate the actions of man- 
 kind. 
 
 CHAP. XXXV. 
 
 Of Sanctuaries. 
 
 ARE fandtuaries juft? Is a convention 
 between nations mutually to give 
 up their criminals, ufeful ? 
 
 In the whole extent of a political ftate, 
 there mould be no place independent of the 
 laws. Their power mould follow every 
 fubject, as the fhadow follows the body. 
 Sanctuaries and impunity differ only in de- 
 gree, and as the effect of punifhments de- 
 pends more on their certainty, than their 
 greatnefs, men are more flrongly invited 
 
 La to
 
 148 AN ESSAY ON 
 
 to crimes by fanctuaries, than they are de- 
 terred by punifhment. To increafe the 
 number of fanctuaries, is to erect fo many 
 little fovereignties ; for, where the laws 
 have no power, new bodies will be form- 
 ed in oppofition to the public good, and a 
 fpirit eftablifhed contrary to that of the 
 flate. Hiftory informs us, that from the ufe 
 of fanctuaries have arifen the greatefl revo- 
 lutions in kingdoms, and in opinions. 
 
 Some have pretended, that in whatever 
 country a crime, that is an action contrary 
 to the laws of fociety, be committed, the 
 criminal may be juftly punifned for it in 
 any other : as if the character of fubject 
 were indelible, or fynonimous with, or 
 worfe than that of Have; as if a man could 
 live in one country, and be fubject to the 
 laws of another, or be accountable for his 
 actions to two fovereigns, or two codes of 
 laws, often contradictory. There are alfo 
 who think, that an act of cruelty com- 
 mitted, for * example, at Conftantinople, 
 may be punimed at Paris; for this ab- 
 ftracted reafon, that he who offends hu- 
 manity,
 
 CRIMES AND PUNISHMENTS. I49 
 
 manity, mould have enemies in all man- 
 kind, and be the object of univerfal exe- 
 cration; as if judges were to be the knights 
 errant of human nature in general, rather 
 than guardians of particular conventions 
 between men. The place of punimment 
 can certainly be no other, than that where 
 the crime was committed ; for the necef- 
 fity of punifhing an individual for the ge- 
 neral good fubfifts 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, may 
 be feared, and by force banifhed and ex- 
 cluded from that fociety; but ought not 
 to be formally punifhed by the laws, which 
 were only intended to maintain the focial 
 compact, and not to punifh the intrinfick 
 malignity of actions. 
 
 Whether it be ufeful that nations 
 mould mutually deliver up their criminals ? 
 Although the certainty of there being no 
 part of the earth where crimes are not pu- 
 nifhed, may be a means of preventing 
 them, I mail not pretend to determine this 
 
 L 3 queftion,
 
 I50 AN ESSAY OH 
 
 quefKon, until laws more conformable to 
 the neceffities and rights of humanity, and 
 until milder punifhments, and the aboli- 
 tion of the arbitrary power of opinion, mail 
 afford fecurity to virtue and innocence 
 when opprefied; and until tyranny mail 
 be confined to the plains of Afia, and Eu- 
 rope acknowledge the univerfal empire of 
 reafon, by which the interefts of fovereigns, 
 and fubjects, are beft united. 
 
 CHAP. XXXVI. 
 
 Of Rewards for apprehending, or killing 
 Criminals, 
 
 IET us now inquire, whether it be 
 J advantageous to fociety, to fet a price 
 on the head of a criminal, and fo to make 
 of every citizen an executioner. If the of- 
 fender hath taken refuge in another ftate, 
 the fovereign encourages his fubjecls to 
 commit a crime, and to expofe themfelves 
 to a juft punifhment; he infults that na- 
 tion
 
 CRIMES AND PUNISHMENTS. I51 
 
 tion, and authorizes the fubjects to com* 
 mit on their neighbours fimilar ufurpa- 
 tions. If the criminal ftill remain in 
 his own country, to fet a price upon his 
 head, is the ilrongeft proof of the weak- 
 nefs of the government. He who has 
 itrength to defend himfelf, will not pur- 
 chafe the aiiiitance of another. Beiides 
 fuch an edict confounds all the ideas of 
 virtue, and morality, already too wavering 
 in the mind of man. At one time 
 treachery is punifhed by the laws, at 
 another encouraged. With one hand the 
 legiilature flrengthens the ties of kindred, 
 and friendiliip, and with the other, re- 
 wards the violation of both. Always in 
 contradiction with himfelf, now he in- 
 vites the flifpecling minds of men to mu- 
 tual confidence, and now he plants diftrufr. 
 in every heart. To prevent one crime, 
 he gives birth to a thoufand. Such are 
 the expedients of weak nations, whoie 
 laws are like temporary repairs to a totter- 
 ing fabrick. On the contrary, as a nation 
 becomes more enlightened, honefty and 
 mutual confidence become more necerlary, 
 
 L 4 and
 
 I52 AN ESSAY ON 
 
 and are daily tending to unite with found 
 policy. Artifice, cabal, and obfcure and 
 indirect actions are more eafily difcovered, 
 and the intereft of the whole is better fe- 
 cured againft thepaffions of the individual. 
 
 Even the times of ignorance, when 
 private virtue was encouraged by publick 
 morality, may afford inftruction and ex- 
 ample to more enlightened ages. But laws, 
 which reward treafon, exite clandeftine 
 war, and mutual diftruft, and oppofe that 
 neceffary union of morality and policy, 
 which is the foundation of happinefs, and 
 univerfal peace. 
 
 CHAP. XXXVII. 
 
 Of Attempts, Accomplices, and Pardon. 
 
 THE laws do not punifh the intention; 
 neverthelefs, an attempt, which ma- 
 nifests the intention of committing a crime, 
 deferves a punifhment; though lefs, per- 
 haps, than if the crime were actually per- 
 petrated.
 
 CRIMES AND PUNISHMENTS. 153 
 
 petrated. The importance of preventing 
 even attempts to commit a crime fuffici- 
 ently authorifes a punifhmentj but as 
 there may be an interval of time between 
 the attempt and the execution, it is pro- 
 per to referve the greater punifhment for 
 the actual commiffion, that even after the 
 attempt there may be a motive for de- 
 fifting. 
 
 In like manner, with regard to the ac- 
 complices, they ought not to fuffer fo fe- 
 vere a punifhment as the immediate per- 
 petrator of the crime. But this for a dif- 
 ferent reafon. When a number of men 
 unite, and run a common riik, the greater 
 the danger, the more they endeavour to 
 diftribute it equally. Now, if the prin- 
 cipals be punifhed more feverely than the 
 acceffaries, it will prevent the danger from 
 being equally divided, and will increafe 
 the difficulty of finding a perfon to exe- 
 cute the crime, as his danger is greater by 
 the difference of the puniihment. There 
 can be but one exception to this rule ; 
 and that is, when the principal receives 
 
 a reward
 
 154 AN ESSAY ON 
 
 a reward from the accomplices. In that 
 cafe, as the difference of the danger is com- 
 penfated, the punifhment mould be equah 
 Thefe reflections may appear too refined 
 to thofe who do not confider, that it is of 
 great importance, that the laws mould 
 leave the arTociates as few means as poffible 
 of agreeing among themfelves. 
 
 In fome tribunals a pardon is offered 
 to an accomplice in a great crime, if he 
 difcover his arTociates. This expedient 
 has its advantages and difadvantages. The 
 difadvantages are, that the law authorifes 
 treachery, which is detefled even by the 
 villains themfelves 5 and introduces crimes 
 of cowardice, which are much more per- 
 nicious to a nation than crimes of courage. 
 Courage is not common, and only wants 
 a benevolent power to direct it to the pub- 
 lic good. Cowardice, on the contrary, 
 is a frequent, felf-interefted and conta- 
 gious 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
 
 CRIMES AND PUNISHMENTS. I55 
 
 by imploring the affiftance of thofe by 
 whom they are violated. 
 
 The advantages are, that it prevents 
 great crimes, the effeds of which being 
 public, and the perpetrators concealed, 
 terrify the people. It alfo contributes to 
 prove, that he who violates the laws, 
 which are public conventions, will alfo 
 violate private compacts. It appears to 
 me, that a general law, promiling a re- 
 ward to every accomplice who difcovers 
 his affociates, would be better than a fpe- 
 cial declaration in every particular cafe ; 
 becaufe it would prevent the union of 
 thofe villains, as it would infpire a mutual 
 diftruft, and each would be afraid of ex- 
 poring himfelf alone to danger. The ac- 
 complice, however, mould be pardoned, 
 
 on condition of tranfportation 
 
 But it is in vain, that I torment myfelf 
 with endeavouring to extinguiih the re- 
 morfe I feel in attempting to induce the 
 facred laws, the monument of publiek 
 confidence, the foundation of human mo- 
 rality, to authorife difTim illation and per- 
 fidy.
 
 1 56 ANESSAYON 
 
 hdy. 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 ftxength of learned fubtleties, and 
 to the fcandal of public faith, drag him to 
 puniihment who hath accepted of their 
 invitation ! Such examples are not un- 
 common, and this is the reafon, that po- 
 litical fociety is regarded as a complex 
 machine, the fprings of which are moved 
 at pleafure by the moft dextrous or mofl 
 powerful. 
 
 CHAP. XXXVIII. 
 
 Of Suggejiive Interrogations, 
 
 f I * HE laws forbid fuggejlive interroga- 
 Jl tions-y that is, according to the civili- 
 ans, quefbions, which, with regard to the 
 circumliances of the crime, zxzjpecial when 
 they mould be general; or, in other words, 
 thofe queftions, which having an imme- 
 diate reference to the crime, fuggefr. to 
 the criminal an immediate anfwer. In- 
 terrogations,
 
 CRIMES AND PUNISHMENTS. 
 
 l 57 
 
 terrogations, according to the law, ought 
 to lead to the fact indirectly and oblique- 
 ly, but never directly or immediately. 
 The intent of this injunction is either, 
 that they mould not fuggeft. to the accufed 
 an immediate anfwer that might acquit 
 him, or that they think it contrary to na- 
 ture that a man mould accufe himfelf. 
 But whatever be the motive, the laws 
 have fallen into a palpable contradiction, 
 in condemning fuggeflive interrogations, 
 whilft they authorife torture. Can there 
 be an interrogation more fuQ-aefKve than 
 pain ? Torture will fuggeft to a robuft 
 villain an obftinate filence, that he may 
 exchange a greater punimment for a lefs ; 
 and to a feeble man confeffion, to relieve 
 him from the prefent pain, which affects 
 him more than the apprehenfion of the 
 future. If a fpecial interrogation be con- 
 trary to the right of nature, as it obliges 
 a man to accufe himfelf, torture will cer- 
 tainly do it more effectually. But men are 
 influenced more by the names than the na- 
 ture of things. 
 
 He,
 
 I58 ANESSAYON 
 
 He, who obftinately refufes to anfwer 
 the interrogatories, deferves a puniihment, 
 which mould be fixed by the laws, and 
 that of the fevereil kind; that criminals 
 mould not, by their filence, evade the 
 example which they owe the public. But 
 this punimment is not necefTary when the 
 guilt of the criminal is indifputable, be- 
 caufe in that cafe interrogation is ufelefs, 
 as is likewife his confeffion, when there 
 are, without it, proofs fufficient. This 
 lall cafe is moft common, for experience 
 mews, that in the greateft number of cri- 
 minal profecutions, the culprit pleads not 
 guilty. 
 
 CHAP. XXXIX. 
 
 Of a particular Kind of Crimes. 
 
 1 
 
 "^ HE reader will perceive, that I have 
 omitted fpeaking of a certain clafs of 
 crimes which has covered Europe with 
 blood, and raifed up thofe horrid piles, 
 
 from
 
 CRIMES AND PUNISHMENTS. 15c) 
 
 from whence, midft clouds of whirling 
 fmoke, the groans of human victims, the 
 crackling of their bones, and the frying of 
 their flill panting bowels, were a pleaiing 
 fpectacle, and agreeable harmony to the 
 fanatic multitude. But men of under- 
 ilanding will perceive, that the age and 
 country, in which I live, will not permit 
 me to inquire into the nature of this 
 crime. It were too tedious, and foreign 
 to my fubject, to prove the necerTity of a 
 perfect uniformity of opinions, in a ilate, 
 contrary to the examples of many nations ; 
 to prove that opinions, which differ from 
 one another only in fome fubtile and ob- 
 fcure diftinctions, beyond the reach of hu- 
 man capacity, may neverthelefs difturb the 
 public tranquillity, unlefs one only reli- 
 gion be eftablifhed by authority ; and that 
 fome opinions, by being contrafted and 
 oppofed to each other, in their collifion 
 ftrike out the truth -, whilft. others, feeble 
 in themfelves, require 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
 
 l60 AN E S S A Y ON 
 
 over the opinions of mankind, from whom 
 it only obtains diffimulation, followed by 
 contempt ; and, although it may feem 
 contrary to the fpirit of humanity and 
 brotherly love, commanded us by reafon, 
 and authority, which we more refpect, it 
 is neverthelefs neceffary and indifpenlible. 
 We are to believe, that all thefe para- 
 doxes are folved beyond a doubt, and are 
 conformable to the true interefts of man- 
 kind, if practifed by a lawful authority. 
 I write only of crimes which 'violate the 
 laws of nature and the focial contract, and 
 not off/is, even the temporal punimments 
 of which muft be determined from other 
 principles, than thofe of limited human 
 philofophy. 
 
 CHAP. XL. 
 
 Of fa Ij e Ideas of Utility. 
 
 A Principal fource of errors and in- 
 juftice, are falfe ideas of utility. For 
 example ; that legiflator has falfe ideas of 
 
 utility,
 
 CRIMES AND PUNISHMENTS. l6l 
 
 m 
 
 utility, who confiders particular more 
 than general conveniences; who had ra- 
 ther command the fentiments of mankind, 
 than excite them, and dares fay to reafon, 
 " Be thou a Have;" who would facrifice 
 a thoufand real advantages, to the fear of 
 an imaginary or trifling inconvenience ; 
 who would deprive men of the ufe of fire, 
 for fear of their being burnt, and of water, 
 for fear of their being drowned ; and who 
 knows of no means of preventing evil but 
 by deflroying it. 
 
 The laws of this nature, are thofe 
 which forbid to wear arms, difarming 
 thofe only who are not difpofed to commit 
 the crime which the laws mean to pre- 
 vent. Can it be fuppofed, that thofe who 
 have the courage to violate the moft facred 
 laws of humanity, and the mod impor- 
 tant of the code, will refpecl the lefs conside- 
 rable and arbitrary injunctions, the viola- 
 tion of which is fo eafy, and of fo little com- 
 parative importance ? Does not the execur 
 tion of this law deprive the fabjecl of that 
 perfonal liberty, fo dear to mankind and to 
 
 M the.
 
 l62 AN ESSAY ON 
 
 the wife legiflator ; and does it not fubjecl: 
 the innocent to all the difagreeable circum- 
 fiances that mould only fall on the guilty ? 
 It certainly makes the fituation of the af- 
 faulted worfe, and of the affailants better, 
 and rather encourages than prevents mur- 
 der, as it requires lefs courage to attack 
 armed than unarmed perfons. 
 
 It is a falfe idea of utility, that would 
 give to a multitude of fenfible beings, that 
 fymmetry and order, which inanimate 
 matter is alone capable of receiving ; to 
 neglect the prefent, which are the only 
 motives that act with force and conftancy 
 on the multitude, for the more diftant, 
 whofe impreffions are weak and tranfitory, 
 unlefs increafed by that ftrength of ima- 
 gination, fo very uncommon among man- 
 kind. ' Finally, that it is a falfe idea of uti- 
 lity, which, facrificing things to names, 
 feparates the public good from that of indi- 
 viduals. 
 
 There is this difference between v a 
 ftate of fociety and a .ftate of nature, that 
 
 a favage
 
 CRIMES AND PUNISHMENTS. 163 
 
 a favage does no more mifchief to another 
 than is necefTary to procure fome benefit 
 to himfelf ; but a man in fociety is fome- 
 times tempted, from a fault in the laws, 
 to injure another, without any profped: of 
 advantage. The tyrant infpires his vallate 
 with fear 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 dange- 
 rous is it to him who makes it the inftru- 
 ment of his happinefs ; but the more it is 
 public, and the greater number of people 
 it affects, the greater is the probability 
 that fome mad, defperate, or deligning 
 perfon will feduce others to his party, by 
 flattering expectations ; and this will be 
 the more ealily accomplished, as the dan- 
 ger 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. 
 
 M 2 CHAP.
 
 164 AN E S S A Y ON ] 
 
 CHAP. XLL 
 
 Of the Means of preventing Crimes. 
 
 IT is better to prevent crimes, than to 
 punifh them. This is the fundamen- 
 tal principle of good legiflation, which is 
 the art of conducting men to the maximum 
 of happinefs, and to the minimum of mifery, 
 if we may apply this mathematical expref-. 
 iion to the good and evil of life. But the 
 means hitherto employed for that pur- 
 pofe, are generally inadequate, or con- 
 trary to the end propofed. It is impofli- 
 ble to reduce the tumultuous activity of 
 mankind to abfolute regularity j for, midfl 
 the various and oppofite attractions of 
 pleafure and pain, human laws are not 
 fufficient entirely to prevent diforders in 
 fociety. Such however is the chimera 
 of weak men, when inverted with autho- 
 rity. To prohibit a number of indiffe- 
 rent adtions, is not to prevent the crimes 
 which they may produce, but to create 
 
 new
 
 CRIMES AND PUNISHMENTS. l6$ 
 
 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 mould we be reduced, 
 if every thing were to be forbidden that 
 might poffibly lead to a crime ? We muft 
 be deprived of the ufe of our fenfes. For 
 one motive that induces a man to commit 
 a real crime, there are a thoufand which 
 
 .excite him to thofe indifferent actions, 
 which are called crimes by bad laws. If, 
 then, the probability that a crime will be 
 
 < committed, be in proportion to the num- 
 ber of motives, to extend the fphere of 
 crimes will be to increafe that probability. 
 The generality of laws are only exclufive 
 privileges ; the tribute of all to the advan- 
 tage of a few. 
 
 Would you prevent crimes ? Let the 
 laws be clear and fimple ; let the entire 
 force of the nation be united in their de- 
 fence ; let them be intended rather to fa- 
 vour every individual, than any particular 
 clafTes of men; let the laws be feared, 
 and the laws only. The fear of the laws 
 
 M i is
 
 l66 -AN ESSAY ON 
 
 ,is falutary, but the fear of men is a fruit- 
 ful and fatal fource of crimes. Men en- 
 ilaved, are more voluptuous, more de- 
 bauched, and more cruel than thofe who 
 are in a ftate of freedom. Thefe fludy 
 the fciences, the intereft of nations, have 
 great objects before their eyes, and imi- 
 tate them; but thofe, whofe views are 
 '"confined to the prefent moment, endeavour, 
 ,'midft the diffraction of riot, and debauche- 
 ry, to forget their fituation; accuftomed 
 to the uncertainty of all events, for the 
 laws determine none, the confequences of 
 their crimes become problematical, which 
 .gives an additional force to the ffrength of 
 their pamons. 
 
 In a nation, indolent from the nature 
 of the climate, the uncertainty of the laws 
 ■confirms and increafes men's indolence and 
 ftupidity. In a voluptuous, but active na- 
 tion, this uncertainty occafions a multipli- 
 city of cabals and intrigues, which fpread 
 diitxufl: and diffidence through the hearts of 
 all, and diffimulation and treachery are the 
 •foundation of their prudence. In a brave 
 
 and
 
 CRIMES AND PUNISHMENTS. l6j 
 
 and powerful nation, this uncertainty of 
 the laws is at laftV deftroyed, after many 
 ofcillations from liberty to flavery, and 
 from ilavery to liberty again. 
 
 CHAP. XLII. 
 
 Of the Sciences, 
 
 OULD you prevent crimes ? Let 
 liberty be attended with knowledge. 
 As knowledge extends, the difadvantages 
 which attend it diminifh, and the advan- 
 tages increafe. A daring impoftor, who 
 is always a man of fome genius, is adored 
 by the ignorant populace, and defpifed by 
 men of underftanding. Knowledge faci- 
 litates the comparifon of objects, by mew- 
 ing them in different points of view. When 
 the clouds of ignorance are difpelled by 
 the radiance of knowledge, authority trem- 
 bles, but the force of the laws remains im- 
 moveable. Men of enlightened under- 
 ftanding mult neceffarily approve thofe ufe- 
 ful conventions, which are the foundation 
 
 M 4 of
 
 l68 AN ESSAY ON 
 
 of public fafety ; they compare, with the 
 higheft fatisfa&ion, the inconfiderable por- 
 tion of liberty of which they are deprived, 
 with the fum total facrificed by others for 
 their fecurity -, obferving that they have 
 only given up the pernicious liberty of in- 
 juring their fellow creatures, they blefs the 
 throne, and the laws upon which it is efta- 
 blimed. 
 
 It is falfe that the fciences have always 
 been prejudicial to mankind. When they 
 were fo, the evil was inevitable. The mul- 
 tiplication of the human fpecies on the face 
 of the earth introduced war, the rudiments 
 of arts, and the firft laws, which were tem- 
 porary compacts arifing from neceffity, and 
 perifhing with 'it. This was the firft. philo- 
 ibphy, and its few elements were juft, as 
 indolence and want of fagacity, in the early 
 • inhabitants of the world, preferved them 
 from error. 
 
 But neceflities increafing with the num- 
 ber of mankind, flronger and more lafting 
 imprefiions were necelTary to prevent their 
 
 frequent
 
 CRIMES AND PUNISHMENTS. 169 
 
 frequent relapfes into a ftate of barbarity, 
 which became every day more fatal. The 
 firft religious errors, which peopled the 
 earth with falfe divinities, and created a 
 world of invifible beings to govern the vifi- 
 ble creation, were of the utmoft fervice to 
 mankind. The greateft benefactors to hu- 
 manity were thofe who dared to deceive, 
 and lead pliant ignorance to the foot of the 
 altar . By prefenting to the minds of the 
 vulgar, things out of the reach of their 
 fenfes, which fled as they purfued, and al- 
 ways eluded their grafpj which, as they never 
 comprehended, they never defpifed, their 
 different paflions were united, and attached 
 to a fingle object. This was the firft tranfi- 
 tion of all nations from their favage ftate. 
 Such was the neceffary, and perhaps the 
 only bond of all focieties at their firft for- 
 mation. I fpeak not of the chofen people 
 of God, to whom the moft extraordinary 
 miracles, and the moft fignal favours, fup- 
 plied the place of human policy. But as it 
 is the nature of error to fub-divide itfelf ad 
 infinitum, fo the pretended knowledge, 
 which fprung from it, transformed man- 
 kind
 
 I7O , ■ . AN EiSAV ON 
 
 kind into a blind fanatic multitude, jarring 
 and deftroying each other in the labyrinth 
 in which they were inclofed : hence it is 
 not wonderful, that fome fenfible and phi- 
 lofophic minds lhould regret the ancient 
 flate of barbarity. This was the nrft epo- 
 cha, in which knowledge, or rather opini- 
 ens, were fatal. 
 
 The fecondmay be found in the diffi- 
 cult and terrible paffage from error to truth, 
 from darknefs to light. The violent /hock 
 between a mafs of errors, ufeful to the few 
 and powerful, and the truths fo important 
 to the many and the weak, with the fer- 
 mentation of paffions, excited on that oc- 
 cafion, were productive of infinite evils to 
 unhappy mortals. In the ftudyof hiftory, 
 whofe principal periods, after certain inter- 
 vals, much refembje each other, we fre- 
 quently find, in. the necerTary paffage from 
 the obfcurity of ignorance to the light of 
 philofophy, and from tyranny to liberty, 
 its natural confequence, one generation fa- 
 crificed to the happinefs of the next. But 
 when this flame is extinguished, and the 
 
 world
 
 CRIMES AND PUNISHMENTS. \Jl 
 
 world delivered from its evils, truth, after 
 • a very flow progrefs, Jits down with mo- 
 narchs on the throne, and is worshipped 
 in the afTemblies of nations. Shall we 
 then believe, that light diffufed among the 
 people is more deftrudtive than darknefs, 
 and that the knowledge of the relations of 
 things can ever be fatal to mankind ? 
 
 *6 V 
 
 Ignorance may indeed be lefs fatal 
 than a fmall degree of knowledge, be- 
 caufe this adds, to the evils of ignorance, 
 
 -the inevitable errors of a confined view of 
 things on this fide the bounds of truth ; 
 but a man of enlightened underftanding, 
 appointed guardian of the laws, is the 
 greateft bleffing that a fovereign can beftow 
 on a nation. Such a man is accuftomed 
 to behold truth, and not to fear it ; unac- 
 quainted with the greater!: part of thofe 
 imaginary and infatiable neceffities, which 
 
 . ih often put virtue to the proof, and ac- 
 cuftomed to contemplate mankind from the 
 
 ^mofl elevated point of view, he confiders 
 
 the nation as his family, and his fellow 
 
 citizens as brothers - y the diftance between 
 
 ; the
 
 I72 AN ESSAY ON 
 
 the great and the vulgar appears to him the 
 lefs, as the number of mankind he has in 
 view is greater. 
 
 The philofopher has neceflities and in- 
 terefts 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 conftitute 
 the happinefs of a nation ; which, how- 
 ever, would be but of fhort durarion, un- 
 lefs by good laws, the number were fo in- 
 creafed, as to leflen the probability of an 
 improper choice. 
 
 CHAP. XLIIL 
 
 Of Magijirates. 
 
 ANOTHER method of preventing 
 crimes is, to make the obfervance of 
 the laws, and not their violation, the inte- 
 reft of the magiftrate. 
 
 The
 
 CRIMES AND PUNISHMENTS. I73 
 
 The greater the number of thofe who 
 conftitute the tribunal, the lefs is the 
 danger of corruption ; becaufe the attempt 
 will be more difficult, and the power and 
 temptation of each individual will be pro- 
 portionably lefs. If the fovereign, by- 
 pomp and the aufterity of edicts, and by 
 refunng. to hear the complaints of the 
 opprefTed, accuftom his fubjedts to refpe6t 
 the magiftrates more than the laws, the 
 magiftrates will gain indeed, but it will 
 be at the expence of public and private 
 fecurity. 
 
 CHAP. XLIV. 
 
 Of Rewards. 
 
 YET another method of preventing 
 crimes is, to reward virtue. Upon 
 this fubjecl the laws of all nations are filent. 
 If the rewards, propofed by academies for 
 the difcovery of ufeful truths, have in- 
 creafed our knowledge, and multiplied 
 good books, is it not probable, that re- 
 wards,
 
 174 AN essay on 
 
 wards, diftributed by the beneficent hand 
 of a fovereign, would alfo multiply vir- 
 tuous actions. The coin of honour is in- 
 exhauftible, and is abundantly fruitful in 
 the hands of a prince who diftributes it 
 wifely. 
 
 CHAP. XLV. 
 
 Of Education. 
 
 FINALLY, the mofl certain method of 
 preventing crimes is, to perfect the fyf- 
 tem of education. But this is an object too 
 vaft, and exceeds my plan ; an object, if 
 I may venture to declare it, which is fo inti- 
 mately connected with the nature of govern- 
 ment, that it will always 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 impor- 
 tant truths, hath moft amply detailed the 
 principal maxims of ufeful education. 
 
 This
 
 CRIMES AND PUNISHMENTS. IJ$ 
 
 This chiefly confifts in prefentlng to the 
 mind a fmall number of felecl: objects ; in 
 fubftituting the originals for the copies, 
 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 necef- 
 fary inconveniences, rather than by com- 
 mand, which only obtains a counterfeit and 
 momentary obedience. 
 
 > 
 CHAP. XLVI. 
 
 Of Pardons. 
 
 AS punifhments become more mild, 
 clemency and pardon are lefs necef- 
 fary. Happy the nation in which they will 
 be confidered as dangerous! Clemency, 
 which has often been deemed a fufficient 
 fubftitutefor every other virtue in fovereigns, 
 mould be excluded in a perfect legiflation, 
 where punifhments are mild, and the pro- 
 ceedings in criminal cafes regular and ex- 
 peditious. This truth will feem cruel to 
 
 thofe
 
 176 AN ESSAY ON 
 
 thofe who live in countries, where, from 
 the abfurdity of the laws, and the feverity 
 of punishments, pardons, and the clemency 
 of the prince, are neceff iry. It is indeed one 
 of the nobleft prerogatives 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 exe- 
 cutor of the laws ; a virtue which ought to 
 mine in the code, and not in private judg- 
 ment. To fhew mankind, that crimes are 
 fometimes pardoned, and that punifhment 
 is not the neceflary confequence, is to nou- 
 rifh the flattering hope of impunity, and 
 is the caufe of their considering every pu- 
 nifhment inflicted as an act of injuftice and 
 oppreflion. The prince in pardoning, gives 
 up the public fecurity in favour of an indivi- 
 dual, and, by his ill-judged benevolence, 
 proclaims a public act of impunity. Let, 
 then, the executors of the laws be inexora- 
 ble, but let the legiflator be tender, indul- 
 gent and humane. He is a wife architect, 
 who erects his edifice on the foundation of 
 felf-love, and contrives, that the intereft of 
 the public mall be the intereft of each indi- 
 vidual -, 

 
 CRIMES AND PUNISHMENTS. IJJ 
 
 vidual ; who is not obliged by particular 
 laws, and irregular proceedings, to fepa- 
 rate the public good from that of individu- 
 als, and erect the image of public felicity 
 on the bafis of fear and diftruft ; but like 
 a wife philofopher, he will permit his bre- 
 thren to enjoy, in quiet, that fmall por- 
 tion of happinefs, which the immenfe fyf- 
 tem, eftablifhed by the firfr. caufe, permits 
 them to tafle on this earth, which is but a 
 point in the univerfe. 
 
 A small crime is fometimes pardoned, 
 if the perfon offended chufes to forgive the 
 offender. This may be an act of good- 
 nature and humanity, but it is contrary to 
 the good of the public. For, although a 
 private citizen may difpenfewith fatisfaction 
 for the injury he has received, he cannot 
 remove the neceffity of example. The 
 right of punifhing belongs not to any indi- 
 vidual in particular, but to fociety in gene- 
 ral, or the fovereign. He may renounce 
 his own portion of this right, but cannot 
 give up that of others. 
 
 N CHAP.
 
 I78 AN ESSAY ON 
 
 CHAP. XLVII. 
 CONCLUSION. 
 
 I conclude with this reflection, that 
 the feverity of punifhments ought to be in 
 proportion to the ftate of the nation. 
 Among a people hardly yet emerged from 
 barbarity, they fhould be moil fevere, as 
 ftrong imprefhons are required 3 but in pro- 
 portion as the minds of men become foften- 
 ed by their intercourfe in fociety, the feve- 
 rity of punifhments fhould be diminished, 
 if it be intended, that the necefTary relation 
 between the object and the fenfation fhould 
 be maintained. 
 
 From what I have written refults the 
 following general theorem, of confiderable 
 utility, though not conformable to cuflom, 
 the common legiflator of nations. 
 
 That
 
 CRIMES AND PUNISHMENTS. 179 
 
 That a panijhment may not be an a£i of 
 violence, of one, or of many againji a private 
 metnber of fociety, it jhould be public, im- 
 mediate and neceffary ; the leaft pofjible in the 
 cafe given ; proportioned to the crime, and 
 determined by the laws.
 
 [ i ] 
 
 COMMENTARY 
 
 On the Book of 
 
 CRIMES and PUNISHMENTS. 
 
 CHAP. I. 
 
 The Occqfion of this Commentary. 
 
 AVING read, with infinite fatisfac- 
 tion, the little book on Crimes and 
 Punifhments, which in morality, as in me- 
 dicine, may be compared to one of thofe 
 few remedies, capable of alleviating our 
 fufFerings ; I flattered myfelf, that it would 
 be a means of foftening the remains of 
 barbarifm in the laws of many nations ; 
 I hoped for fome reformation in mankind, 
 when I was informed, that within a few 
 miles of my abode, they had juft hanged 
 a girl of eighteen, beautiful, well made, 
 
 N 3 accom-
 
 11 A COMMENTARY ON 
 
 accomplished, and of a very reputable fa- 
 mily. 
 
 She was culpable of having fufFered her- 
 felf to be got with child, and alfo, of having 
 abandoned her infant. This unfortunate 
 girl, flying from her father's houfe, is taken 
 in labour, and without afliftance, is deli- 
 vered of her burthen, by the fide of a wood. 
 Shame, which in the fex is a powerful 
 paffion, gave her ftrength to return home, 
 and to conceal her fituation. She left her 
 child expofed ; it is found the next morn- 
 ing 3 the mother is difcovered, condemn- 
 ed, and executed. 
 
 The firft fault of this unhappy victim, 
 ought to have been concealed by the family, 
 or rather claims the protection of the laws, 
 becaufe it was incumbent on her feducer to 
 repair the injury he had done; becaufe 
 weaknefs hath a right to indulgence ; be- 
 caufe concealing her pregnancy may en- 
 danger her life ; becaufe declaring her con- 
 dition deflroys her reputation, and becaufe 
 
 the
 
 CRIMES AND PUNISHMENTS. iU 
 
 the difficulty of providing for her infant is 
 a great additional misfortune. 
 
 Her fecond fault is more criminal. She 
 abandons the fruit of her weaknefs, and 
 expofes it to perifh. 
 
 But, becaufe a child is dead, is it abfo- 
 lutely neceffary to kill the mother ? She 
 did not kill the child. She flattered her- 
 felf, that fome paflenger would have com- 
 panion on the innocent babe. It is even 
 pofTible that me might intend to return and 
 provide for it; a fentiment fo natural in the 
 breaft of a mother, that it ought to be pre- 
 fumed. The law, in the country of which 
 I am fpeaking, is, indeed, pofitively againfl 
 her. But is it not an unjuft, inhuman and 
 pernicious law ? JJnjufi, becaufe it makes 
 no diftinction between her who murders, 
 and her who abandons her infant ; inhu- 
 man, becaufe it punifhes with death a too 
 great defire of concealing a weaknefs ; per- 
 niciousy becaufe it deprives the flate of a 
 fruitful fubjecl:, in a country that wants in- 
 habitants. 
 
 N 4 Charity
 
 IV A COMMENTARY OM 
 
 Charity hath not yet eftablifhed, in 
 that nation, 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 misfortunes. The proper 
 object, of jurifprudence is, to hinder the 
 commiffion of crimes, rather than condemn 
 to death a weak woman, when it is evi- 
 dent, that her tranfgreilion was unattended 
 with malice, and that ihe hath already been 
 feverely punifhed by the pangs of her own 
 heart. 
 
 Insure, as far as poffible, a refource to 
 thofe who iliall be tempted to do evil, and. 
 you will have lefs to punifh. 
 
 CHAP, II. 
 
 Of "Punijhments. 
 
 '"T"^ HIS misfortune, and this very hard 
 
 JL Jaw, with which I was fo fenfibly 
 
 affected, prompted me to caft my eyes on 
 
 the criminal code of nations. The hu-
 
 CRIMES AND PUNISHMENTS. V 
 
 mane author of the EfTay on Crimes and 
 Punifhments, had but too much caufe to 
 complain, that the latter frequently exceed 
 the former, and are fometimes detrimental 
 to the ftate they were intended to ferve. 
 
 Those ingenious punifhments, the ne 
 •plus ultra of the human mind endeavouring 
 to render death horrible, feem rather the in- 
 ventions of tyranny than of juftice. 
 
 The punifhment of the wheel was firft 
 introduced in Germany, in the times of 
 anarchy, when thofe who ufurped the regal 
 power, refolved to terrify, with unheard of 
 torments, thofe who fhould difpute their 
 authority. In England, they ripped open 
 the belly of a man guilty of high treafon ; 
 tore out his heart, dafhed it in his face, and 
 then threw it into the fire. And wherein 
 did this /6/V>6 treafon frequently confift? In 
 having been, during a civil war, faithful to 
 an unfortunate king ; or in having fpoken 
 freely on the doubtful right of the conque- 
 ror. At length, their manners were foften- 
 cd they continue to tear out the heart, 
 
 but
 
 VI A COMMENTARY ON 
 
 but not till after the death of the offender. 
 The apparatus is dreadful -, but the death is 
 mild, if death can ever be mild. 
 
 CHAP. III. 
 
 (5n the Punifhment of Heretics. 
 
 THE denunciation of death to thofe 
 who, in certain dogmas, differed from 
 the eftablifhed church, was peculiarly the 
 act of tyranny. No chriftian emperor, be- 
 fore the tyrant Maximus, ever thought of 
 condemning a man to punifhment merely 
 for points of controverfy. It is true, in- 
 deed, that two Spanifh bifhops purfued to 
 death the Prifcilianifts under Maximus ; 
 but it is alfo true, that this tyrant was wil- 
 ling to gratify the reigning party with the 
 blood of heretics. Barbarity and juftice 
 were to him indifferent. Jealous of Theo- 
 dolius, a Spaniard like himfelf, he endea- 
 voured to deprive him of the empire of the 
 Eaft, as he had already obtained that of the 
 Welt. Theodofius was hated for his cruel- 
 ties ; but he had found the means of gain- 
 ing
 
 CRIMES AND PUNISHMENTS. Vll 
 
 ing to his party the heads of the church. 
 Maximus was willing to difpb.y the fame 
 zeal, and to attach the Spanifn bimops to 
 his faction. He flattered both the old and 
 the new religion - y he was as treacherous as 
 inhuman, as indeed were all thofe who at 
 that time, either pretended to, or obtained 
 empire. That vaft part of the world was 
 then governed like Algiers at prefent. Em- 
 perors were created and dethroned by the 
 military power, and were often choien from 
 among nations that were reputed barbarous. 
 Theodofius oppofed to his competitor other 
 barbarians from Scythia. He filled the 
 army with Goths, and furprized Alaric the 
 conqueror of Rome. In this horrible con- 
 fulion, each endeavoured to ftrengthen his 
 party by every means in his power. 
 
 Maximus having caufed the emperor 
 Gratian, the colleague of Teodofius, to 
 be aflaflmated at Lyons, meditated the de- 
 ftruction of Valentinian the fecond, who, 
 during his infancy, had been named fuc- 
 ceiTor to Gratian. He alTembled at Treves 
 a powerful army, compofed of Gauls and 
 
 Germans.
 
 Vlll A COMMENTARY ON 
 
 Germans. He caufed troops to be levied 
 in Spain, when two Spanifh bifhops, Idacio 
 and Ithacus, or Itacius, both men of credit, 
 came and demanded of him the blood of 
 Prifcilian and all hie adherents, who were 
 of opinion, that fouls were emanations 
 from God ; that the Trinity did not contain 
 three hypoftafes ; and moreover, they car- 
 ried their facrilege fo far as to fait on Sun- 
 days. Maximus, half pagan and half 
 chriflian, foon perceived the enormity of 
 thefe crimes. The holy bifhops Idacio and 
 Itacius, obtained leave to torture Prifcilian 
 and his accomplices before they were put 
 to death. They were both prefent, that 
 things might be done according to order, 
 and they returned blerling God, and num- 
 bering Maximus the defender of the faith, 
 amonor the faints. But Maximus being 
 afterwards defeated by Theodofius, and 
 affaffinated at the feet of his conqueror, had 
 not the good fortune to be canonized. 
 
 It is proper to obferve, that St. Martin, 
 bifnop of Tours, who was really a good 
 man, folicited the pardon of Prifcilian, but 
 
 being
 
 CRIMES AND PUNISHMENTS. IX 
 
 being himfelf accufed of hereiy by the bi- 
 fhops, he returned to Tours for fear of the 
 torture at Treves. 
 
 As to Prifcilian, he had the confolation, 
 after he was hanged, of being honoured by 
 his fed, as a martyr. His feafl was cele- 
 brated, and would be celebrated ftill, if 
 there were any Prifciiianifts remaining. 
 
 This example made the entire church 
 
 tremble; but it was foon after imitated and 
 
 furpafied. Prifciiianifts had been put to 
 
 death by the fword, the halter, and by la- 
 
 pidation. A young lady of quality, fuf- 
 
 pe&ed to have failed on a Sunday, was, at 
 
 Bourdeaux, only ftoned to death. Thefe 
 
 punifhments appeared too mild; it was 
 
 proved, that God required that heretics 
 
 fhould be roafted alive. The peremptory 
 
 argument, in fupport of this opinion, 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- 
 
 lunary world, 
 
 On
 
 X v A COMMENTARY ON 
 
 On this principle it was, that all over 
 Europe, they burnt witches and forcerers, 
 who were manifestly under the empire of 
 the devil ; and alfo heterodox chriftians, 
 which were deemed frill 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 Conftantia, in the year 1022. How 
 indeed mould it be known ? there being, 
 at that time, but a fmall number of clerks 
 and monks that could write. All we cer- 
 tainly know is, that Robert and his wife 
 feafted their eyes with this abominable 
 fpectacle. One of the fe&aries had been 
 confefibr to her majefly, who thought fhe 
 could not better repair the misfortune of 
 having confefTed to a heretic, than by feeing 
 him devoured by the flames. 
 
 Custom becomes law : from that period 
 to the prefent time, a fpace of more than 
 feven hundred years, the church hath con- 
 tinued
 
 CRIMES AND PUNISHMENTS. XI 
 
 tinued to burn thofe that are guilty, or fup- 
 pofed guilty, of an error in opinion. 
 
 CHAP. IV. 
 
 On the Extirpation of Hercjy. 
 
 IT feems neceffary to diftinguifh an he- 
 refy of opinion from faction. From the 
 firfl ages of ChrifKanity opinions have been 
 different. The Chriftians of Alexandria 
 were, in many points, of a different opi- 
 nion from thofe of Antioch. The Achai- 
 ans differed from the Afiatics. This 
 diverfity of opinion exifted from the be- 
 ginning, and probably will continue for 
 ever. Jefus Chrift, who could have uni- 
 ted 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 
 acts of indulgence and charity, by per- 
 mitting different fyftems, yet all agreeing 
 to acknowledge him their lord and ma*if.er. 
 Thefe feveral feels, fo long as they were 
 tolerated by the emperors, or concealed 
 
 from
 
 Xll A COMMENTARY ON 
 
 from their fight, had it not in their power 
 to perfecute each other, being equally fub- 
 ject to the Roman magistrates : they could 
 only difpute. If they were perfecuted, 
 they equally claimed the privilege of na- 
 ture : " Suffer us, they laid, to adore our 
 God in peace, and do not rcfufe us the 
 liberty you grant to the Jews ;" Every 
 &di may now urge the fame argument to 
 their oppreffors. They may fay to thofe 
 who grant privileges to the Jews : " Treat 
 us as you treat the fons of Jacob -, let us, 
 like them, pray to God according to our 
 confcience. Our opinion will no more in- 
 jure your (late, than Judaifm. You tole- 
 rate the enemies of Jefus Chrifl: ; tolerate 
 us who adore him, and who differ from you 
 only in theological fubtilties. Do not de- 
 prive yourfelves of ufeful fubjecls j ufeful 
 in your manufactures, your marine, and 
 the cultivation of your lands. Of what 
 importance is it, that their Creed be fome- 
 what different from yours ? You want their 
 labour, and not their Catechijfm." 
 
 Fao
 
 CRIMES AND PUNISHMENTS. Xlll 
 
 Faction is quite a different thing. It 
 always happens, that a perfecuted feci: de- 
 generates into faction. The opprelfed na- 
 turally unite and animate each other; and 
 are generally more induftrious in ftrength- 
 ening their party, than their perfecutors in 
 their extermination. They muft either de- 
 ftroy or be deftroyed. So it happened after 
 ter the perfecuton excited in 304, by Ga- 
 lerius, in the two laft years of Dioclefian. 
 The Chriftians, having been favoured by 
 that emperor during eighteen years, were 
 become too numerous and too rich to be 
 exterminated. They joined Chlorus ; they 
 fought for his fon Conftantine, and a total 
 revolution of the empire was the confe- 
 quence. 
 
 Small events may be compared with 
 great, when they are produced by the fame 
 fpirit. Revolutions of a fimilar kind hap- 
 pened in Holland, in Scotland, and in 
 Switzerland. When Ferdinand and Ifa- 
 bella drove the Jews out of Spain, where 
 they were eftablifhed, not only before the 
 reigning family, but before the Moors, the 
 
 O Goths,
 
 XIV A COMMENTARY ON 
 
 Goths, or even the Carthaginians ; if the 
 Jews had been as warlike as they were 
 rich, they might eafily, in conjunction with 
 the Arabs, have effected a revolution. 
 
 In fhort, no feet ever changed the go- 
 vernment, unlefs excited by defpair. Ma- 
 homed himfelf fucceeded only becaufe he 
 was driven from Mecca, and a reward of- 
 fered for his head. 
 
 Would you prevent a feet from over- 
 turning the ftate, imitate the prefent wife 
 conduct of England, of Germany, of Hol- 
 land; ufe toleration. The only methods, 
 in policy, to be taken with a new feet, are, 
 to put to death the chief and all his adhe- 
 rents, men, women, and children, with- 
 out fparing one individual ; or to tolerate 
 them, when numerous. The firft method 
 is that of a monfler -, the fecond, of a wife 
 man. 
 
 Chain your fubjects to the flate by 
 their intereft. Let the Quaker and the 
 Turk find their advantage in living under 
 
 your
 
 CRIMES AND PUNISHMENTS. XV 
 
 your laws. Religion is of God to man ; 
 the civil law is of you to your people. 
 
 CHAP. V. 
 
 Of Profanation. 
 
 LEWIS IX. King of France, who for 
 his virtues was numbered among the 
 faints, made a law againft blafphemers. 
 He condemned them to a new puniih- 
 ment ; their tongues were pierced with a 
 hot iron. It was a kind of retaliation; 
 the finning member fufFering the punim- 
 ment. But it was fomewhat difficult to 
 determine, what was blafphemy. Expref- 
 fions frequently efcape from a man in a 
 paffion, from joy, or even in converfation, 
 which are merely expletives, fuch as the 
 fela and the vab of the Hebrews, the pol 
 and the czdepol of the Latins, as alfo per 
 Deos immor tales, an expreffion frequently 
 ufed, without the leaft intention of fwear- 
 ing by the immortal Gods. 
 
 The words which are called oaths and 
 blafphemy, are commonly vague terms 
 
 O 2 that
 
 XVI A COMMENTARY ON 
 
 that may be varioufly interpreted. The 
 law by which they are punifhed, feems to 
 be founded on that of the Jews, which 
 fays, Thou Jhalt not take the name of the 
 Lord thy God in vain. The befl commen- 
 tators are of opinion, that this command- 
 ment relates to perjury ; and there is the 
 more reafon to believe them right, as the 
 word JJjave', which is tranflated in vain, 
 properly fignifies perjury. Now what ana- 
 logy can there be between perjury and 
 Cabo de dios, Cadedis, Sangbleu, Ventrebleu, 
 Corpo di dioy &c. ? 
 
 It was cuftomary with the Jews to 
 fwear by the life of God, as the Lord 
 liveth : the phrafe was common : fo that it 
 was lying in the name of God, that was 
 forbidden. 
 
 Philip Augustus, in 1 1 8 1 , condemn- 
 ed the nobility, who mould pronounce 
 the words which are foftened in the terms 
 Tetebleu, ventrebleu, cor bleu y fangbleu, to pay 
 a fine, and the plebeians to be drowned. 
 The firft part of this law feems puerile, 
 
 the
 
 CRIMES AND PUNISHMENTS. XVll 
 
 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, remained unexecuted, es- 
 pecially when the king was excommuni- 
 cated, and his kingdom interdicted by pope 
 Celeftine III. 
 
 Saint Lewis, tranfported with zeal, 
 ordered indifcriminately, that whofoever 
 mould pronounce thefe indecent words, 
 fhould have his tongue bored, or his up- 
 per lip cut off. A citizen of Paris, having 
 Suffered this punifhment, complained to 
 Pope Innocent IV. This Pontiff remon- 
 ftrated to the king that the punifhment 
 was too great for the crime, which how- 
 ever had no effect upon his majefVy. Hap- 
 py had it been for mankind, if the popes 
 had never affected any other Superiority 
 over kings. 
 
 The ordinance of Lewis XIV. fays, 
 " Thofe who (hall be convicted of having 
 fworn by, or blafphemed the holy name of 
 
 O 3 God,
 
 XV111 A COMMENTARY ON 
 
 God, of his moil: holy mother, or of his 
 faints, mail, for the firfl offence, pay a 
 fine ; for the fecond, third and fourth, a 
 double, triple, and quadruple fine ; for the 
 fifth, mall be put in the flocks ; for the 
 fixth, fhall ftand in the pillory, and lofe 
 his upper lip; for the feventh, fhall have 
 his tongue cut out." 
 
 This law appears to be humane and 
 juft, as it inflicts a cruel punifhment only 
 on a fevenfold repetition, which can hardly 
 be prefumed. 
 
 But with regard to more atrocious pro- 
 fanations, which are called facrilege, the cri- 
 minal ordinance mentions only robbing of 
 churches ; it takes no notice of public im- 
 pieties, perhaps becaufe they were not fup- 
 pofed to happen, or were too difficult to 
 fpecify. They are left therefore to the 
 difcretion of the judge ; and yet nothing 
 ought to be left to difcretion. 
 
 In fuch extraordinary cafes, how is the 
 judge to a<5t ? He fhould confider the age 
 
 of
 
 CRIMES AND PUNISHMENTS. XIX 
 
 of the offender, the nature and degree of 
 his offence, and particularly the neceffity 
 of a public example. Pro qualitate per- 
 fonce, quoque rei conditione & temporis & 
 cetatis & fexus, vel clementius Jtatuendum. 
 If the law does not exprefly fay that fuch 
 a crime mall be punifhed with death, what 
 judge mail think himfelf authorized to 
 pronounce that fentence ? If the law be 
 filent ; if neverthelefs a punifhment be re- 
 quired, the judge ought certainly, without 
 hefitation, to decree the leaft fevere, becaufe 
 he is a man. 
 
 Sacrilegious profanations are never 
 committed, except by young debauchees. 
 Would you punifh them as feverely as if 
 they had murdered a brother ? Their 
 youth pleads in their favour. They are 
 not fufrered to difpofe of their pofTeffions, 
 becaufe they are fuppofed to want maturity 
 of judgment, fufficient to forefee the con- 
 fequences of an imprudent tranfaclion. Is 
 it not therefore natural to fuppofe, that they 
 are incapable of forefeeing the confequences 
 of their impiety ? 
 
 O4 Would
 
 XX A COMMENTARY ON 
 
 Would you treat a wild young man, 
 who, in his phrenzy, had profaned a fa- 
 cred image, without ftealing it, with the 
 fame rigour that you punifhed a Brinvil- 
 liers, who poifoned his father and his whole 
 family ? 
 
 There is no law againft the unhappy 
 youth, and you are determined to make one 
 that mall condemn him to the feverefl pu- 
 nifhment ! He deferved chaftifement; but 
 did he deferve fuch excruciating torture, 
 and the moffc horrible death ? 
 
 But he had offended God ! True, moil 
 grievoufly. Imitate God in your proceed- 
 ings againft him. If he be penitent, God 
 forgives him. Impofe a penance, and let 
 him be pardoned. 
 
 Your illuflrious Montefquieu hath faid : 
 It is our duty to honour the Deity, and 
 r.ot to revenge him. Let us weigh thefe 
 words. They do not mean, that we mould 
 neglecl the maintenance of publick deco- 
 rum ; but, as the judicious author of the 
 
 preceding
 
 CRIMES AND PUNISHMENTS. XXI 
 
 preceding EfTay obferves, that it is abfurd 
 for an infect to pretend to revenge the Su- 
 preme Being. A village magistrate, or the 
 magistrate of a city, is neither a Mofes nor 
 a Jofhua. 
 
 CHAP. VI. 
 
 Of the Indulgence of the Romans in Matters 
 
 of Religion. 
 
 THE amazing contrail between the 
 Roman laws, and the barbarous in- 
 stitutions by which they were fucceeded, 
 hath often been the fubject of converfation 
 among the fpeculative part of mankind. 
 
 Doubtless the Roman fenate held the 
 fupreme God in as great veneration as we ; 
 and profeifed as much efteem for their fe- 
 condary deities as we for our faints. Ab 
 jfove principium was their common for- 
 mule. Pliny in his panegyric on the good 
 Trajan attefts, that the Romans never 
 omitted to begin their difcourfe, and af- 
 fairs, by invoking the Deity. Cicero and 
 
 Livy
 
 XX11 A COMMENTARY ON 
 
 Livy tells us the fame thing. No people 
 were more religious; but they were too 
 wife, and too great, to defcend to the pu- 
 nishment of idle language or philofophick 
 opinions : they were incapable of inflict- 
 ing barbarous punifhments on thofe who, 
 with Cicero, himfelf an auger, had no 
 faith in auguries; or on thofe who, like 
 Caefar, afferted in full fenate, that the gods 
 do not punifh men after death. 
 
 It hath often been remarked, that the 
 fenate permitted the chorus in the Troad 
 to fing : 'There is nothing after deaths and 
 death it f elf is nothing. Tou afk, what be- 
 comes of the dead? they are where they were 
 ere they were horn.* 
 
 Was ever profanation more flagrant 
 than this ? From Ennius to Aufonius 
 all is profanation, notwithstanding the 
 refpecT: for divine worfhip. Why were 
 thefe things difregarded by the fenate? 
 becaufe they did not, in any wife, affecT: 
 the government of the ftate ; becaufe they 
 
 difturbed 
 * Poft mortem nihil eft, mors ipfaque nihil, &c. Seneca. 

 
 CRIMES AND PUNISHMENTS. XXlll 
 
 difturbed no inftitiition, nor religious ce- 
 remony. The police of the Romans was 
 neverthelefs excellent ; they were never- 
 thelefs abfolute matters of the belt, part of 
 the world, till the reign of Theodolius the 
 fecond. 
 
 It was a maxim of the Romans, Deo* 
 rum qffenfa, Diis cur a, Offences againft 
 the Gods concern the Gods only. The 
 fenate, by the wifeft inftitution, being at 
 the head of religion, were under no appre- 
 henfions, that a convocation of priefts 
 mould force them to revenge the prieft- 
 hood under a pretext of revenging hea- 
 ven. They never faid, let us tear the im- 
 pious afunder, left we ourfelves be deem- 
 ed impious; let us mew the priefthood, 
 by our cruelty, that we are no lefs religious 
 than they. 
 
 But our religion is more holy than that 
 
 of the Romans, and confequently impiety 
 
 is a greater crime. Granted. God will pu- 
 
 nifh it. The part of man is, to punim 
 
 that which is criminal in the publick difor- 
 
 der
 
 XXIV A COMMENTARY ON 
 
 der which the impiety hath occafioned. 
 But if in the acl: of impiety the delinquent 
 hath not even ftolen a handkerchief; if the 
 ceremonies of religion have been in no 
 wife difturbed, mall we, as I faid before, 
 punifh the impiety as we would punifh 
 parricide ? The Marfhal d'Ancre had cau- 
 fed a white cock to be killed when the 
 moon was at full : ought we therefore Jo 
 burn the Marfhal d'Ancre ? 
 
 Eft modus in rebus, funt certi denique fines $ 
 Necfcutka dignum horribili fetter e jlagello. 
 
 CHAP. VII. 
 
 On the Crime of Preaching', and of Anthony. 
 
 ACalvinist teacher, who, in certain 
 provinces, preaches to his flock, if he 
 be detected, is punifhed with death ; and 
 thofe who have given him a fupper, or a 
 bed, are fent to the gallies for life. 
 
 In other countries, if a Jefuit be caught 
 preaching, he is hanged. Is it to avenge 
 God that this Calvinift and this Jefuit are 
 
 put
 
 CRIMES AND PUNISHMENTS. XXV 
 
 put to death ? Have both parties built 
 upon the following Evangelical law ? If 
 he negleSi to hear the churchy let him be unto 
 thee as an heathen man and a publican. 
 But the Evangelift does not order that 
 this heathen and this publican mould be 
 hanged. 
 
 Or have they built on this pafTage in 
 Deuteronomy* ? If among you a -prophet 
 arife ; and that which he hath faid come to 
 pafs -, and he fayeth unto you, let us follow 
 Jl range Gods-, and if thy brother, or thy f on, 
 or thy wife, or the friend of thy heart, fay 
 unto thee, come, let us follow Jlrange Gods j 
 let than be Jiraitways killed, Jlrike thou firjl, 
 and all the people after thee. But neither this 
 Jefuit nor the Calvinift faid unto you, come, 
 let us follow flrange Gods. 
 
 The counfellor Dubourg, the monk Je- 
 han Chauvin, named Calvin, the Spanifh 
 phyfician Servetus, the Calabrian Genti- 
 )is, all worshipped the fame God : and 
 yet, the preftdent Minard caufed counfel- 
 lor 
 
 * Chap. xiii.
 
 XXVI A COMMENTARY ON • 
 
 lor Dubourg to be burnt ; and Dubourg's 
 friends caufed prefident Minard to be afTaf- 
 iinated; Jehan Calvin caufed the phyfician 
 Servetus to be roafled; and had likewife 
 the confolation to be a principal means of 
 bringing theCalabrian Gentilisto the block; 
 and the fucceffors of Jehan Calvin burnt 
 Anthony. Was it reafon, or piety, or juf- 
 tice, that committed thefe murders ? 
 
 This hiftory of Anthony is one of the 
 moft lingular which the annals of phrenfy 
 hath preferved. I read the following ac- 
 count in a very curious manufcript; it is in 
 part related by Jacob Spon. 
 
 Anthony was born at Brieu in Lorrain, 
 of catholic parents, and he was educated 
 by the Jefuits at Pont-a-MourTon. The 
 preacher Feri engaged him in the protec- 
 tant religion at Metz. Having returned to 
 Nancy he was profecuted as a heretick, 
 and, had he not been faved by a friend, 
 would certainly have been hanged. He 
 fied for refuge to Sedan, where, being 
 taken for a papift, he narrowly efcaped 
 aflafli nation. 
 
 Seeing
 
 CRIMES AND PUNISHMENTS. XXVU 
 
 Seeing by what flrange fatality his life 
 was not in fafety either among papifts or 
 proteftants, he went to Venice and turned 
 Jew. He was pofitively perfuaded, even. 
 to the laft moments of his life, that the 
 religion of the Jews was the only true re- 
 ligion; for that if it was once true itmufl 
 always be fo. The Jews did not circum- 
 cife him, for fear of offending the ftate; 
 but he was no lefs internally a Jew. He 
 now went to Geneva, where, concealing 
 his faith, he became a preacher, was pre- 
 iident of the college, and finally what is 
 called a minifler. 
 
 The perpetual combat in his breafl be- 
 tween the religion of Calvin, which he 
 was obliged to preach, and that of Mofes, 
 which was the only religion he believed, 
 produced a long illnefs. He became me- 
 lancholy, and at laft quite mad, crying 
 aloud that he was a Jew. The minifters 
 of the gofpel came to vifit him, and en- 
 deavoured to bring him to himfelf; but 
 he anfwered ■> " that he adored none but 
 '* the God of Ifrael; that it was impof- 
 
 " fible
 
 XXVlll A COMMENTARY ON 
 
 " fible for God to change 5 that God could 
 " never have given a law, and infcribed it 
 " with his own hand, with an intention 
 ** that it fhould be abolifhed." He fpoke 
 againft Chriftianity, and afterwards retrac- 
 ed all he had faid, and even wrote his con- 
 feffion of faith, to efcape punifhment ; but 
 the unhappy perfuafion of his heart would 
 not permit him to fign it. The council of 
 the city arTembled the clergy, to confult 
 what was to be done with the unfortunate 
 Anthony. The minority of thefe clergy 
 were of opinion, that they mould have com- 
 panion on him, and rather endeavour to 
 cure his difeafe, than punifh him. The 
 majority determined that he mould be 
 burnt, and he was burnt. This tranfaction 
 is of the year 1632*. A hundred years of 
 reafon and virtue are fcarce fufficient to ex- 
 piate fuch a deed. 
 
 CHAP. 
 
 * Spon. p. 500. Guy Vances,
 
 CRIMES AND PUNISHMENTS. XXIX 
 
 CHAP. VIII. 
 
 The Hijiory of Simon Morin. 
 
 THE tragical end of Simon Morin is 
 not lefs horrible than that of poor 
 Anthony. It was midft the feafting, plea* 
 fures and gallantry of a brilliant court ; it 
 was even in the times of the greateft licen- 
 tioufnefs, that this unfortunate madman 
 was burnt at Paris, in the year 1663. 
 Imagining that he had feen virions, he 
 carried his folly fo far as to believe that he. 
 was fent from God, and that he was incor- 
 porated with Jelus 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 an- 
 other fool, who called himfelf God the 
 Father. Simon Morin was fo ftruck with 
 the folly of his companion that he acknow- 
 ledged his own, and appeared, for a time, 
 to have recovered his fenfes. He declared 
 
 P his
 
 XXX A COMMENTARY ON 
 
 his repentance, and unfortunately for him- 
 felf obtained his liberty. 
 
 Some time after he relapfed into his 
 former nonfenfe, and began to dogmatize. 
 His unhappy defKny brought him acquain- 
 ted with St. Sorlin Defmarets, who for 
 ibme months was his friend, but who after- 
 wards, from jealoufy, became his moil 
 cruel perfecutor. 
 
 This Defmarets was no lefs a vifionary 
 than Morin. His firft follies indeed were 
 innocent. He printed the Tragi-Co- 
 medies of Erigone and Mirame, with a 
 tranflation of the Pfalmsj the Romance 
 of Ariane and the Poem of Clovis, with 
 the office of the holy Virgin turned into 
 verfe. He likewife publifhed dithyrambic 
 poems, enriched with invectives againft 
 Homer and Virgil. From this kind of 
 follies he proceeded to others of a more 
 ferious nature. He attacked Port Roya/ 9 
 and after confeffing that he had perverted 
 ibme women to atheifm, he commenced 
 prophet. He pretended that God had 
 
 given
 
 CRIMES AND PUNISHMENTS. XXXI 
 
 given him, with his own hand, the key to 
 the treafure of the Apocalypfe, that with 
 this key he would reform the whole world, 
 and that he mould command an army of 
 an hundred and forty thoufand men againfl 
 the Janfenifts. 
 
 Nothing could have been more rea- 
 fonable and more juft, than to have con- 
 fined him in the fame place with Simon 
 Morin : but can it be believed, that he 
 found credit with the Jefuit Annate the 
 king's conferlor ? whom he perfuaded, that 
 this poor Simon Morin would eftablifh a 
 feci: almoft as dangerous as the Janfenifts 
 themfelves. In mort, carrying his infamy 
 fo far as to turn informer, he obtained an 
 order to feize the perfon of his rival. Shall 
 I tell it ? Simon Morin was condemned to 
 be burnt alive ! 
 
 In conducting him to the flake, there 
 Was found, in one of his ftockings, a pa- 
 per in which he begged forgivenefs of God 
 for all his errors. This ought to have 
 faved him ; but no : the fentence was con- 
 
 P 2 firmed,
 
 XXXU A COMMENTARY ON 
 
 firmed, and he was executed without 
 mercy. 
 
 Such deeds are enough to make a man's 
 hair brittle with horror. Yet, where is the 
 country that hath not beheld fuch mocking 
 fpectacles ? Mankind univerfally forget that 
 they are brothers, and perfecute each other 
 even to death. Let us confole ourfelves 
 with the hope, that fuch dreadful times are 
 pailed, never more to return. 
 
 CHAP. IX. 
 
 Of Witches. 
 
 IN the year 1748, in the bifhoprick of 
 Wurtfburg, an old woman was con- 
 victed of witchcraft and burnt. This was 
 an extraordinary phenomenon in the pre- 
 fent century. But how incredible it feems, 
 that a people, who boafted of their refor- 
 mation, and of having trampled fuperftition 
 under their feet, and who flattered them- 
 felves that they had brought their reafon to 
 
 perfection -,
 
 CRIMES AND PUNISHMENTS. XXXlll 
 
 perfection ; is it not wonderful I fay, that 
 fuch a people fhould have believed in witch- 
 craft ; fhould have burnt old women accu- 
 fed of this crime, and that above a hundred 
 years after the pretended reformation of 
 their reafon ? 
 
 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 feal of the Devil is a 
 little fign upon the fldn, which renders it 
 infenfible, as we are afTured by all the de- 
 monographical civilians of thofe times. 
 1- 
 
 The Devil ordered Michelle Chaudron 
 to bewitch two young girls. She obeyed 
 her matter punctually. The parents of the 
 two girls accufing her of dealing with the 
 Devil. The girls being confronted with 
 the criminal, declared, that they felt a con- 
 
 P 2 tinual
 
 XXXI V A COMMENTARY ON 
 
 tinual prickling in fome parts of their bo- 
 dies, and that they were pofferTed. Phy- 
 ficians were called, at leaft men that pafled 
 for phyficians 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 Satani- 
 cal mark. Into one of thefe marks they 
 plunged a long needle, which was already 
 no fmall torture. Blood irTued from the 
 wound, and Michelle teftified by her cries, 
 that the part was not infenfible. The 
 judges not rinding fufficient propf that Mi- 
 chelle Chaudron was a witch, ordered her 
 to be tortured, which infallibly produced 
 the proof they wanted. The poor wretch, 
 overcome by torment, confeifed, at laft, 
 every thing they defired. 
 
 The phyficians fought again for the Sa- 
 tanical mark, and found it in a little black 
 fpot on one of her thighs. Into this they 
 plunged their needle. The poor creature, 
 exhaufted and almoft. expiring with the pain 
 of the torture, was infenfible to the needle, 
 and did not cry out. She was inftantly 
 
 con-
 
 CRIMES AND PUNISHMENTS. XXXV 
 
 condemned to be burnt ; but the world be- 
 ginning at this time to be a little more civi- 
 lized, me was previoufly ftrangled. 
 
 At this period, every tribunal in Europe 
 refounded with fuch judgments, and fire 
 and faggot were univerfally employed 
 againfr. witchcraft as well as herefy. The 
 Turks were reproached with having amongfl 
 them neither forcerers, witches, nor demo- 
 niacs ; and the want of the latter was con- 
 iidered 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, in- 
 forms us, that there have been above a hun- 
 dred thoufand witches condemned to die 
 by Chriftian .tribunals. If, to thefe lawful 
 mafTacres, we add the much fuperior num- 
 ber of heretics facrifked, our part of -the 
 globe will appear one vail fcaffold covered 
 with executioners and victims, and fur- 
 rounded by judges, guards and fpe&ators. 
 
 P 4 CHAP. ,
 
 XXXVI A COMMENTARY ON 
 
 CHAP. X. 
 
 On the PuniJJjment of Death, 
 
 IT hath long fince been obferved, that a 
 man after he is hanged is good for no- 
 thing, and that punifhments invented for 
 the good of ibciety, ought to be ufeful to 
 fociety. It is evident, that a fcore of flout 
 robbers, condemned for life to fome pub- 
 lick work, would ferve the ftate in their 
 punifhment, and that hanging them is a 
 benefit to nobody but the executioner. 
 Thieves, in England, are feldom punifhed 
 with death, but are tranfported to the colo- 
 nies. This is alfo practifed in Ruflia, 
 where not one criminal was executed dur- 
 ing the whole reign of the autocratical 
 Elizabeth. Catherine II. who hath fuc- 
 ceeded her, with much more genius, fol- 
 lows her example : yet crimes are not mul- 
 tiplied by this humanity \ and it generally 
 happens that the criminals fent to Siberia, 
 in time become honeft people. The fame 
 • is
 
 CRIMES AND PUNISHMENTS. XXXVll 
 
 i$ obferved in the Englifh colonies. We 
 are aftonifhed at the change, and yet no- 
 thing can be more natural. The condemned 
 are forced to continual labour for a liveli- 
 hood. The opportunities of vice are want- 
 ing. They marry and multiply. Oblige 
 men to work, and you certainly make them 
 honeil. It is well known, that atrocious 
 crimes are not committed in the country, 
 unlefs when there is too much holiday, and 
 confequently too much idlenefs, and confe- 
 quently too much debauchery. 
 
 The Romans never condemned a citizen 
 to death, unlefs for crimes which concern- 
 ed the fafety of the ftate. Thefe our maf- 
 ters, our firfr. legiflators, were careful of the 
 blood of their fellow citizens ; but we are 
 extravagant with the blood of ours. 
 
 -The queftion hath been frequently de- 
 bated, whether a judge ought to have the 
 power to puniih with death, when the pu- 
 nishment is undetermined by the law ? 
 This queflion was folemnly agitated in the 
 prefence of the emperor Henry VII. who 
 
 decreed
 
 XXXViil A COMMENTARY ON 
 
 decreed* that no judge mould have fuch 3 
 power. 
 
 There are fome criminal cafes which 
 are either fo new, fo complicated, and fo 
 unaccountable, as to have efcaped the pro- 
 vilion 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 criminal whom 
 they have not condemned, there are a thou- 
 fand wherein humanity mould fave whom 
 the laws have condemned to fuffer. 
 
 The fword of juftice is in our hands, 
 but we ought rather to blunt than to ihar- 
 pen 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 
 paffionately fond of fpilling human blood ; 
 fuch was JefFeries in England, and fuch in 
 France was the man whom they called 
 Conpe-tete. Nature never intended fuch 
 men for magiftrates, but for executioners. 
 * Bodin de Republica, lib. 3. c. 5.
 
 CRIMES AND PUNISHMENTS. XXXI* 
 
 CHAP. XI. 
 
 On Death Warrants. 
 
 MUST we go to the end of the world, 
 rrxuft 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 exifled; and it is alfo 
 more than four thoufand years that the 
 meaneft fubject, at the extremity of the 
 empire, hath not been executed, without 
 firffc tranfmitting 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 fentence, or in- 
 tirely acquits. 
 
 But it is unnecerTary to travel fo far for 
 .examples of this nature ; Europe will abun- 
 dantly fupply us. In England, no crimi- 
 nal is put to death, whole death-warrant is 
 not figned by the king. It is alfo practifed 
 in Germany and in moil parts of the north. 
 
 Such likewife was formerly the cuftom in 
 
 France,
 
 xl A COMMENTARY ON 
 
 France, and fuch it ought to be in all po- 
 limed nations. A fentence, at a diftance 
 from the throne, may be dictated by cabal, 
 prejudice or ignorance. Such little in- 
 trigues are unknown to monarchs, who are 
 continually unrounded by great objects. 
 The members of the fupreme council are 
 more enlightened, lefs liable to prejudice, 
 and better qualified than a provincial judge, 
 to determine whether the ftate require fe- 
 vere punifhments. In mort, when infe- 
 rior courts have judged according to the 
 letter of the law, which poffibly may be 
 rigorous, the council mitigates the fentence 
 according to the true fpirit of all laws, 
 which teaches, never to facrifice a man, but 
 in evident neceffity. 
 
 CHAP. XII. 
 
 On Torture, 
 
 ALL mankind being expofed to the at- 
 tempts of violence or perfidy, detefl 
 the crimes of which they may poiiibly be 
 the victims : all defire that the principal 
 
 offender
 
 CRIMES AND PUNISHMENTS. xli 
 
 offender and his accomplices may be pu- 
 nifhed; neverthelefs, there is a natural 
 companion in the human heart, which, 
 makes all men deteft the cruelty of tortur- 
 ing the accufer in order to extort confeflion. 
 The law has not condemed them, and yet, 
 though uncertain of their crime, you inflict 
 a punifhment more horrible than that which 
 they are to fuffer when their guilt is con- 
 firmed. " Poffibly thou mayft be innocent ; 
 " but I will torture thee that I may be fa- 
 " tisfied : not that I intend to make thee 
 " any recompence for the thoufand deaths 
 *? which I have made thee fuffer, in lieu of 
 " that which is preparing for thee." Who 
 does not fhudder at the idea ? St. Auguftin 
 oppofed fuch cruelty. The Romans tortu- 
 red their flaves only; and Quintilian re- 
 collecting that they were men, reproved the 
 Romans for fuch want of humanity. 
 
 If there were but one nation in the world 
 which had abolifhed the ufe of torture ; if 
 in that nation crimes were no more fre- 
 quent than m others ; and if that nation 
 be more enlightened and more flouriming 
 
 fince
 
 Xlii A COMMENTARY ON 
 
 fince the abolition, its example furely were 
 fufficient for the reft of the world. Eng- 
 land alone might inftruct all other nations 
 in this particular ; but England is not the 
 only 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 po- 
 litenefs, pride themfelves alfo on their hu- 
 manity ? Shall they obftinately perfift in 
 their inhumanity, merely becaufe it is an 
 ancient cuftom ? Referve at leafl fuch cru- 
 elty for the punifhment of thofe hardened 
 wretches, who mail have aflaffinated the 
 father of a family, or the father of his coun- 
 try ; but that a young perfon, who com- 
 mits a fault which leaves no traces behind 
 it, mould fuffer equally with a parricide -> 
 is not this an ufelefs piece of barbarity ? 
 
 I a m afhamed of having faid any thing 
 on this fubject, after what hath been al- 
 ready laid by the author of the EiTay on 
 Crimes and Punimments. I ought to have 
 been iatisfied with wiming, that mankind 
 
 may
 
 CRIMES AND PUNISHMENTS. xliii 
 
 may read with attention the work of that 
 friend to humanity. 
 
 CHAP. XIII. 
 Of certain fanguinary tribunals. 
 
 IS it credible, that there formerly exifted 
 a fupreme tribunal more horrible than 
 the Inquifition, and that this tribunal was 
 eflablifhed by Charlemagne ? It was the 
 judgment of Weflphalia, otherwife called 
 the Vhemic Court. The feverity, or ra- 
 ther cruelty of this court, went fo far as to 
 punifh with death, every Saxon who broke 
 his fail during Lent. The fame law was 
 alfo eflablifhed in Fra7ichc-compte y in the 
 beginning of the feventeenth century. In 
 the archives of a little place called St. 
 Claude, fituated in a remote corner of the 
 mofl mountainous part of the county of 
 Burgundy, are preferved the particulars of 
 the fentenc£ and verbal procefs of execution 
 of a poor gentleman named Claude Guillon, 
 who was beheaded on the 28th of July 
 1629. Being reduced to the utmofl po- 
 verty.
 
 xliv A COMMENTARY ON 
 
 verty, and urged by the moft intolerable 
 hunger, he eat, on a fifh day, a morfel of 
 horfe-rlefh, which had been killed in a 
 neighbouring field. This was his crime. 
 He was found guilty of facrilege. Had he 
 been a rich man, and had fpent two hun- 
 dred crowns in a fupper of fea fifh, fuffer- 
 ing the poor to die of hunger, he would 
 have been confidered as a peribn fulfilling 
 every duty. The following is a copy of 
 his fentence. " Having feen all the papers 
 " of the procefs, and heard the opinions 
 " of the doctors learned in the law, we 
 " declare the faid Claude Guillon to be 
 " truly attainted and convicted of having 
 « taken away a part of the flefh of a horfe, 
 " killed in the meadow of that town ; of 
 " having ciufed the faid rlem to be drefied, 
 
 and of eating the fame on Saturday the 
 
 31ft of March, te." 
 
 << 
 
 What infamous doctors mull: thefe 
 have been, who gave their opinions on this 
 occafion ? Was it among the Topinambous, 
 or among the Hottentots, that thefe things 
 happened ? The Vhemic Court was yet 
 
 more
 
 CRIMES AND PUNISHMENTS. %\f 
 
 more horrible. Delegates from this court 
 were fecretly fpread over all Germany, 
 taking: informations unknown to the ac- 
 cufed, who were condemned without be- 
 ing heard ; and frequently, in want of an 
 executioner, the youngeft judge perform- 
 ed the office himfelf *. It was requifite, 
 in order to be fafe from the aiTaffination of 
 this court, to procure letters of exemption 
 from the emperor; and even thefe were 
 fometimes ineffectual. This chamber of 
 aflafiins was not entirely aboliilied till the 
 reign of Maximilian I. It ought to have 
 been diifolved in the blood of its members. 
 The Venetian Council of Ten was, in 
 comparifon with this, a court of mercy. 
 
 What mail we think of fuch horrid 
 proceedings ? Is it fufhcient to bewail hu- 
 manity ? There were fome cafes that cried 
 aloud for vengeance. 
 
 * See the excellent abridgment of the Chronologi- 
 cal hiftory and laws of Germany, an. 803. 
 
 , CL CHAP.
 
 Xlvi A COMMENTARY ON 
 
 CHAP. XIV. 
 
 On the Difference between political and 
 natural Laws. 
 
 I Call natural 'laws, thofe which nature 
 dictates in all ages, to all men, for the 
 maintenance of that juftice which (he (fay 
 what they will of her) hath implanted in 
 our hearts. Theft, violence, homicide, 
 ingratitude to beneficent parents, perjury 
 againft innocence, confpiracies againft one's 
 country, are crimes that are univerfally and 
 juftly punifhed, though with more or lefs 
 feverity. 
 
 I call political laws, thofe that are 
 made in compliance with prefent neceffity, 
 whether it be to give usability to the go- 
 vernment, or to prevent misfortune. For 
 example : being apprehenfive that the ene- 
 my may receive intelligence from the inha- 
 bitants of the city, you mut the gates, and 
 forbid any one to pafs the ramparts on pain 
 
 of death. 
 
 Or,
 
 CRIMES AND PUNISHMENTS, xlvil 
 
 Or, fearful of a new feci: of people, 
 who publickly difclaim all obedience to 
 their fovereign, and fecretly confult of 
 means to diveft themfelves of that obedi- 
 ence ; who preach, that all men are equal, 
 and that obedience is due to God alone ; 
 who, accufing the reigning feci: of fuper- 
 ftition, mean to deftroy that which is con- 
 fecrated by the ftate • you denounce death 
 againft thofe who, in publickly dogmatizing 
 in favour of this feci, may inftigate the peo- 
 ple to revolt. 
 
 Or, two ambitious princes contend for 
 a crown : the (trongeft gains the prize, and 
 punifhes with death the partizans of the 
 weaker. The judges become the inftru- 
 ments of vengeance of the new fovereign, 
 and the fupports of his authority. 
 
 When Richard the third, the murderer 
 of his two nephews, was acknowledged 
 king of England, the jury found fir Wil- 
 liam Collinburn guilty of having written* 
 to a friend of the duke of Richmond, 
 who was at that time raifing an army, and 
 
 Q^2 who
 
 Xlviii A COMMENTARY ON 
 
 who afterwards reigned by the name of 
 Henry VII. They found two ridiculous 
 lines of Sir William's writing, which were 
 furlicient to condemn him to a horrible 
 death. Hiftory abounds with fuch exam- 
 ples of juftice. 
 
 The right of reprifal is alfo a law a- 
 dopted by nations. For example, your 
 enemy has hanged one of your brave cap- 
 tains, for having defended an old ruined 
 caftle againft a whole army. One of his 
 captains falls into your hands; he is a 
 worthy man, and you efteem him ; never- 
 thelefs you hang him by way of reprifal. 
 You fay it is the law : that is to fay, be- 
 cause your enemy has been guilty of an 
 enormous crime, you muft be guilty of 
 another. 
 
 These political fanguinary laws exifl 
 but for a time; they are temporary, be- 
 caufe they are not founded in truth* 
 They refemble the neceffity which, in cafes 
 of extreme famine, obliges people to eat 
 each other : they ceafe to eat m^n as fobn a$ 
 bread is to be had.
 
 CRIMES AND PUNISHMENTS. X^X 
 
 CHAP. XV. 
 
 On the Crime of High Treafon. On Titus 
 Gates, and on the Death of Auguftin de 
 ' Thou. 
 
 HIGH Treafon is an offence com- 
 mitted againfl the fecurity of the 
 commonwealth, or of the king its repre- 
 fentative. It is confide red as parricide, 
 and therefore ought not to be extended to 
 offences which bear no analogy to that 
 crime. In making it High Treafon to 
 commit a theft 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. 
 
 In our ideas of great crimes, there mould 
 be nothing arbitrary. If a theft from, Or 
 imprecation againfl, a father be confidered 
 as parricide, you break the bond of filial 
 piety ; the fon will then regard his parent 
 as a terrible moniler. Every exaggeration 
 in a law tends to its deflru&ion. 
 
 CL 3 In
 
 1 * A COMMENTARY ON 
 
 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 Oates, being legally in- 
 terrogated in the Houfe of Commons, and 
 having, upon his oath, declared that he 
 had related the whole truth, yet afterwards 
 accufed the fecretary of the duke of York, 
 and feveral others of high treafon, and 
 his information was admitted. He like- 
 wife fwore before the king's council, that 
 he had not feen the fecretary, and after- 
 wards, that he had. Notwithstanding thefe 
 illegalities, and contradictions, the fecretary 
 .was executed. 
 
 The fame Titus Oates and another wit- 
 nefs depofed, that fifty Jefuits had con- 
 fpired to affaiiinate Charles II. and that 
 they had feeii commiffions, Signed by fa- 
 ther Oliva, general of the Jefuits, for the 
 officers that were to command an army of 
 rebels. This evidence was fufficient to 
 authorize the tearing out the hearts of fe- 
 veral people, and darning them in their 
 
 faces.
 
 CRIMES AND PUNISHMENTS. l\ 
 
 faces. But, ferioufly, can two witnefles be 
 thought fufficient to convict a man whom 
 they have a mind to deftroy ? At leaft one 
 would imagine they ought not to be noto- 
 rious villains ; neither ought that, which 
 they depofe, to be improbable. 
 
 Let us fuppofe that two of the moft 
 upright magiftrates in the kingdom were 
 to accufe a man of having confpired with 
 the Mufti, to circumcife the whole Coun- 
 cil of State, the Parliament, the Arch- 
 bifhop, and the Sorbonne ; in vain theie 
 two magiftrates might fwear, that they had 
 feen the letters of the Mufti : it would na- 
 turally be fuppofed that they were wrong 
 in their heads. It was equally ridiculous 
 to imagine, that the general of the Jefuits 
 mould raife an army in England, as that 
 the Mufti intended to circumcife the court 
 of France. But unhappily, Titus Oates 
 was believed ; that there might remain 
 no fpecies of atrocious folly, which hath 
 not entered into the heart of man. 
 
 The laws of England do not confider 
 
 Q^4 as
 
 Ill A COMMENTARY ON 
 
 as guilty of confpiracy, thofe who are pri- 
 vy to it, and do not inform. They fup- 
 pofe the informer as infamous as the con- 
 fpirator is culpable. In France, if any 
 one be privy to a confpiracy and does not 
 reveal it, he is punifhed with death. Lewis 
 XI. againfl whom confpiracies were fre- 
 quent, made this law; a law, which a 
 Lewis XII. or a Henry IV. could never 
 have imagined. It not only obliges an ho- 
 neft man to divulge a crime which, by his 
 refolution and advice, he might poffibly 
 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 conviction. 
 
 This was exactly the cafe of the truly 
 refpectable Auguftin de Thou, counfellor 
 of ftate, and fon of the only good hifiorian 
 of which France can boatt ; equal to Guic- 
 ciardini in point of abilities, and perhaps 
 fuperior in point of impartiality. 
 
 This confpiracy was againfl cardinal 
 de Richelieu, rather than againfl Lewis 
 
 XIII.
 
 CRIMES AND PUNISHMENTS. HU 
 
 XIII. The defign was not to betray France 
 to any enemy ; for the king's brother, who 
 was the principal author of the plot, could 
 never intend to betray a kingdom to which 
 he was the preemptive 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 duke of Bouillon, 
 fovereign prince of Sedan, and of the grand 
 equerry d'Effiat St. Mars, had communi- 
 cated their intention to de Thou, who im- 
 mediately went to St. Mars, and endea- 
 voured todirTuade him from theenterprize. 
 If he had informed againft him, he had no 
 proof, and muft inevitably have fallen a 
 facrifice to the refentment of the prefump- 
 tive heir, of a fovereign prince, of the 
 king's favourite, and to public execration. 
 In mort, he would have been punifhed as 
 a malignant calumniator. 
 
 The chancellor Seguier was convinced 
 of this in confronting de Thou with the 
 
 grand
 
 llV A COMMENTARY ON 
 
 grand equerry, when de Thou afked the 
 latter the following queftion : "Do you 
 hot remember, fifj that there never pafled 
 a day, in which 1 did not endeavour to 
 diffuade you from the attempt V St. Mars 
 acknowledged it to be true. So that de 
 Thou deferved a recompence, rather than 
 death, from a tribunal of equity. He cer- 
 tainly deferved to have been faved by car- 
 dinal 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 partici- 
 pation of the faid confpiracy." It does not 
 fay, for not having revealed. So that his 
 crime was, his having been informed of a 
 crime; and he was punifhed for having 
 had ears and eyes. 
 
 ,All that we can fay in extenuation of 
 this feverity, is that it was not the ad: of 
 juftice herfelf, but of a delegated power. 
 The letter of the law was poiitive ; but I 
 appeal not only to the lawyers, but to all 
 mankind, whether the fpirit of the law 
 
 was
 
 CRIMES AND PUNISHMENTS. lv 
 
 was not perverted ? It is a melancholy ab«* 
 furdity, that a fmall number of people 
 mould condemn as criminal, a man judged 
 innocent by a whole nation, and worthy 
 their efteem ! 
 
 CHAP. XVI. 
 
 On religious Confeffion, 
 
 JAURIGNY and Balthazar Gerard, who 
 affaffinated William I. prince of Orange ; 
 Clement, the Dominican, Chatel, Ravaillac, 
 and all the other parricides of thofe times, 
 went to confeffion before they committed 
 their crimes. Fanaticifm, in that deplora- 
 ble age, was carried to fuch excefs, that 
 confeffion was an additional engagement to 
 the perpetration of villainy ; an engagement 
 deemed facred, becaufe confeffion is a fa- 
 crament. 
 
 St rad a himfelf fays, that Jaurigny non 
 ante f acinus aggredi fujiinuit quam expiatam 
 nccis animam apud Dominicanum facer dotem 
 ccckfti panefnnaverit. 
 
 It
 
 Ivi A COMMENTARY ON 
 
 It appears in the interrogatory of Ra- 
 vaillac, that coming from the Feuillants, 
 and going towards the Jefuits college, he 
 addrerTed himfelf to the Jefuit d'Aubigny ; 
 that after talking to him of feveral appari- 
 tions which he had feen, he mewed him a 
 knife, on the blade of which was engraved 
 a heart and a crofs ; and that he faid, this 
 heart Jignifies, that the heart of the king 
 jhould be induced to make war again/} the 
 Huguenots. If this d'Aubigny had informed 
 the king of thefe words, and defcribed the 
 man, the ben: of kings might poflibly have 
 efcaped arTaffination. 
 
 On the 20th of Auguft, 1610, three 
 months after the death of Henry IV. whole 
 wounds were yet bleeding in the hearts of 
 his fubjects, the advocate-general Servin, 
 of illunxious memory, required that the 
 Jefuits mould be obliged to fign the four 
 following articles. 
 
 I. That the council is fuperior to the 
 pope. 
 
 II. That
 
 CRIMES AND PUNISHMENTS. lvii 
 
 II. That the pope cannot deprive the 
 king of any of his rights, by excommuni- 
 cation. 
 
 III. That the ecclefiaftics are, like 
 other people, entirely fubjecl: to the king, 
 
 IV. That a prieft who, by confeffion, 
 is apprized of a confpiracy againft the king 
 or the date, mould reveal it to the magis- 
 trates. 
 
 On the 2 2d, the parliament publifhed 
 an arret, forbidding the Jefuits to inftruct 
 youth, until they had ligned thofe four ar- 
 ticles. But the court of Rome was at that 
 time fo powerful, and that of France fo 
 weak, that the arret was difregarded. 
 
 It is worth notice, that this court of 
 Rome, which would not fuffer confeffion 
 to be revealed when the life of a Sovereign 
 was concerned, obliged the confefTors to 
 inform the inquifition, in cafe any female 
 mould accufe another prieft of having fedu- 
 ced or attempted to feduce her. Paul IV, 
 Pius IV, Clement VIII, and Gregory XV, 
 
 ordered
 
 lviii A COMMENTARY ON 
 
 ordered this revelation. It was a dange- 
 rous fnare both for the confeffor and the pe- 
 nitent. It was converting a facrament into 
 a regifter of accufations and facrilege ; for 
 by the antient canons, and particularly by 
 the Lateran council, under Innocent IIL 
 every confeflor who reveals confeffion, of 
 whatfoever nature it may be, mail be inter- 
 dicted and imprifoned for life. 
 
 Thus we fee four different popes, in 
 the fixteenth and feventeenth centuries, or- 
 dering the revelation of a fin of impurity, 
 and forbidding it in cafes of parricide. A 
 woman confeffes, or fuppofes in her confef- 
 fion to a Carmelite, that a Cordelier at- 
 tempted to feduce her -, the Carmelite muft 
 impeach the Cordelier. A fanatical anaffin, 
 believing that he mall ferve God by killing 
 his prince, confults his confeffor on this cafe 
 of confcience ; the confeffor is guilty of fa- 
 crilege if he fave the life of his fovereign. 
 
 This horrible abfurdity is one of the 
 unhappy confequences of the continual op- 
 pofition, which hath fubfiited for fo many 
 
 ages x
 
 CRIMES AND PUNISHMENTS. llX 
 
 ages, between the Ecclefiaftical and Civil 
 Law. Mankind have in a thoufand inftan- 
 ces been fufpended between the crimes of 
 facrilege and high treafon, and the distinc- 
 tions of right and wrong have been buried 
 in a chaos, from which they are not yet 
 emerged. 
 
 Confession of fins hath been autho- 
 rized in all times and in all nations. The 
 antients accufed themfelves in the myfteries 
 of Orpheus, of Ifis, of Ceres, of Samo- 
 thrace. The Jews conferTed their fins on 
 the day of folemn expiation, and ftill con- 
 tinue the fame practice. Each penitent 
 ..chufes his confeffor, who becomes his peni- 
 tent in turn, and each receives from his 
 companion thirty-nine lafhes whilft he is 
 repeating, three times, the formule of con- 
 feffion, which confirts only in thirteen words, 
 and which confequently rnuft be general. 
 
 None of thefe confeflions were particu- 
 lar, and confequently could never ferve for 
 a pretence to thofe fecret confutations, .un- 
 der the fhadow of which fanatical penitents 
 
 think
 
 Ixii A COMMENTARY ON 
 
 What is the refult ? Mailers, to avoid 
 opprobrium, content themfelves with dis- 
 charging the thief, who afterwards fteals 
 from another, and gradually becomes fa*- 
 miliar with difhonefty. The punifhment 
 being the fame for a fmall theft as for a 
 greater, he will naturally fteal as much as 
 he can, and at laft will not fcruple to turn 
 anarlin to prevent detection. 
 
 If, on the contrary, the punifhment be 
 proportioned to the crime; if thofe who 
 are guilty of a breach of truft be condemn- 
 ed to labour for the public, the matter will 
 not hefitate to bring the offender to juftice, 
 and the crime will be lefs frequent : fo true 
 it is, that rigorous laws are often produc- 
 tive of crimes. 
 
 CHAP. XIX. 
 
 On Suicide. 
 
 T 
 
 HE celebrated Du Verger de Hau- 
 ranne, Abbe de St. Cyran, one of the 
 founders of Port Royal, in the year 1608, 
 
 wrote
 
 CRIMES AND PUNISHMENTS. Ixiil 
 
 wrote a treatife on filicide, which is become 
 one of the fcarceft books in Europe. 
 
 " The Decalogue," fays that author, 
 " forbids us to commit murder ; in which 
 precept, felf-murder feems no lefs to be un- 
 derftqod, than the murder of another : if, 
 therefore, there be cafes in which it is law- 
 ful to kill another, there may be cafes alfo 
 wherein fuicide may be allowed. But a 
 man ought not to attempt his own life, till 
 after having confulted his reafon. Publick 
 authority, which is the reprefentative of 
 God, may difpofe of our lives. The rea- 
 fon of man may alfo reprefent that of the 
 Deity, it being a ray of the eternal light." 
 
 St. Cyran extends this argument to a 
 great length, which after all is a mere fo- 
 phifm. But when he comes to exemplify, 
 he is not quite fo ealily anfwered. " A 
 man may kill himfelf, 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 
 juilice condemn a Codrus, or a Curtius. 
 
 R 2 What
 
 1XV1 A COMMENTARY ON 
 
 CHAP. XX. 
 
 On a certain Species of Mutilation, 
 
 WE find, in the Pandect, a law ot 
 Adrian, which denounces death to 
 the phyficians who mould make an eunuch, 
 either by caftration or by bruiting the tejies. 
 By the fame law, the pofleffions of thofe 
 who fuffered caftration were confiscated. 
 Origen ought certainly to have been pu- 
 nifhed, who fubmitted to this operation, 
 from the rigid interpretation of that paf- 
 fage in St. Matthew, which fays, T'here be 
 eunuchs, which have made themfelves eunuchs 
 for the kingdom of heaven s fake. 
 
 Things changed in the reigns of fuc- 
 ceeding emperors, who adopted the luxury 
 of Afia j efpecially in the lower empire of 
 Conftantinople, where eunuchs became pa- 
 triarchs and generals of armies. 
 
 In thefe our own times, it is the cuftom 
 at Rome to caflrate young children, to ren- 
 • der
 
 CRIMES AND PUNISHMENTS. IxV 
 
 der them worthy of being muficians to his 
 holinefs ; Co that Cajlrato, and Mujico del 
 Papa, are rynonimous. It is not long fince 
 you might have fecn at Naples, written in 
 great letters over the doors of certain bar- 
 bers, Quiji caflrano mar avigliofament e i putt : 
 here boys are caftrated in the beft manner. 
 
 CHAP. XXI. 
 
 Cn Confifcation. 
 
 IT is a maxim received at the bar, that 
 he who forfeits his I fe , forfeits his ejfeffis-, 
 a maxim which prevails in thofe countries 
 where cuftom ferves inftead of law. So 
 that, as we have already obferved, the 
 children of one who puts an end to his own 
 life, are condemned to perifh with hunger, 
 equally with thofe of an arTaffin. Thus in 
 every cafe, a whole family is punimed 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 
 
 R 4 caverqt
 
 lxviii A COMMENTARY ON 
 
 cavern or a defart, his wife and children are' 
 reduced to beg their bread. 
 
 That law which confifts in depriving 
 an orphan of fupport, and in giving to one 
 man the poneffions of another, was un- 
 known in the times of the Roman repub- 
 lick. It was rirft introduced by Sylla, in 
 his profcriptions, whofe example one would 
 fcarce have thought worthy imitation. Nor 
 indeed was this law adopted by Caefar, by 
 Trajan, or by Antoninus, whofe name is 
 ftill pronounced with refpect by all nations ; 
 and under Juftinian, conrifcation took place 
 only in cafe of high treafon. 
 
 It feems that in the times of feudal anar- 
 chy, princes and lords not being very rich, 
 fought to encreafe their revenue by the 
 condemnation of their fubjecls. Their 
 laws being arbitrary, and the Roman jurif- 
 prudence unknown, cuftoms either cruel or 
 ridiculous' prevailed. But now that the 
 power of princes is founded on immenfe 
 and certain revenues, there can be no need 
 
 to
 
 CRIMES AND PUNISHMENTS. lxiX 
 
 to fwell their treasuries with the inconfider- 
 able wreck of an unfortunate family. 
 
 In countries where the Romanrlaw is 
 eftablifhed, connfcation is not admitted, ex- 
 cept within the jurifdiction of the parlia- 
 ment of Touloufe. It was formerly the law 
 at Calais, but was abolifhed by the Englifh, 
 whilft that city was in their poiTelTion. It 
 is ftrange, that the inhabitants of the capi- 
 tal mould be fubject to a feverer law than 
 the people in the country : but laws, like 
 the cottages in a village, were generally 
 eftablifhed by accident, and without atten- 
 tion to the regularity of a general plan. 
 
 Who would believe that, in the year 
 1673, in the moil brilliant period of the 
 kingdom of France, the advocate-general, 
 Omer Talon, did , in full parliament, ex- 
 prels himfelf, on the fubjed of a young lady 
 named Canillac, in the following words. 
 
 " God fays, in the 13th chapter of 
 " Deuteronomy, If thou corned into a city 
 " where idolatry reigneth, thou malt furely 
 
 " Imite
 
 1XX A COMMENTARY ON 
 
 <*'fmite the inhabitants of that city with 
 " the edge of the fword, deftroyingit utter- 
 " \y and all that is therein. And thou malt 
 " gather all the fpoil thereof into the midft 
 «' bf the ftreet, and malt burn with fire the 
 '* city, and all the fpoil thereof, for the Lord 
 " thy God ; and it mall be an heap for ever; 
 " and there fhall cleave nought of the 
 " curfed thing to thine hand." 
 
 <e In like manner, in the crime of high 
 treafon, the children were deprived of their 
 inheritance, which became forfeited to the 
 king. Naboth being profecuted quia ma/e- 
 dixerat regi, king Ahab took polferlion of 
 his effects , David being informed that 
 Mephtboirieth had rebelled, gave all his 
 ponerTions to Ziba who brought him the 
 news i tua fmt omnia que? fuerunt Mephi- 
 bofieth" 
 
 The queftion in difpute was, who mould 
 
 inherit the paternal eftate of Mile, de Ca- 
 
 nillac, which having been conhTcated, was 
 
 , abandoned by "the king to a lord of the 
 
 treafury, and afterwards bequeathed by 
 
 * him
 
 CRIMES AND PUNISHMENTS. lxXl 
 
 him to the teftatrix. In this caufe con- 
 cerning a girl of Auverge it was, that an 
 advocate-general referred to Ahab, king 
 of a part of PalefHne, who confifcated the 
 vineyard of Naboth, after afTaffinating the 
 owner with the fword of juftice: an action 
 fo abominable, as to have parTed into a pro- 
 verb, intended to infpire mankind with de- 
 legation for fuch acts of tyranny. There 
 was certainly no analogy between the vine- 
 yard of Naboth and the inheritance of Mile. 
 de Canillac ; nor hath the murder and con- 
 fifcation of the porTeffions of Mephibofheth, 
 the grandfon of Saul, and fon of Jonathan, 
 the friend and protector of David, the leaft 
 affinity with the will of this lady. 
 
 It was with fuch pedantry, with fuch 
 foolifh quotations foreign to the fubject, 
 with fuch ignorance of the firil principles 
 of human nature, with 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 t<5 tell him were 
 fuperfluous. 
 
 CHAP.
 
 lxxii A COMMENTARY ON 
 
 CHAP. XXII. 
 
 On Criminal Procedure, and other Forms. 
 
 IF, in France, it fhould ever happen that 
 the laws of humanity foften fomeof our 
 rigorous cuftoms, without facilitating the 
 commimon of crimes, we may hope for 
 reformation in thofe legal proceedings, 
 wherein our legiflators feem to have been 
 influenced by too much feverity. Our cri- 
 minal procedure appears in many inftances 
 to point only at the deftrudtion of the ac- 
 cufed. It is the only law which is uniform 
 throughout the whole kingdom; a law 
 which ought certainly to be no lefs favour- 
 able to the innocent, than terrible to the 
 guilty. 
 
 In England a man may recover damages 
 for falfe imprifonment. In France, on the 
 contrary, an innocent pcrfon, who has had 
 the misfortune to be thrown into a dun- 
 geon and tortured v ,almofl to death, has no 
 confolation, no damages to hope for, no 
 
 action
 
 CRIMES AND PUNISHMENTS. Ixxiit 
 
 action againft any one ; and to add to his 
 misfortune, he has for ever loft his repu- 
 tation. Why ? Becaufe his joints have 
 been diilocated; a circumftance which 
 ought rather to infpire companion and re- 
 fpect. The difcovery of crimes, fay they, 
 requires feverity ; it is a war of human juf- 
 tice againft iniquity. But there is gene- 
 rofity and compalfion even in war. The 
 brave are ever companionate -, and fhall the 
 law delight in barbarity ? 
 
 Let us compare the criminal procedure 
 of the Romans with ours. With them, 
 the evidence were heard publickly in pre- 
 fence of the accufed, who might anfwer or 
 interrogate them, or employ counfel. This 
 procedure was open and noble ; it breathed 
 Roman magnanimity. 
 
 With us, all is conducted in fecret. A 
 lingle judge, only attended by his clerk, 
 hears each witnefs feparately. This cuftom, 
 eftablilhed by Francis I. was confirmed by 
 the commiffioners who were employed to 
 digeft the ordinance of Lewis XIV. in 1670; 
 
 which
 
 lxXlV A COMMENTARY ON 
 
 which confirmation was entirely owing to 
 a miftake. They imagined, in reading the 
 code de teftibus, that the words, tejies intrare 
 judicii fecretum, fignified that the witnefTes 
 were examined in private ; but fecretum 
 means here the chamber of the judge. In- 
 trare fecretum, if intended to lignify private 
 interrogation, would be falfe Latin. This 
 part of our law therefore is founded on a 
 folecifm. 
 
 The evidence in thefe cafes are com- 
 monly the dregs of the people, whom the 
 judge may, in fuch private examination, 
 make fay whatfoever he pleafes. They are 
 examined a fecond time, but ftill privately ^ 
 and if after this re-examination, they re- 
 tract from their depofition, or vary in any- 
 material circumftance, they are punifhed as 
 falfe evidence. So that if a fimple honeft 
 fellow, recollecling that he has faid too 
 much, that he mifunderftood the judge, or 
 the judge him, revoke his depofition from 
 a principle of juftice, he is punifhed as a 
 reprobate. The natural confequence of this 
 is, that men will confirm a falfe tefUmony, 
 
 rather
 
 CRIMES AND PUNISHMENTS. lxXV 
 
 rather than expofe themfelves, for their 
 honefty, to certain punifhment. 
 
 The law feems to oblige the magiftrate 
 to be the enemy of the accufed, rather than 
 his judge ; it being left in the power of 
 the magiftrate to confront the evidence 
 with the accufed, or not, as he mail think 
 proper. Amazing ! that fo neceffary a 
 part of the procedure mould be left unde- 
 termined. 
 
 A man being fufpedled of a crime, 
 knowing that he is denied the benefit of 
 counfel, flies his country ; a ftep to which 
 he is encouraged by every maxim of the 
 law. But he may be condemned in his 
 abfence, whether the crime be proved or 
 not. Strange laws ! If a man be charged 
 with owing a fum of money, before he can 
 be condemned to pay the demand, it is 
 required that the debt be proved ; but if 
 his life be in queftion, he may be con- 
 demned, by default, without any proof of 
 the crime. Is money then of more im- 
 portance than life ? O ye judges and legis- 
 lators !
 
 lxxvi A COMMENTARY ON 
 
 lators ! Confult the pious Antoninus, and 
 the good Trajan : they fuffered not the ab- 
 £ent to be condemned. 
 
 Do your laws then allow the privilege 
 of counfel to an extortioner, or a fraudu- 
 lent bankrupt, and refufe it to one who 
 may pofhbly be a very honefr. and honour- 
 able man ? If there ever were an inffance 
 of innocence being juftified by means of 
 counfel, the law, which deprives the accufed 
 of that benefit, is evidently unjull:. 
 
 The parliament of Touloufe hath a 
 very lingular cuftom relative to the vali- 
 dity of evidence. In other places demi- 
 proofs are admitted, which is a palpable 
 abfurdity, there being no fuch thing as 
 demi-truth ; but at Touloufe, they admit 
 of quarters, and eighths of a proof. For 
 ihftance, an hear-fay may be confidered as 
 a quarter, and another hear-fay, more 
 vague than the former, as an eighth : fo 
 that eight hear-fays, which in facl: are no 
 ether than the echo of a groundlefs report, 
 
 con-
 
 CRIMES AND PUNISHMENTS. Ixxvii 
 
 conftitute a full proof. Upon this prin- 
 ciple it was, that poor Calas was condemn- 
 ed to the wheel. 
 
 CHAP. XXIII. 
 
 The Idea of Reformation. 
 
 MAGISTRATES are in themfelves 
 fo refpectable, that the inhabitants 
 of the only country in which they are ve- 
 nal, fincerely pray to be delivered from 
 this cuftom : they wifh that the civilian 
 may by his merit eftablifh that juftice, 
 which in his writings he hath fo nobly 
 defended. We may then poflibly hope to 
 fee a regular and uniform fyftem of laws. 
 
 Shall the law of the provinces be al- 
 ways at variance with the law in the ca- 
 pital ? Shall a man be right in Brittany, 
 and wrong in Languedoc ? Nay, there are 
 as many laws as there are towns ; and even 
 in the fame parliament, the maxims of 
 
 one
 
 lxxviii A COMMENTARY ON 
 
 one chamber are not the maxims of an- 
 other. 
 
 What aftoniming contrariety in the 
 laws of one kingdom ! In Paris a man, 
 who has been an inhabitant during one 
 year and a day, is reputed a citizen. In 
 Franc be-Compte a freeman who, during a 
 year and a day, inhabits a houfe in mort- 
 main, becomes a flave ; his collateral heirs 
 are excluded from inheriting his foreign 
 acquiiitions, and even his children are 
 deprived of their inheritance, if they 
 have been a year abfent from the houfe 
 in which the father died. This province 
 is called Franche, but where is their free- 
 dom ? 
 
 Were we to attempt to draw a line 
 between civil authority and ecclefiafHcal 
 cuftoms, what endlefs difputes would en- 
 fue ? In fhort, to what fide foever we turn 
 our eyes, we are prefented with a confu- 
 fed fcene of contradictions, uncertainty, 
 hardmips, and arbitrary power. In the 
 
 prefent
 
 CRIMES AND PUNISHMENTS. lxxix 
 
 prefent age, we feem univerfally aiming at 
 perfection ; let us not therefore neglect to 
 perfect the laws on which our lives and 
 fortunes depend. 
 
 FINIS.