论犯罪与刑罚(英文版)
论犯罪与刑罚
Of Crimes and Punishments
Cesare Bonesana, Marchese Beccaria, 1738-1794
Originally published in Italian in 1764
Dei delitti e delle pene. English: An essay on crimes and punishments.
Written by the Marquis Beccaria, of Milan. With a commentary attributed to Monsieur de Voltaire. Philadelphia: Printed and sold by R. Bell, next door
to St. Paul's Church, in Third-Street. MDCCLXXVIII. [1778]
Translated from the French by Edward D. Ingraham. Second American edition. Philadelphia (No. 175, Chesnut St.): Published by Philip H. Nicklin: A.
Walker, printer, 24, Arch St., 1819.
Table of Contents
Introduction.
Chapter 01 Of the Origin of Punishments.
Chapter 02 Of the right to punish.
Chapter 03 Consequences of the foregoing Principles.
Chapter 04 Of the Interpretation of Laws.
Chapter 05 Of the Obscurity of Laws.
Chapter 06 Of the Proportion between Crimes and
Punishments.
Chapter 07 Of estimating the Degree of Crimes.
Chapter 08 Of the Division of Crimes.
Chapter 09 Of Honour.
Chapter 10 Of Duelling.
Chapter 11 Of crimes which disturb the Public Tranquillity.
Chapter 12 Of the Intent of Punishments.
Chapter 13 Of the Credibility of Witnesses.
Chapter 14 Of Evidence and the Proofs of a Crime, and of the
Form of Judgment.
Chapter 15 Of secret Accusations.
Chapter 16 Of Torture.
Chapter 17 Of pecuniary Punishments.
Chapter 18 Of Oaths.
Chapter 19 Of the Advantage of immediate Punishment.
Chapter 20 Of Acts of violence.
Chapter 21 Of the Punishment of the Nobles.
Chapter 22 Of Robbery.
Chapter 23 Of Infamy considered as a Punishment.
Chapter 24 Of Idleness.
Chapter 25 Of Banishment and Confiscation.
Chapter 26 Of the Spirit of Family in States.
Chapter 27 Of the Mildness of Punishments.
Chapter 28 Of the Punishment of Death.
Chapter 29 Of imprisonment.
Chapter 30 Of Prosecution and Prescription.
Chapter 31 Of Crimes of difficult Proof.
Chapter 32 Of Suicide.
Chapter 33 Of Smuggling.
Chapter 34 Of bankrupts
Chapter 35 Of Sanctuaries.
Chapter 36 Of Rewards for apprehending or killing Criminals.
Chapter 38 Of suggestive Interrogations.
Chapter 39 Of a particular Kind of Crimes.
Chapter 40 Of false Ideas of Utility.
Chapter 41 Of the Means of preventing Crimes.
Chapter 42 Of the Sciences.
Chapter 43 Of Magistrates.
Chapter 44 Of rewards.
Chapter 45 Of Education.
Chapter 46 Of Pardons.
Chapter 47 Conclusion.
Introduction.
In every human society, there is an effort continually tending to confer on
one part the height of power and happiness, and to reduce the other to the extreme of weakness and misery. The intent of good laws is to oppose this effort, and to diffuse their influence universally and equally. But men
generally abandoned the care of their most important concerns to the
uncertain prudence and discretion of those whose interest it is to reject
the best and wisest institutions; and it is not till they have been led into
a thousand mistakes in matters the most essential to their lives and
liberties, and are weary of suffering, that they can be induced to apply a
remedy to the evils with which they are oppressed. It is then they begin to conceive and acknowledge the most palpable truths which, from their very simplicity, commonly escape vulgar minds, incapable of analysing objects, accustomed to receive impressions, without distinction, and to be determined rather by the opinions of others than by the result of their own
examination.
If we look into history we shall find that laws, which are, or ought to be, conventions between men in a state of freedom. have been, for the most part the work of the passions of a few, or the consequences of a fortuitous or temporary necessity; not dictated by a cool examiner of human nature, who knew how to collect in one point the actions of a multitude, and had this
only end in view, the greatest happiness of the greatest number. Happy are those few nations who have not waited till the slow succession of human vicissitudes should, from the extremity of evil, produce a transition to
good; but by prudent laws have facilitated the progress from one to the
other! And how great are the obligations due from mankind to that
philosopher, who, from the obscurity of his closet, had the courage to
scatter among the multitude the seeds of useful truths, so long unfruitful!
The art of printing has diffused the knowledge of those philosophical
truths, by which the relations between sovereigns and their subjects, and between nations are discovered. By this knowledge commerce is animated, and there has sprung up a spirit of emulation and industry, worthy of rational beings. These are the produce of this enlightened age; but the cruelty of punishments, and the irregularity of proceedings in criminal cases, so
principal a part of the legislation, and so much neglected throughout
Europe, has hardly ever been called in question. Efforts, accumulated
through many centuries, have never yet been exposed by ascending to general principles; nor has the force of acknowledged truths been ever opposed to
the unbounded licentiousness of ill-directed power, which has continually produced so many authorised examples of the most unfeeling barbarity. Surely, the groans of the weak, sacrificed to the cruel ignorance and
indolence of the powerful, the barbarous torments lavished, and multiplied
impossible, the filth and horrors of a prison, increased by the most cruel tormentor of the miserable, uncertainty, ought to have roused the attention of those whose business is to direct the opinions of mankind.
The immortal Montesquieu has but slightly touched on this subject. Truth, which is eternally the same, has obliged me to follow the steps of that
great man; but the studious part of mankind, for whom I write, will easily distinguish the superstructure from the foundation. I shall be happy if,
with him, I can obtain the secret thanks of the obscure and peaceful disciples of reason and philosophy, and excite that tender emotion in which sensible minds sympathise with him who pleads the cause of humanity.
Of the Origin of Punishments.
Laws are the conditions under which men, naturally independent, united themselves in society. Weary of living in a continual state of war, and of enjoying a liberty which became of little value, from the uncertainty of its duration, they sacrificed one part of it, to enjoy the rest in peace and security. The sum of all these portions of the liberty of each individual constituted the sovereignty of a nation and was deposited in the hands of the sovereign, as the lawful administrator. But it was not sufficient only
to establish this deposit; it was also necessary to defend it from the usurpation of each individual, who will always endeavour to take away from the mass, not only his own portion, but to encroach on that of others. Some motives therefore, that strike the senses were necessary to prevent the despotism of each individual from plunging society into its former chaos. Such motives are the punishments established, against the infractors of the laws. I say that motives of this kind are necessary; because experience shows, that the multitude adopt no established principle of conduct; and because society is prevented from approaching to that dissolution, (to which, as well as all other parts of the physical and moral world, it
naturally tends,) only by motives that are the immediate objects of sense, and which being continually presented to the mind, are sufficient to counterbalance the effects of the passions of the individual which oppose the general good. Neither the power of eloquence nor the sublimest truths are sufficient to restrain, for any length of time, those passions which are excited by the lively impressions of present objects.
Of the right to punish.
Every punishment which does not arise from absolute necessity, says the great Montesquieu, is tyrannical. A proposition which may be made more general thus: every act of authority of one man over another, for which
there is not an absolute necessity, is tyrannical. It is upon this then that
the sovereign's right to punish crimes is founded; that is, upon the
necessity of defending the public liberty, entrusted to his care, from the usurpation of individuals; and punishments are just in proportion, as the liberty, preserved by the sovereign, is sacred and valuable.
Let us consult the human heart, and there we shall find the foundation of the sovereign's right to punish; for no advantage in moral policy can be lasting which is not founded on the indelible sentiments of the heart of man. Whatever law deviates from this principle will always meet with a resistance which will destroy it in the end; for the smallest force
continually applied will overcome the most violent motion communicated to
No man ever gave up his liberty merely for the good of the public. Such a chimera exists only in romances. Every individual wishes, if possible, to be exempt from the compacts that bind the rest of mankind.
The multiplication of mankind, though slow, being too great, for the means
which the earth, in its natural state, offered to satisfy necessities which
every day became more numerous, obliged men to separate again, and form new societies. These naturally opposed the first, and a state of war was
transferred from individuals to nations.
Thus it was necessity that forced men to give up apart of their liberty. It
is certain, then, that every individual would choose to put into the public
stock the smallest portion possible, as much only as was sufficient to
engage others to defend it. The aggregate of these, the smallest portions possible, forms the right of punishing; all that extends beyond this, is
abuse, not justice.
Observe that by justice I understand nothing more than that bond which is necessary to keep the interest of individuals united, without which men
would return to their original state of barbarity. All punishments which
exceed the necessity of preserving this bond are in their nature unjust. We should be cautious how we associate with the word justice an idea of any
thing real, such as a physical power, or a being that actually exists. I do
not, by any means, speak of the justice of God, which is of another kind,
and refers immediately to rewards and punishments in a life to come. Consequences of the foregoing Principles.
The laws only can determine the punishment of crimes; and the authority of making penal laws can only reside with the legislator, who represents the
whole society united by the social compact. No magistrate then, (as he is
one of the society,) can, with justice, inflict on any other member of the
same society punishment that is not ordained by the laws. But as a
punishment, increased beyond the degree fixed by the law, is the just punishment with the addition of another, it follows that no magistrate, even under a pretence of zeal, or the public good, should increase the punishment already determined by the laws.
If every individual be bound to society, society is equally bound to him, by
a contract which from its nature equally binds both parties. This
obligation, which descends from the throne to the cottage, and equally binds
the highest and lowest of mankind, signifies nothing more than that it is
the interest of all, that conventions, which are useful to the greatest
number, should be punctually observed. The violation of this compact by any individual is an introduction to anarchy.
The sovereign, who represents the society itself, can only make general laws
to bind the members; but it belongs not to him to judge whether any
individual has violated the social compact, or incurred the punishment in consequence. For in this case there are two parties, one represented by the sovereign, who insists upon the violation of the contract, and the other is
the person accused who denies it. It is necessary then that there should be
a third person to decide this contest; that is to say, a judge, or
magistrate, from whose determination there should be no appeal; and this determination should consist of a simple affirmation or negation of fact.
If it can only be proved, that the severity of punishments, though not immediately contrary to the public good, or to the end for which they were intended, viz. to prevent crimes, be useless, then such severity would be contrary to those beneficent virtues, which are the consequence of enlightened reason, which instructs the sovereign to wish rather to govern men in a state of freedom and happiness than of slavery. It would also be contrary to justice and the social compact.
Of the Interpretation of Laws.
Judges, in criminal cases, have no right to interpret the penal laws,
because they are not legislators. They have not received the laws from our ancestors as a domestic tradition, or as the will of a testator, which his
heirs and executors are to obey; but they receive them from a society
actually existing, or from the sovereign, its representative. Even the
authority of the laws is not founded on any pretended obligation, or ancient convention; which must be null, as it cannot bind those who did not exist at the time of its institution; and unjust, as it would reduce men in the ages following, to a herd of brutes, without any power of judging or acting. The laws receive their force and authority from an oath of fidelity, either
tacit or expressed, which living subjects have sworn to their sovereign, in order to restrain the intestine fermentation of the private interest of individuals. From hence springs their true and natural authority. Who then
is their lawful interpreter? The sovereign, that is, the representative of society, and not the judge, whose office is only to examine if a man have or have not committed an action contrary to the laws.
In every criminal cause the judge should reason syllogistically. The major should be the general law; the minor, the conformity of the action, or its opposition to the laws; the conclusion, liberty, or punishment. If the judge
be obliged by the imperfection of the laws, or chooses to make any other or more syllogisms than this, it will be an introduction to uncertainty.
There is nothing more dangerous than the common axiom, the spirit of the laws is to be considered. To adopt it is to give way to the torrent of
opinions. This may seem a paradox to vulgar minds, which are more strongly affected by the smallest disorder before their eyes, than by the most pernicious though remote consequences produced by one false principle adopted by a nation.
Our knowledge is in proportion to the number of our ideas. The more complex these are, the greater is the variety of positions in which they may be considered. Every man hath his own particular point of view, and, at
different times, sees the same objects in very different lights. The spirit
of the laws will then be the result of the good or bad logic of the judge;
and this will depend on his good or bad digestion, on the violence of his passions, on the rank or condition. of the accused, or on his connections
with the judge, and on all those little circumstances which change the appearance of objects in the fluctuating mind of man. Hence we see the fate of a delinquent changed many times in passing through the different courts
of judicature, and his life and liberty victims to the false ideas or ill
humour of the judge, who mistakes the vague result of his own confused reasoning for the just interpretation of the laws. We see the same crimes punished in a different manner at different times in the same tribunals, the consequence of not having consulted the constant and invariable voice of the laws, but the erring instability of arbitrary interpretation.
The disorders that may arise from a rigorous observance of the letter of
penal laws are not to be compared with those produced by the interpretation of them. The first are temporary inconveniences which will oblige the legislature to correct the letter of the law, the want of preciseness and uncertainty of which has occasioned these disorders ; and this will put a
stop to the fatal liberty of explaining, the source of arbitrary and venal declamations. When the code of laws is once fixed, it should be observed in the literal sense, 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 philosopher, as well as
the ignorant, is a matter of controversy, not of fact, the people are slaves
to the magistrates. The despotism of this multitude of tyrants is more insupportable the less the distance is between the oppressor and the oppressed, more fatal than that of one, for the tyranny of many is not to be shaken off but by having recourse to that of one alone. It is more cruel, as
it meets with more opposition, and the cruelty of a tyrant is not in
proportion to his strength, but to the obstacles that oppose him.
These are the means by which security of person and property is best obtained, which is just, as it is the purpose of uniting in society; and it
is useful as each person may calculate exactly the inconveniences attending every crime. By these means, subjects will acquire a spirit of independence and liberty, however it may appear to those who dare to call the weakness of submitting blindly to their capricious and interested opinions by the sacred name of virtue.
These principles will displease those who have made it a rule with themselves to transmit to their inferiors the tyranny they suffer from their superiors. I should have every thing to fear if tyrants were to read my
book; but tyrants never read.
Of the Obscurity of Laws.
If the power of interpreting laws be an evil, obscurity in them must be another, as the former is the consequence of the latter. This evil will be
still greater if the laws be written in a language unknown to the people; who, being ignorant of the consequences of their own actions, become necessarily dependent on a few, who are interpreters of the laws, which, instead of being public and general, are thus rendered private and
particular. What must we think of mankind when we reflect, that such is the established custom of the greatest part of our polished and enlightened Europe? Crimes will be less frequent in proportion as the code of laws is more universally read and understood; for there is no doubt but that the eloquence of the passions is greatly assisted by the ignorance and uncertainty of punishments.
Hence it follows, that, without written laws, no society will ever acquire a fixed form of government, in which the power is vested in the whole, and not in any part of the society; and in which the laws are not to be altered but
by the will of the whole, nor corrupted by the force of private interest. Experience and reason show us that the probability of human traditions diminishes in proportion as they are distant from. their sources. How then can laws resist the inevitable force of time, if there be not a lasting monument of the social compact.
Hence we see the use of printing, which alone makes the public, and not a
which by diffusing literature, has gradually dissipated the gloomy spirit of cabal and intrigue. To this art it is owing that the atrocious crimes of our ancestors, who were alternately slaves and tyrants, are become less frequent. Those who are acquainted with the history of the two or three last centuries may observe, how from the lap of luxury and effeminacy have sprung the most tender virtues, humanity, benevolence, and toleration of human errors. They may contemplate the effects of what was so improperly called ancient simplicity and good faith; humanity groaning under implacable superstition, the avarice and ambition of a few staining with human blood
the drones and palaces of kings, secret treasons and public massacres, every noble a tyrant over the people, and the ministers of the gospel of Christ
bathing their hands in blood in the name of the God of all mercy. We may
talk as we please of the corruption and degeneracy of the present age, but happily we see no such horrid examples of cruelty and oppression.
Of the Proportion between Crimes and Punishments.
It is not only the common interest of mankind that crimes should not be committed, but that crimes of every kind should be less frequent, in
proportion to the evil they produce to society. Therefore the means made use of by the legislature to prevent crimes should be more powerful in
proportion as they are destructive of the public safety and happiness, and
as the inducements to commit them are stronger. Therefore there ought to be a fixed proportion between crimes and punishments.
It is impossible to prevent entirely all the disorders which the passions of mankind cause in society. These disorders increase in proportion to the number of people and the opposition of private interests. If we consult
history, we shall find them increasing, in every state, with the extent of dominion. In political arithmetic, it is necessary to substitute a
calculation of probabilities to mathematical exactness. That force which continually impels us to our own private interest, like gravity, acts incessantly, unless it meets with an obstacle to oppose it. The effect of
this force are the confused series of human actions. Punishments, which I would call political obstacles, prevent the fatal effects of private
interest, without destroying the impelling cause, which is that sensibility inseparable from man. The legislator acts, in this case, like a skilful
architect, who endeavours to counteract the force of gravity by combining
the circumstances which may contribute to the strength of his edifice.
The necessity of uniting in society being granted, together with the conventions which the opposite interests of individuals must necessarily require, a scale of crimes may be formed, of which the first degree should consist of those which immediately tend to the dissolution of society, and
the last of the smallest possible injustice done to a private member of that society. Between these extremes will be comprehended all actions contrary to the public good which are called criminal, and which descend by insensible degrees, decreasing from the highest to the lowest. If mathematical
calculation could be applied to the obscure and infinite combinations of
human actions, there might be a corresponding scale of punishments, descending from the greatest to the least; but it will be sufficient that
the wise legislator mark the principal divisions, without disturbing the
order, left to crimes of the first degree be assigned punishments of the
last. If there were an exact and universal scale of crimes and punishments,
we should there have a common measure of the degree of liberty and slavery, humanity and cruelty of different nations.
Any action which is not comprehended in the above mentioned scale will not
be called a crime, or punished as such, except by those who have an interest
in the denomination. The uncertainty of the extreme points of this scale
hath produced system of morality which contradicts the laws, multitude of
laws that contradict each other, and many which expose the best men to the severest punishments, rendering the ideas of vice and virtue vague and fluctuating and even their existence doubtful. Hence that fatal lethargy of political bodies, which terminates in their destruction.
Whoever reads, with a philosophic eye, the history of nations, and their
laws, will generally find, that the ideas of virtue and vice, of a good or
bad citizen, change with the revolution of ages, not in proportion to the alteration of circumstances, and consequently conformable to the common good, but in proportion to the passions and errors by which the different lawgivers were successively influenced. He will frequently observe that the passions and vices of one age are the foundation of the morality of the following; that violent passion, the offspring of fanaticism and enthusiasm, being weakened by time, which reduces all the phenomena of the natural and moral world to an equality, become, by degrees, the prudence of the age, and an useful instrument in the hands of the powerful or artful politician.
Hence the uncertainty of our notions of honour and virtue; an uncertainty
which will ever remain, because they change with the revolutions of time,
and names survive the things they originally signified; they change with the boundaries of states, which are often the same both in physical and moral geography.
Pleasure and pain are the only springs of actions in beings endowed with sensibility. Even amongst the motives which incite men to acts of religion,
the invisible legislator has ordained rewards and punishments. From a
partial distribution of these will arise that contradiction, so little
observed, because so common, I mean that of punishing by the laws the crimes which the laws have occasioned. If an equal punishment be ordained for two crimes that injure society in different degrees, there is nothing to deter
men from committing the greater as often as it is attended with greater advantage.
Of estimating the Degree of Crimes.
The foregoing reflections authorise me to assert that crimes are only to be measured by the injury done to society.
They err, therefore, who imagine that a crime is greater or less according
to the intention of the person by whom it is committed; for this will depend
on the actual impression of objects on the senses, and on the previous disposition of the mind; both which will vary in different persons, and even
in the same person at different times according to the succession of ideas, passions, and circumstances. Upon that system it would be necessary to form, not only a particular code for every individual, but a new penal law for
every crime. Men, often with the best intention, do the greatest injury to society, and, with the worst, do it the most essential services.
Others have estimated crimes rather by the dignity of the person offended
than by their consequences to society. If this were the true standard, the smallest irreverence to the Divine Being ought to be punished with
infinitely more severity than the assassination of a monarch.
aggravate the crime. But the fallacy of this opinion will appear on the
slightest consideration of the relations between man and man, and between God and man. The relations between man and man are relations of equality. Necessity alone hath produced, from the opposition of private passions and interests, the idea of public utility, which is the foundation of human
justice. The other are relations of dependence, between an imperfect
creature and his Creator, the most perfect of beings, who has reserved to himself the sole right of being both lawgiver and judge; for he alone can, without injustice, be, at the same time, both one and the other. If he hath decreed eternal punishments for those who disobey his will, shall an insect dare to put himself in the place of divine justice, or pretend to punish for
the Almighty, who is himself all sufficient, who cannot receive impressions
of pleasure or pain, and who alone, of all other beings, acts without being acted upon? The degree of sin depends on the malignity of the heart, which
is impenetrable to finite beings. How then can the degree of sin serve as a standard to determine the degree of crimes? If that were admitted, men may punish when God pardons, and pardon when God condemns; and thus act in opposition to the Supreme Being.
Of the Division of Crimes.
We have proved then, that crimes are to be estimated by the injury done to society. This is one of those palpable truths which though evident to the meanest capacity, yet by a combination of circumstances, are only known to a few thinking men in every nation, and in every age. But opinions, worthy
only of the despotism of Asia, and passions, armed with power and authority, have, generally by insensible, and sometimes by violent impressions on the timid credulity of men, effaced those simple ideas which perhaps constituted the first philosophy of an infant society. Happily the philosophy of the
present enlightened age seems again to conduct us to the same principles, and with that degree of certainty which is obtained by a rational
examination and repeated experience.
A scrupulous adherence to order would require, that we should now examine and distinguish the different species of crimes and the modes of punishment; but they are so variable in their nature, from the different circumstances
of ages and countries, that the detail would be tiresome and endless. It
will be sufficient for my purpose to point out the most general principles,
and the most common and dangerous errors, in order to undeceive as well those who, from a mistaken zeal for liberty, would introduce anarchy and confusion, as those who pretend to reduce society in general to the
regularity of a covenant.
Some crimes are immediately destructive of society, or its representative; others attack the private security of the life, property, or honour of individuals; and a third class consists of such actions as are contrary to
the laws which relate to the general good of the community.
The first, which are of the highest degree, as they are most destructive to society, are called crimes of leze-majesty (High Treason). Tyranny and ignorance, which have confounded the clearest terms and ideas, have given this appellation to crimes of a different nature, and consequently have established the same punishment for each; and, on this occasion, as on a thousand others, men have been sacrificed victims to a word. Every crime, even of the most private nature, injures society; but every crime does not threaten its immediate destruction. Moral as well as physical actions have
of nature, by time and space; it is therefore a sophistical interpretation,
the common philosophy of slaves, that would confound the limits of things established by eternal truth.
To these succeed crimes which are destructive of the security of
individuals. This security being the principal end of all society, and to
which every citizen hath an undoubted right, it becomes indispensably necessary, that to these crimes the greatest of punishments should be assigned.
The opinion, that every member of society has a right to do any thing that
is not contrary to the laws, without fearing any other inconveniences than
those which are the natural consequences of the action itself, is a
political dogma, which should be defended by the laws, inculcated by the magistrates, and believed by the people; a sacred dogma, without which there can be no lawful society, a just recompense for our sacrifice of that
universal liberty of action common to all sensible beings, and only limited
by our natural powers. By this principle our minds become free, active, and vigorous; by this alone we are inspired with that virtue which knows no
fear, so different from that pliant prudence, worthy of those only who can
bear a precarious existence.
Attempts, therefore, against the life and liberty of a citizen are crimes of
the highest nature. Under this head we comprehend not only assassinations
and robberies committed by the populace, but by grandees and magistrates, whose example acts with more force, and at a greater distance destroying the ideas of justice and duty among the subjects, and substituting that of the
right of the strongest, equally dangerous to those who exercise it and to
those who suffer.
Of Honour.
There is a remarkable difference between the civil laws, those jealous
guardians of life and property, and the laws of what is called honour, which particularly respects the opinion of others. Honour is a term which has been
the foundation of many long and brilliant reasonings, without annexing to it
any precise or fixed idea. How miserable is the condition of the human mind,
to which the most distant and least essential matters, the revolutions of
the heavenly bodies, are more distinctly known than the most interesting
truths of morality, which are always confused and fluctuating, as they
happen to be driven by the gales of passion, or received and transmitted by ignorance! But this will cease to appear strange, if it be considered, that
as objects, when too near the eye appear confused, so the too great vicinity
of the ideas of morality is the reason why the simple ideas of which they
are composed are easily confounded, but which must be separated before we can investigate the phenomena of human sensibility; and the intelligent
observer of human nature will cease to be surprised, that so many ties, and
such an apparatus of morality, are necessary to the security and happiness
of mankind.
Honour, then, is one of those complex ideas which are an aggregate not only
of simple ones, but of others so complicated, that, in their various modes
of affecting the human mind, they sometimes admit and sometimes exclude part of the elements of which they are composed, retaining only some few of the most common, as many algebraic quantities admit one common divisor. To find this common divisor of the different ideas attached to the word honour, it
The first laws and the first magistrates owed their existence to the
necessity of preventing the disorders which the natural despotism of
individuals would unavoidably produce. This was the object of the
establishment of society, and was, either in reality or in appearance, the principal design of all codes of laws, even the most pernicious. But the
more intimate connexions of men, and the progress of their knowledge, gave rise to an infinite number of necessities and mutual acts of friendship
between the members of society. These necessities were not foreseen by the laws, and could not be satisfied by the actual power of each individual. At
this epoch began to be established the despotism of opinion, as being the
only means of obtaining those benefits which the law could not procure, and
of removing those evils against which the laws were no security. It is
opinion, that tormentor of the wise and the ignorant, that has exalted the appearance of virtue above virtue itself. Hence the esteem of men becomes
not only useful but necessary to every one, to prevent his sinking below the common level. The ambitious man grasps at it, as being necessary to his designs; the vain man sues for it, as a testimony of his merit; the honest
man demands it, as his due; and most men consider it as necessary to their existence.
Honour, being produced after the formation of society, could not be a part
of the common deposite, and therefore, whilst we act under its influence, we return, for that instant, to a state of nature and withdraw ourselves from
the laws, which, in this case, are insufficient for our protection.
Hence it follows, that, in extreme political liberty, and in absolute
despotism, all ideas of honour disappear, or are confounded with others. In
the first case, reputation becomes useless from the despotism of the laws;
and in the second, the despotism of one man, annulling all civil existence, reduces the rest to a precarious and temporary personality. Honour, then, is one of the fundamental principles of those monarchies which are a limited despotism ; and in those, like revolutions in despotic states, it is a
momentary return to state of nature and original equality.
Of Duelling.
From the necessity of the esteem of others have arisen single combats, and they have been established by the anarchy of the laws. They are thought to have been unknown to the ancients, perhaps because they did not assemble in their temples, in their theatres, or with their friends, suspiciously armed
with swords; and, perhaps, because single combats were a common spectacle, exhibited to the people by gladiators, who were slaves, and whom freemen disdained to imitate.
In vain have the laws endeavoured to abolish this custom by punishing the offenders with death. A man of honour, deprived of the esteem of others, foresees that be must be reduced either to a solitary existence,
insupportable to a social creature, or become the object of perpetual
insult; considerations sufficient to overcome the fear of death.
What is the reason that duels are not so frequent among the common people as amongst the great? not only because they do not wear swords, but because to men of that class reputation is of less importance than it is to those of a
higher rank, who commonly regard each other with distrust and jealousy.
other writers, viz. that the best method of preventing this crime is to
punish the aggressor, that is, the person who gave occasion to the duel, and
to acquit him who, without any fault on his side, is obliged to defend that
which is not sufficiently secured to him by the laws.
Of crimes which disturb the Public Tranquillity.
Another class of crimes are those which disturb the public tranquillity and
the quiet of the citizens; such as tumults and riots in the public streets,
which are intended for commerce and the passage of the inhabitants; the discourses of fanatics, which rouse the passions of the curious multitude,
and gain strength from the number of their hearers, who, though deaf to calm and solid reasoning, are always affected by obscure and mysterious enthusiasm.
The illumination of the streets during the night at the public expense,
guards stationed in different quarters of the city, the plain and moral
discourses of religion reserved for the silence and tranquillity of
churches, and protected by authority, and harangues in support of the
interest of the public, delivered only at the general meetings of the
nation, in parliament, or where the sovereign resides, are all means to
prevent the dangerous effects of the misguided passions of the people. These should be the principal objects of the vigilance of a magistrate, and which
the French call police; but if this magistrate should act in an arbitrary
manner, and not in conformity to the code of laws) which ought to be in the hands of every member of the community, he opens a door to tyranny, which always surrounds the confines of political liberty.
I do not know of any exception to this general axiom, that Every member of society should know when he is criminal and when innocent. If censors, and,
in general, arbitrary magistrates, be necessary in any government, it
proceeds from some fault in the constitution. The uncertainty of crimes hath sacrificed more victims to secret tyranny than have ever suffered by public
and solemn cruelty.
What are, in general, the proper punishments for crimes? Is the punishment
of death really useful, or necessary for the safety or good order of
society? Are tortures and torments consistent with justice, or do they
answer the end proposed by the laws? Which is the best method of preventing crimes? Are the same punishments equally useful at all times? What influence have they on manners? These problems should be solved with that geometrical precision, which the mist of sophistry, the seduction of eloquence, and the timidity of doubt, are unable to resist. if I have no other merit than that
of having first presented to my country, with a greater degree of evidence, what other nations have written and are beginning to practice, I shall
account myself fortunate; but if by supporting the rights of mankind and of invincible truth, I shall contribute to save from the agonies of death one unfortunate victim of tyranny, or of ignorance, equally fatal, his blessing
and tears of transport will be a sufficient consolation to me for the
contempt of all mankind.
Of the Intent of Punishments.
From the foregoing considerations it is evident that the intent of
punishments is not to torment a sensible being, nor to undo a crime already
of furious fanaticism or the impotency of tyrants, can be authorised by a
political body, which, so far from being influenced by passion, should be
the cool moderator of the passions of individuals? Can the groans of a
tortured wretch recall the time past, or reverse the crime he has committed?
The end of punishment, therefore, is no other than to prevent the criminal
from doing further injury to society, and to prevent others from committing
the like offence. Such punishments, therefore, and such a mode of inflicting them, ought to be chosen, as will make the strongest and most lasting
impressions on the minds of others, with the least torment to the body of
the criminal.
Of the Credibility of Witnesses.
To determine exactly the credibility of a witness, and the force of
evidence, is an important point in every good legislation. Every man of
common sense, that is, every one whose ideas have some connection with each other, and whose sensations are conformable to those of other men, may be a witness; but the credibility of his evidence will be in proportion as he is
interested in declaring or concealing the truth. Hence it appears how
frivolous is the reasoning of those who reject the testimony of women, on
account of their weakness; how puerile it is not to admit the evidence of
those who are under sentence of death, because they are dead in law; and how irrational to exclude persons branded with infamy; for in all these cases
they ought to be credited, when they have no interest in giving false
testimony.
The credibility of a witness, then, should only diminish in proportion to
the hatred, friendship, or connections, subsisting between him and the delinquent. One witness is not sufficient for, whilst the accused denies
what the other affirms, truth remains suspended, and the right that every
one has to be believed innocent turns the balance in his favour.
The credibility of a witness is the less as the atrociousness of the crime
is greater, from the improbability of its having been committed; as in cases
of witchcraft, and acts of wanton cruelty. The writers on penal laws have
adopted a contrary principle, viz. that the credibility of a witness is
greater as the crime is more atrocious. Behold their inhuman maxim, dictated
by the most cruel imbecility. In atrocissimis, leviores conjecturae
sufficiunt, & licit judici jura transgredi. Let us translate this sentence,
that mankind may see one of the many unreasonable principles to which they
are ignorantly subject. In the most atrocious crimes, the slightest
conjectures are sufficient, and the judge is allowed to exceed the limits of
the law. The absurd practices of legislators are often the effect of
timidity, which is a principal source of the contradictions of mankind. The legislators, (or rather lawyers, whose opinions when alive were interested
and venal, but which after their death become of decisive authority, and are
the sovereign arbiters of the lives and fortunes of men), terrified by the condemnation of some innocent person, have burdened the law with pompous and useless formalities, the scrupulous observance of which will place
anarchical impunity on the throne of justice; at other times, perplexed by
atrocious crimes of difficult proof, they imagined themselves under a
necessity of superseding the very formalities established by themselves; and thus, at one time with despotic impatience, and at another with feminine
timidity, they transform their solemn judgments into a game of hazard.
number of men should be deceived than that any person should exercise a power which God hath refused to every created being. In like manner, in
cases of wanton cruelty, the presumption is always against the accuser; for no man is cruel without some interest, without some motive of fear or hate. There are no spontaneous or superfluous sentiments in the heart of man; they are all the result of impressions on the senses.
The credibility of a witness may also be diminished by his being a member of a private society, whose customs and principles of conduct are either not known or are different from those of the public. Such a man has not only his own passions, but those of the society of which he is a member.
Finally, the credibility of a witness is still when the question relates to
the words of a criminal; for the tone of voice, the gesture, all that
precedes, accompanies, and follows the different ideas which men annex to the same words, may so alter and modify a man's discourse, that it is almost impossible to repeat them precisely in the manner in which they were spoken. Besides, violent and uncommon actions, such as real crimes, leave a trace in the multitude of circumstances that attend them, and in their effects; but words remain only in the memory of the hearers, who are commonly negligent or prejudiced. It is infinitely easier, then, to found an accusation on the
words than an the actions of a man; for in these the number of circumstances urged against the accused afford him variety of means of justification.
Of Evidence and the Proofs of a Crime, and of the Form of Judgment.
The following general theorem is of great use determining the certainty of a fact. When the proofs of a crime are dependent on each other, that is, when the evidence of each witness, taken separately, proves nothing, or when all the proofs are dependent upon one, the number of proofs neither increase nor diminish the probability of the fact; foe the force of the whole is no
greater than the force of that on which they depend, and if this fails, they
all fall to the ground. When the proofs are independent on each other, the probability of the fact increases in proportion to the number of proofs; for
the falsehood of the one does not diminish the veracity of another.
It may seem extraordinary that I speak of probability with regard to crimes, which to deserve a punishment, must be certain. But this paradox will vanish when it is considered, that, strictly speaking, moral certainty is only probability, but which is called a certainty, because every man in his
senses assents to it from an habit produced by the necessity of acting, and which is anterior to all speculation. That certainty which is necessary to decide that the accused is guilty is the very same which determines every man in the most important transactions of his life.
The proofs of a crime may be divided into two classes, perfect and
imperfect. I call those perfect which exclude the possibility of innocence; imperfect, those which do not exclude this possibility. Of the first, one
only is sufficient for condemnation; of the second, as many are required as form a perfect proof; that is to say, that though each of these, separately taken, does not exclude the possibility of innocence, it is nevertheless excluded by their union. It should be also observed, that the imperfect proofs, of which the accused, if innocent, might clear himself, and does not become perfect.
But it is much easier to feel this moral certainty of proofs than to define
assistants to the principal judge, and those chosen by lot; for that
ignorance which judges by its feelings is less subject to error than the knowledge or the laws which judges by opinion. Where the laws are clear and precise, the office of the judge is merely to ascertain the fact. If, in
examining the proofs of a crime, acuteness and dexterity be required, if clearness and precision be necessary in summoning up the result, to judge of
the result itself nothing is wanting but plain and ordinary good sense, a
less fallacious guide than the knowledge, of a judge, accustomed to find
guilty, and to reduce all things to an artificial system borrowed from his
studies. Happy the nation where the knowledge of the law is not a science!
It is an admirable law which ordains that every man shall be tried by his
peers; for, when life, liberty and fortune, are in question, the sentiments
which a difference of rank and fortune inspires should be silent; that
superiority with which the fortunate look upon the unfortunate, and that
envy with which the inferior regard their superiors, should have no
influence. But when the crime is an offence against a fellow-subject, one
half of the judges should be peers to the accused, and the other peers to
the person offended: so that all private interest, which, in spite of
ourselves, modifies the appearance of objects, even in the eyes of the most equitable, is counteracted, and nothing remains to turn aside the direction
of truth and the laws. It is also just that the accused should have the
liberty of excluding a certain number of his judges; where this liberty is,
enjoyed for a long time, without any instance to the contrary, the criminal
seems to condemn himself.
All trials should be public, that opinion, which is the best, or perhaps the
only cement of society, may curb the authority of the powerful, and the
passions of the judge, and that the people may say, "We are protected by the laws; we are not slaves"; a sentiment which inspires courage, and which is
the best tribute to a sovereign who knows his real interest. I shall not
enter into particulars. There may be some persons who expect that I should
say all that can be said upon this subject; to such what I have already
written must be unintelligible.
Of secret Accusations.
Secret accusations are a manifest abuse, but consecrated by custom in many nations, where, from the weakness of the government, they are necessary.
This custom makes men false and treacherous. Whoever suspects another to be an informer, beholds in him an enemy; and from thence mankind are accustomed to disguise their real sentiments; and, from the habit of concealing them
from others, they at last even hide them from themselves. Unhappy are those who have arrived at this point! without any certain and fixed principles to
guide them, they fluctuate in the vast sea of opinion, and are busied only
in escaping the monsters which surround them: to those the present is always embittered by the uncertainty of the future; deprived of the pleasures of tranquillity and security, some fleeting moments of happiness, scattered
thinly through their wretched lives, console them for the misery of
existing. Shall we, amongst such men, find intrepid soldiers, to defend
their king and country? Amongst such men shall we find incorruptible magistrates, who, with the spirit of freedom and patriotic eloquence, will
support and explain the true interest of their sovereign; who, with the
tributes, offer up at the throne the love and blessing of the people, and
thus bestow on the palaces of the great and the humble cottage peace and security, and to the industrious a prospect of bettering their lot that
Who can defend himself from calumny, armed with that impenetrable shield of tyranny, secrecy? What a miserable government must that be where the sovereign suspects an enemy in every subject, and, to secure the
tranquillity of the public, is obliged to sacrifice the repose of every
individual.
By what argument is it pretended that secret accusations may be justified? The public safety, say they, and the security and maintenance of the established form of government. But what a strange constitution is that
where the government which hath in its favour not only power, but opinion, still more efficacious, yet fears its own subjects? The indemnity of the informer; do not the laws defend him sufficiently? and are there subjects
more powerful than the laws? The necessity of protecting the informer from infamy; then secret calumny is authorised, and punished only when public. The nature of the crime; if actions, indifferent in themselves, or even
useful to the public, were called crimes, both the accusation and the trial could never be too secret. But can there be any crime committed against the public which ought not to be publicly punished? I respect all governments; and I speak not of any one in particular. Such may sometimes be the nature
of circumstances, that, when abuses are inherent in the constitution, it may be imagined, that to rectify them would be to destroy the constitution
itself. But, were I to dictate new laws in a remote corner of the universe,
the good of posterity, ever present to my mind, would hold back my trembling hand, and prevent me from authorising secret accusations.
Public accusations, says Montesquieu, are more conformable to the nature of a republic, where zeal for the public good is the principal passion of a
citizen, than of a monarchy, in which, as this sentiment is very feeble,
from the nature of the government, the best establishment is that of commissioners, who, in the name of the public, accuse the infractors of the laws. But in all governments, as well in a republic as in a monarchy, the punishment due to the crime of which one accuses another ought to be inflicted on the informer.
Of Torture.
The torture of a criminal during the course of his trial is a cruelty
consecrated by custom in most nations. It is used with an intent either to make him confess his crime, or to explain some contradictions into which he had been led during his examination, or discover his accomplices, or for
some kind of metaphysical and incomprehensible purgation of infamy, or, finally, in order to discover other crimes of which he is not accused, but
of which he may be guilty.
No man can be judged a criminal until he be found guilty; nor can society
take from him the public protection until it have been proved that he has violated the conditions on which it was granted. What right, then, but that
of power, can authorise the punishment of a citizen so long as there remains any doubt of his guilt? This dilemma is frequent. Either he is guilty, or
not guilty. If guilty, he should only suffer the punishment ordained by the laws, and torture becomes useless, as his confession is unnecessary, if he
be not guilty, you torture the innocent; for, in the eye of the law, every
man is innocent whose crime has not been proved. Besides, it is confounding all relations to expect that a man should be both the accuser and accused; and that pain should be the test of truth, as if truth resided in the
escape, and the feeble be condemned. These are the inconveniences of this pretended test of truth, worthy only of a cannibal, and which the Romans, in many respects barbarous, and whose savage virtue has been too much admired, reserved for the slaves alone.
What is the political intention of punishments? To terrify and be an example
to others. Is this intention answered by thus privately torturing the guilty
and the innocent? It is doubtless of importance that no crime should remain unpunished; but it is useless to make a public example of the author of a
crime hid in darkness. A crime already committed, and for which there can be no remedy, can only be punished by a political society with an intention
that no hopes of impunity should induce others to commit the same. If it be true, that the number of those who from fear or virtue respect the laws is
greater than of those by whom they are violated, the risk of torturing an
innocent person is greater, as there is a greater probability that, c鎡eris paribus, an individual hath observed, than that he hath infringed the laws.
There is another ridiculous motive for torture, namely, to purge a man from infamy. Ought such an abuse to be tolerated in the eighteenth century? Can pain, which is a sensation, have any connection with a moral sentiment, a matter of opinion? Perhaps the rack may be considered as the refiner's furnace.
It is not difficult to trace this senseless law to its origin; for an
absurdity, adopted by a whole nation, must have some affinity with other
ideas established and respected by the same nation. This custom seems to be the offspring of religion, by which mankind, in all nations and in all ages,
are so generally influenced. We are taught by our infallible church, that
those stains of sin contracted through human frailty, and which have not deserved the eternal anger of the Almighty, are to be purged away in another
life by an incomprehensible fire. Now infamy is a stain, and if the
punishments and fire of purgatory can take away all spiritual stains, why
should not the pain of torture take away those of a civil nature? I imagine,
that the confession of a criminal, which in some tribunals is required as
being essential to his condemnation, has a similar origin, and has been
taken from the mysterious tribunal of penitence, were the confession of sins
is a necessary part of the sacrament. Thus have men abused the unerring
light of revelation; and, in the times of tractable ignorance, having no
other, they naturally had recourse to it on every occasion, making the most remote and absurd applications. Moreover, infamy is a sentiment regulated neither by the laws nor by reason, but entirely by opinion; but torture
renders the victim infamous, and therefore cannot take infamy away.
Another intention of torture is to oblige the supposed criminal to reconcile
the contradictions into which he may have fallen during his examination; as
if the dread of punishment, the uncertainty of his fate, the solemnity of
the court, the majesty of the judge, and the ignorance of the accused, were
not abundantly sufficient to account for contradictions, which are so common
to men even in a state of tranquillity, and which must necessarily be
multiplied by the perturbation of the mind of a man entirely engaged in the thoughts of saving himself from imminent danger.
This infamous test of truth is a remaining monument of that ancient and
savage legislation, in which trials by fire, by boiling water, or the
uncertainty of combats, were called judgments of God; as if the links of
that eternal chain, whose beginning is in the breast of the first cause of
all things, could ever be disunited by the institutions of men. The only
event of the first depends on the will of the accused, and of the second on
a fact entirely physical and external: but this difference is apparent only,
not real. A man on the rack, in the convulsions 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 act of the will is invariably in proportion to the force of the
impression on our senses. The impression of pain, then, may increase to such
a degree, that, occupying the mind entirely, it will compel the sufferer to
use the shortest method of freeing himself from torment. His answer,
therefore, will be an effect as necessary as that of fire or boiling water,
and he will accuse himself of crimes of which he is innocent: so that the
very means employed to distinguish the innocent from the guilty will most effectually destroy all difference between them.
It would be superfluous to confirm these reflections by examples of innocent persons who, from the agony of torture, have confessed themselves guilty: innumerable instances may be found in all nations, and in every age. How amazing that mankind have always neglected to draw the natural conclusion! Lives there a man who, if he has carried his thoughts ever so little beyond
the necessities of life, when he reflects on such cruelty, is not tempted to
fly from society, and return to his natural state of independence?
The result of torture, then, is a matter of calculation, and depends on the constitution, which differs in every individual, and it is in proportion to
his strength and sensibility; so that to discover truth by this method, is a problem which may be better solved by a mathematician than by a judge, and may be thus stated: The force of the muscles and the sensibility of the
nerves of an innocent person being given, it is required to find the degree
of pain necessary to make him confess himself guilty of a given crime.
The examination of the accused is intended to find out the truth; but if
this be discovered with so much difficulty in the air, gesture, and
countenance of a man at case, how can it appear in a countenance distorted
by the convulsions of torture? Every violent action destroys those small alterations in the features which sometimes disclose the sentiments of the heart.
These truths were known to the Roman legislators, amongst whom, as I have already observed, slaves only, who were not considered as citizens, were tortured. They are known to the English a nation in which the progress of science, superiority in commerce, riches, and power, its natural
consequences, 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 abolished. They are known to one of the
wisest monarchs in Europe, who, having seated philosophy on the throne by
his beneficent legislation, has made his subjects free, though dependent on
the laws; the only freedom that reasonable men can desire in the present
state of things. In short, torture has not been thought necessary in the
laws of armies, composed chiefly of the dregs of mankind, where its use
should seem most necessary. Strange phenomenon! that a set of men, hardened by slaughter, and familiar with blood, should teach humanity to the sons of peace.
It appears also that these truths were known, though imperfectly, even to
those by whom torture has been most frequently practised; for a confession made during torture, is null, if it be not afterwards confirmed by an oath,
nations permit this infamous petitio principii to be only three times
repeated, and others leave it to the discretion of the judge; therefore, of
two men equally innocent, or equally guilty, the most robust and resolute
will be acquitted, and the weakest and most pusillanimous will be condemned, in consequence of the following excellent mode of reasoning. I, the judge, must find some one guilty. Thou, who art a strong fellow, hast been able to resist the force of torment; therefore I acquit thee. Thou, being weaker,
hast yielded to it; I therefore condemn thee. I am sensible, that the
confession which was extorted from thee has no weight; but if thou dost not confirm by oath what thou hast already confessed, I will have thee tormented again.
A very strange but necessary consequence of the use of torture is, that the case of the innocent is worse than that of the guilty. With regard to the
first, either he confesses the crime which he has not committed, and is condemned, or he is acquitted, and has suffered a punishment he did not deserve. On the contrary, the person who is really guilty has the most favourable side of the question; for, if he supports the torture with
firmness and resolution, he is acquitted, and has gained, having exchanged a greater punishment for a less.
The law by which torture is authorised, says, Men, be insensible to pain. Nature has indeed given you an irresistible self-love, and an unalienable
right of self-preservation; but I create in you a contrary sentiment, an
heroic hatred of yourselves. I command you to accuse yourselves, and to declare the truth, amidst the tearing of your flesh, and the dislocation of
your bones.
Torture is used to discover whether the criminal be guilty of other crimes besides those of which he is accused, which is equivalent to the following reasoning. Thou art guilty of one crime, therefore it is possible that thou mayest have committed a thousand others; but the affair being doubtful I
must try it by my criterion of truth. The laws order thee to be tormented because thou art guilty, because thou mayest be guilty, and because I choose thou shouldst be guilty.
Torture is used to make the criminal discover his accomplices; but if it has been demonstrated that it is not at a proper means of discovering truth, how can it serve to discover the accomplices, which is one of the truths
required? Will not the man who accuses himself yet more readily accuse others? Besides, is it just to torment one man for the crime of another? May not the accomplices be found out by the examination of the witnesses, or of the criminal; from the evidence, or from the nature of the crime itself; in short, by all the means that have been used to prove the guilt of the
prisoner? The accomplices commonly fly when their comrade is taken. The uncertainty of their fate condemns them to perpetual exile, and frees
society from the danger of further injury; whilst the punishment of the criminal, by deterring others, answers the purpose for which it was
ordained.
Of pecuniary Punishments.
There was a time when all punishments were pecuniary. The crimes of the subjects were the inheritance of the prince. An injury done to society was a favour to the crown; and the sovereign and magistrates, those guardians of
the public security, were interested in the violation of the laws. Crimes
civil suit between the person accused and the crown. The magistrate then had other powers than were necessary for the public welfare, and the criminal suffered other punishments than the necessity of example required. The judge was rather a collector for the crown, an agent for the treasury, than a
protector and minister of the laws. But according to this system, for a man
to confess himself guilty was to acknowledge himself a debtor to the crown; which was, and is at present (the effects continuing after the causes have ceased) the intent of all criminal causes. Thus, the criminal who refuses to confess his crime, though convicted by the most undoubted proofs, will
suffer a less punishment than if he had confessed; and he will not be put to
the torture to oblige him to confess other crimes which he might have committed, as he has not confessed the principal. But the confession being
once obtained, the judge becomes master of his body, and torments him with a studied formality, in order to squeeze out of him all the profit possible. Confession, then, is allowed to be a convincing proof, especially when
obtained by the force of torture; at the same time that an extrajudicial confession, when a man is at ease and under no apprehension, is not
sufficient for his condemnation.
All inquiries which may serve to clear up the fact, but which may weaken the pretensions of the crown, are excluded. It was not from compassion to the criminal, or from considerations of humanity, that torments were sometimes spared, but out of fear of losing those rights which at present appear
chimerical and inconceivable. The judge becomes an enemy to the accused, to a wretch a prey to the horrors of a dungeon, to 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 snares to make him convict himself; he fears lest he should not succeed in finding him guilty, and lest
that infallibility which every man arrogates to himself should be called in question. It is in the power of the magistrate to determine what evidence is sufficient to send a man to prison; that he may be proved innocent, he must
first be supposed guilty. This is what is called an offensive prosecution;
and such are all criminal proceedings in the eighteenth century, in all
parts of our polished Europe. The true prosecution, for information, that
is, an impartial inquiry into the fact, that which reason prescribes, which
military laws adopt, and which Asiatic despotism allows in suits of one
subject against another, is very little practised in any courts of justice.
What a labyrinth of absurdities! Absurdities which will appear increditable
to happier posterity. The philosopher only will be able to read, in the
nature of man, the possibility of there ever having been such a system.
Of Oaths.
There is a palpable contradiction between the laws and the natural
sentiments of mankind in the case of oaths, which are administered to a
criminal to make him speak the truth, when the contrary is his greatest interest; as if a man could think himself obliged to contribute to his own destruction, and as if, when interest speaks, religion was not generally
silent, religion, which in all ages hath, of all other things, been most
commonly abused: and indeed, upon what motive should it be respected by the wicked, when it has been thus violated by those who were esteemed the wisest of men? The motives which religion opposes to the fear of impending evil and the love of life are too weak, as they are too distant, to make any
impression on the senses. The affairs of the other world are regulated by
laws entirely different from those by which human affairs are directed; why
then should you endeavour to compromise matters between them? Why should a