12.4. 4. That Liberty is favoured by the Nature and Proportion of Punishments.
Liberty is in perfection when criminal laws derive each
punishment from the particular nature of the crime. There are then no
arbitrary decisions; the punishment does not flow from the
capriciousness of the legislator, but from the very nature of the thing;
and man uses no violence to man.
There are four sorts of crimes. Those of the first species are
prejudicial to religion, the second to morals, the third to the public
tranquillity, and the fourth to the security of the subject. The
punishments inflicted for these crimes ought to proceed from the nature
of each of these species.
In the class of crimes that concern religion, I rank only those
which attack it directly, such as all simple sacrileges. For as to
crimes that disturb the exercise of it, they are of the nature of those
which prejudice the tranquillity or security of the subject, and ought
to be referred to those classes.
In order to derive the punishment of simple sacrileges from the
nature of the thing,
[8]
it should consist in depriving people of the
advantages conferred by religion in expelling them out of the temples,
in a temporary or perpetual exclusion from the society of the faithful,
in shunning their presence, in execrations, comminations, and
conjurations.
In things that prejudice the tranquillity or security of the state,
secret actions are subject to human jurisdiction. But in those which
offend the Deity, where there is no public act, there can be no criminal
matter, the whole passes between man and God, who knows the measure and
time of His vengeance. Now if magistrates, confounding things, should
inquire also into hidden sacrileges, this inquisition would be directed
to a kind of action that does not at all require it: the liberty of the
subject would be subverted by arming the zeal of timorous as well as of
presumptuous consciences against him.
The mischief arises from a notion which some people have entertained
of revenging the cause of the Deity. But we must honour the Deity and
leave him to avenge his own cause. And, indeed, were we to be directed
by such a notion, where would be the end of punishments? If human laws
are to avenge the cause of an infinite Being, they will be directed by
his infinity, and not by the weakness, ignorance, and caprice of man.
An historian
[9]
of Provence relates a fact which furnishes us with
an excellent description of the consequences that may arise in weak
capacities from the notion of avenging the Deity's cause. A Jew was
accused of having blasphemed against the Virgin Mary; and upon
conviction was condemned to be flayed alive. A strange spectacle was
then exhibited: gentlemen masked, with knives in their hands, mounted
the scaffold, and drove away the executioner, in order to be the
avengers themselves of the honour of the blessed Virgin. I do not here
choose to anticipate the reflections of the reader.
The second class consists of those crimes which are prejudicial to
morals. Such is the violation of public or private continence, that is,
of the police directing the manner in which the pleasure annexed to the
conjunction of the sexes is to be enjoyed. The punishment of those
crimes ought to be also derived from the nature of the thing; the
privation of such advantages as society has attached to the purity of
morals, fines, shame, necessity of concealment, public infamy, expulsion
from home and society, and, in fine, all such punishments as belong to a
corrective jurisdiction, are sufficient to repress the temerity of the
two sexes. In effect these things are less founded on malice than on
carelessness and self-neglect.
We speak here of none but crimes which relate merely to morals, for
as to those that are also prejudicial to the public security, such as
rapes, they belong to the fourth species.
The crimes of the third class are those which disturb the public
tranquillity. The punishments ought therefore to be derived from the
nature of the thing, and to be in relation to this tranquillity; such as
imprisonment, exile, and other like chastisements proper for reclaiming
turbulent spirits, and obliging them to conform to the established
order.
I confine those crimes that injure the public tranquillity to things
which imply a bare offence against the police; for as to those which by
disturbing the public peace attack at the same time the security of the
subject, they ought to be ranked in the fourth class.
The punishments inflicted upon the latter crimes are such as are
properly distinguished by that name. They are a kind of retaliation, by
which the society refuses security to a member who has actually or
intentionally deprived another of his security. These punishments are
derived from the nature of the thing, founded on reason, and drawn from
the very source of good and evil. A man deserves death when he has
violated the security of the subject so far as to deprive, or attempt to
deprive, another man of his life. This punishment of death is the
remedy, as it were, of a sick society. When there is a breach of
security with regard to property, there may be some reasons for
inflicting a capital punishment: but it would be much better, and
perhaps more natural, that crimes committed against the security of
property should be punished with the loss of property; and this ought,
indeed, to be the case if men's fortunes were common or equal. But as
those who have no property of their own are generally the readiest to
attack that of others, it has been found necessary, instead of a
pecuniary, to substitute a corporal, punishment.
All that I have here advanced is founded in nature, and extremely
favourable to the liberty of the subject.
Footnotes
[8]
St. Louis made such severe laws against those who swore that the
pope thought himself obliged to admonish him for it. This prince
moderated his zeal, and softened his laws. See his "Ordinances."
